IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAVONTAE A. FELIX, DEFENDANT AND APPELLANT.
(Solano County Super. Ct. No. 250009)
The opinion of the court was delivered by: Dondero, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant's motion to suppress evidence (Pen. Code, § 1538.5) and dismiss an amended information (Pen. Code, § 995) was denied, he entered a plea of no contest to second degree robbery (Pen. Code, § 211), and two counts of attempted second degree robbery (Pen. Code, §§ 664, 211), which he admitted were strike convictions (Pen. Code, §§ 667, 1170.12). He also admitted personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) associated with each conviction, and that he suffered a prior juvenile strike conviction for robbery (Pen. Code, § 211). In accordance with the plea agreement defendant was sentenced to a term of seven years in state prison.
In this appeal he renews his claim that a warrantless search of his residence was unlawful, and statements taken from him thereafter were the product of the illegality. We find that the search was in all respects lawful, and affirm the judgment.
STATEMENT OF FACTS*fn1
The charges against defendant were based upon two incidents that took place nearly a week apart in the same area of Suisun City. On both occasions robbery offenses were reported to the police. The arrest and search of defendant occurred at the conclusion of the second incident and ensuing police investigation.
On the night of November 21, 2007, two victims were robbed at 706 Wigeon Way in Suisun City. Nicholas Tejano testified that as he arrived at the home of his friend Robert Aragon and walked toward the front door he was approached by someone who "[c]ame out of the bush."*fn2 The person was just under six feet tall, dressed in a "black hoodie" that covered the back of his head, with short, "rough" black hair, and slight facial hair, and was holding a black semiautomatic handgun with a silver tip. He exclaimed to Tejano, "Give me your phone." He also asked Tejano for money. Tejano gave the man his phone and $30.
According to Robert Aragon's statement to the police, he observed Tejano and another man standing near the driveway as he came out of his house. He described the man with Tejano as "a black male with a hooded sweatshirt, dark clothing," in possession of a black handgun with a silver tip. The man told Aragon, "Give me all your stuff, nigger." When Aragon declined to do so, the man "said, 'I'm not kidding. I'll cap your ass." Aragon threatened to call the police, whereupon the man fled toward Bald Pate Drive. Both Tejano and Aragon told Officer Ronald Aiello of the Suisun City Police Department that they could not identify the suspect.
Later the same night Officer Aiello contacted Rolando Aguilar on Bridgewater Circle in Suisun City, about three blocks away from Aragon's residence. Aguilar was frightened, and "had been drinking." He reported to Officer Aiello that a "black male" had approached him, asked for a cigarette, then pointed a "dark-colored gun" at his head and demanded money. When Aguilar stated that he had no money, only an ATM card, the man directed Aguilar to "go to the bank to withdraw money." After they walked a short distance Aguilar pushed the man away and "ran for his life." Aguilar described the man as a young, "dark-complected male" who was "unshaven around his chin," wearing a "dark-colored hoodie."
On the night of November 27, 2007, Officer Michael Urlaub received a report of a robbery at the Sunset Shopping Center in Suisun City. The officer met with Thomas Lish in the parking lot of the shopping center. Lish reported to Officer Urlaub that he was sitting in his car eating dinner "in front of the McDonald's," when he was approached by a "dark-skinned Black male, approximately 18 to 22 years old, thin build, approximately five-seven to five-eight," wearing baggy blue jeans and a "hooded sweatshirt" pulled over his head. The man pointed a black handgun with a silver tip through the car window and demanded that Lish "give him everything he had." When Lish said "he didn't have anything," the man said "that he was going to let him go this time and not to call the cops." The man then walked away on a path that led out of the shopping center toward Snow Drive, a residential area. Lish immediately called the police.
As Officer Urlaub escorted Lish to the police station to view a photo lineup, Officer Aiello looked in the area of the Sunset Shopping Center for "potential suspects fitting the description that Officer Urlaub had broadcast." He observed and stopped "two subjects walking" behind the shopping center, but released them when he realized they did not "fit the description." As Officer Aiello continued "driving around" a woman on the corner of Bald Pate Drive and Ring Neck Lane waved at him to get his attention. The woman "said she had just seen a person jumping into the backyard of a home" on Ring Neck Lane at the corner of Bald Pate Drive, which was located about "one-quarter mile" away from the Sunset Shopping Center. The woman also found a "hooded black sweatshirt" on "the other side of the fence" at 703 Ring Neck Lane.
Officer Aiello immediately broadcast the information and "set up a perimeter" to station officers in the area to prevent anyone from leaving. He believed that the "person who had committed this robbery" and was "potentially involved" in the other robberies "that had recently occurred within the past week," was present or "living in that vicinity." Officers were stationed around the area, including Deputy Swafford of the Solano County Sheriff's Department, who reported with his police dog.
Deputy Swafford called Officer Aiello to report that he was at 345 Bald Pate Drive, where the "scent trail" followed by his dog had ended. When Officer Aiello arrived at that location Deputy Swafford pointed out a black, "replica" semiautomatic pistol on the ground "just past the fence line on the side of the home" that appeared to be "consistent" with the handgun described by Tejano and Aragon. Officer Aiello collected the weapon, then knocked on the front door of the residence. He was greeted by Tray Horall, who said he lived there. Officer Aiello stated that he was "searching for an armed suspect," and a firearm had been found next to the garage. The officer asked permission to "enter to look in the garage and search potentially for a person who may be barricaded inside," and Horall agreed.
As Officer Aiello walked from the garage into the kitchen defendant appeared, wearing a white T-shirt and pajama bottoms. He was "unshaven around his mouth and chin." Horall stated that defendant "had left wearing a dark hooded sweatshirt and returned within the last hour." Defendant was "upset," but did not ask the officer to leave the house.
Defendant's mother, Carrie Rolling, arrived at the residence and said, "Are you going to take him now?" Rolling mentioned that defendant "had a history of robbery," and "she had turned him in before." She also told Officer Aiello that while the perimeter was in place defendant had called her from the backyard to complain that "he was locked out of the house."
Officer Aiello decided to detain and arrest defendant as a suspect in the robberies. The officer read defendant his Miranda rights and "explained to him why he had been arrested." Defendant waived his rights and admitted that he "went up to this guy at McDonald's," pointed the gun at him and "demanded money." When the victim told him he had no money defendant replied, "Just don't call the police and that will be the end of it." When asked about the incident on November 21, 2007, defendant said, "I ain't going to lie to you. I did this one."
Subsequently Tejano and Aragon were separately brought to the corner of Ring Neck Lane and Bald Pate Drive for "an in-field show-up." They both identified defendant as the man who committed the robbery offenses against them on November 21, 2007. They were also shown the replica gun found at 345 Bald Pate Drive. They recognized the gun as the one used by defendant in the robberies, particularly based on the "silver tip that was on it."
Defendant presents several objections to the warrantless seizure of the handgun, the entry into his residence, and his arrest. He also argues that all of the evidence discovered by the officers, including his incriminating statements, was the "fruit of the unlawful search and arrest." He requests that we reverse his convictions and suppress all of the evidence seized by the officers.
As with all Fourth Amendment inquiries, we evaluate the search in accordance with the ultimate standard of reasonableness by balancing the scope of the particular intrusion upon defendant's privacy, the manner in which it is conducted, the justification for it, and the "degree to which it is needed for the promotion of legitimate governmental interests." (Wyoming v. Houghton (1999) 526 U.S. 295, 300; see also Michigan v. Summers (1981) 452 U.S. 692, 699-701; People v. Smith (2009) 172 Cal.App.4th 1354, 1364.) "In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court's application of the law to the facts." (People v. Jenkins (2000) 22 Cal.4th 900, 969.) "Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, on appeal all presumptions favor the trial court's proper exercise of that power." (People v. Bowers (2004) 117 Cal.App.4th 1261, 1271.)
The "determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional." (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.) " 'We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.' " (People v. Lim (2000) 85 Cal.App.4th 1289, 1296, quoting from People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)
I. The Discovery and Seizure of the Replica Handgun.
Defendant argues that Officer Aiello made an unlawful entry into his yard to discover and seize the black replica handgun. Defendant begins his argument with the obvious observation that the officers did not have a warrant to enter or search the premises. He also claims that the gun was not observed "in plain view" from a place where the officers had "a lawful right of access to the object itself." (Horton v. California (1990) 496 U.S. 128, 137.)
We of course express our agreement with defendant on a fundamental premise of search and seizure law. Absent exceptional circumstances in which a search warrant is not needed, a law enforcement officer "must obtain a warrant from a judicial officer before conducting a search or seizure" of a residence. (People v. Williams (1999) 20 Cal.4th 119, 125.) " ' "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." ' [Citation.]" (People v. Hochstraser (2009) 178 Cal.App.4th 883, 895.)
We also agree with defendant that the record before us is less than comprehensive. Significantly, the evidence presented at the hearing does not definitively provide us with the crucial details of the officers' observation of the handgun. We know the gun was observed in the yard of defendant's residence, but we do not know where the officers were when the observation was made. Officer Aiello testified that when he "went in" to the property Deputy Swafford directed him to "to an area just past the fence line on the side of the home" where the black handgun was located "on the ground." We cannot discern from the evidence that the observation of the gun was made from the public road or sidewalk, or instead from the yard itself after the officers had already entered the premises.
The omission is important. The plain-view doctrine authorizes the seizure of an item without the endorsement of a warrant " 'if the police lawfully are in a position from which they view the item, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object.' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 166; see also People v. Kraft (2000) 23 Cal.4th 978, 1043; People v. Frederick (2006) 142 Cal.App.4th 400, 410.) " '[O]bservations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. On the other hand, when observations are made from a position to which the officer has not been expressly or implicitly invited, the intrusion is unlawful unless executed pursuant to a warrant or one of the established exceptions to the warrant requirement.' [Citation.]" (People v. Camacho (2000) 23 Cal.4th 824, 832.) While a public place includes the area outside a home in which a stranger is able to walk without challenge, it does not include a location guarded by a fence or locked door which is notreadily accessible to the public. (See People v. Strider (2009) 177 Cal.App.4th 1393, 1404.) " '[A] resident of a house [may] rely justifiably upon the privacy of the surrounding areas as a protection from the peering of the officer unless such residence is "exposed" to that intrusion by the existence of public pathways or other invitations to the public to enter upon the property. This justifiable reliance on the privacy of the non-common portions of the property surrounding one's residence thus leads to the particular rule that searches conducted without a warrant from such parts of the property always are unconstitutional unless an exception to the warrant requirement applies.' [Citations.]" (People v. Camacho, supra, at p. 832.)
Where, as here, police conduct a search or seizure without a warrant, "the prosecution has the burden of showing the officers' actions were justified by an exception to the warrant requirement." (People v. Strider, supra, 177 Cal.App.4th 1393, 1400.) Without a record that discloses to us that the officers observed the gun from a public place, the prosecution cannot rely merely on the plain-view doctrine to justify the seizure. Assuming the gun was observed in plain sight from inside the yard, we must determine if the evidence otherwise establishes that the officers were justified in entering onto the premises to make the observation.
"The presumption of unreasonableness that attaches to a warrantless entry into the home 'can be overcome by a showing of one of the few "specifically established and well-delineated exceptions" to the warrant requirement [citation], such as " 'hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling' " [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape.' [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 817-818, italics added, original italics omitted; see also People v. Celis (2004) 33 Cal.4th 667, 676.)
" 'There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.' [Citation.]" (People v. Ortiz (1995) 32 Cal.App.4th 286, 291-292.) " 'Generally, a court will find a warrantless entry justified if the facts available to the officer at the moment of the entry would cause a person of reasonable caution to believe that the action taken was appropriate.' [Citation.]" (People v. Hochstraser, supra, 178 Cal.App.4th 883, 895, italics omitted.)
We find that the observation of the gun occurred while the officers were engaged in hot pursuit of an armed robbery suspect. The officers responded to the report of an attempted robbery in close proximity to the residence - only one-quarter mile away from the Sunset Shopping Center. Officer Aiello also legitimately suspected that the same person may have been involved in robberies that were committed less than a week before in the same neighborhood by a suspect who also lived nearby. A woman reported to Officer Aiello that she observed someone jump into the backyard of a home on Ring Neck Lane at the corner of Bald Pate Drive, and a "hooded black sweatshirt" was found there. To contain the robbery suspect, Officer Aiello "set up a perimeter" of police officers. The time frame between the attempted robbery offense and the observation of the gun was not specified by Officer Aiello, but it was, he estimated, definitely less than an hour. As we view the evidence, the police were engaged in a continuous pursuit of the suspect to the yard from the scene of the crime. Under all of the circumstances presented, the warrantless entry onto the premises was lawful under the hot pursuit exception to the warrant requirement.
Defendant incorrectly asserts that the record lacks evidence "the gun was in plain view," or that Officer Aiello had "separate probable cause" for his entry into the yard. Officer Aiello testified that he was directed to the gun by Deputy Swafford, who followed a "scent trail" with his dog to the yard. Swafford pointed out to Officer Aiello a "black handgun which was on the ground" at that location. The inference drawn from the testimony is that the gun was visible in plain view to Deputy Swafford.
Defendant's objection that Officer Aiello's reliance on information obtained from Deputy Swafford was "improper based on the Harvey-Madden line of cases," is unfounded. "It is well settled in California officers can make arrests based on information and probable cause furnished by other officers. [Citations.] These cases, however, require that when the first officer passes off information through 'official channels' that leads to arrest, the officer must also show basis for his probable cause. In other words, the so-called 'Harvey-Madden' rule requires [that] the basis for the first officer's probable cause must be 'something other than the imagination of an officer who does not become a witness.' [Citation.]" (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553.) Probable cause for a detention or search or seizure "without a warrant may be proven by information passed from one officer to another if it is shown the information was ' " 'factual rather than conclusionary,' related 'specific and articulable facts,' was the product of personal observations by the informing officer, and was reliable." [Citations.]' [Citation.] Ultimately, the issue boils down to whether the latter officer's reliance on the information was reasonable." (People v. Gomez (2004) 117 Cal.App.4th 531, 540.) The source of the information acted upon by Officer Aiello was Deputy Swafford, who with his police dog personally followed a "scent trail" to the residence and found the gun. He was a reliable source of information and his personal observation of the gun had a proper factual foundation. (See People v. Bennett (1998) 17 Cal.4th 373, 390-391; People v. Ramey (1976) 16 Cal.3d 263, 269; People v. Stanley (1999) 72 Cal.App.4th 1547, 1554-1555.) Deputy Swafford directly communicated his observation to Officer Aiello. Reliance on the factually based information thus traced through official channels and ultimately conveyed to Officer Aiello was eminently reasonable. (In re Richard G. (2009) 173 Cal.App.4th 1252, 1259-1260; Ramirez, supra, at pp. 1553-1554.)
The warrantless seizure of the handgun, once observed, was also justified. " '[T]he police may seize any evidence that is in plain view during the course of their legitimate emergency activities.' [Citation.]" (People v. Hochstraser, supra, 178 Cal.App.4th 883, 902.) However, the incriminating character of the item as contraband or evidence of a crime must be "immediately apparent" to the officers. (People v. Kraft, supra, 23 Cal.4th 978, 1041.) "The incriminating nature of the item is 'immediately apparent' when the police have probable cause to believe it is contraband or evidence of a crime; officers need not know, to a near certainty, that the item is evidence of a crime. [Citations.]" (People v. Gallegos (2002) 96 Cal.App.4th 612, 623.) " 'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. [Citation.] "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts . . . ." [Citation.] It is incapable of precise definition. [Citation.] " 'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' " and that belief must be "particularized with respect to the person to be . . . seized." [Citation.]' [Citation.]" (People v. Thompson, supra, 38 Cal.4th 811, 818.) Officer Aiello had ample probable cause to believe that the replica handgun was the weapon used in the robbery offenses. As he testified, the gun was quite similar in appearance to the one described by the robbery victims, and it had been traced from the scene of the most recent offense. The seizure of the gun was lawful.
II. The Entry into the Residence.
We turn to defendant's claim that the officer's warrantless entry into his residence was not properly based on an "emergency." He also objects that the consent to search thereafter was obtained by the officer from "just a cotenant." Defendant claims that his subsequent expression of disagreement to the search vitiated the consent given by the tenant.
We find that the hot pursuit of the suspect did not end with the discovery of the gun. Although the gun was found, the suspect remained at-large. Officer Aiello had good reason to continue his urgent search for the suspect. The hot pursuit continued to the front door of the residence. And in any event, the officer did not require a warrant to approach the front door, contact an occupant of the residence, and request consent to enter. (People v. Rivera (2007) 41 Cal.4th 304, 310-311; People v. Jenkins (2004) 119 Cal.App.4th 368, 372.)
Once Officer Aiello appeared at the front door of the residence, he received consent to enter from Tray Horall. In response to Officer Aiello's request for permission to look inside for an armed suspect, Horall represented that he lived at the residence and agreed to allow the officer to enter and search.
We conclude that the consent obtained from Horall was valid. "A recognized exception to the Fourth Amendment's proscription against warrantless searches is a search that is based upon consent." (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1198.) A knowing and voluntary consent to search allows an officer to forgo obtaining a warrant. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222; Walker, supra, at p. 1198.) Further, a "third party who possesses common authority over the premises" may consent to the search. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 (Rodriguez). "The sanctity of the home is not threatened when police approach a residence, converse with the homeowner, and properly obtain consent to search. The Fourth Amendment's prohibition against warrantless searches of homes does not apply when voluntary consent to the search has been given by someone authorized to do so." (People v. Rivera, supra, 41 Cal.4th 304, 311.)
Nothing in the record indicates to us that the consent Horall gave to Officer Aiello was other than voluntary. The evidence also demonstrates that Horall at least appeared to the officer to have authority to agree to the search. To establish consent, the prosecution was required to prove that the officers reasonably and in good faith believed Horall had the authority to consent to their entry into the residence. (People v. Ledesma (2006) 39 Cal.4th 641, 704; People v. Escudero (1979) 23 Cal.3d 800, 806.) Third-party consent is valid where it is given by one "who possess[es] common authority over or other sufficient relationship to the premises or effects sought to be inspected." (United States v. Matlock (1974) 415 U.S. 164, 171; see also People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1194; People v. Bishop (1996) 44 Cal.App.4th 220, 237.) "The law also permits a search based upon consent by a person with apparent authority where the officers conducting the search reasonably believe that the person is empowered to give that consent. In [Illinois v.] Rodriguez [(1990)] 497 U.S. [177,] 186 [110 S.Ct. 2793], the Supreme Court held that where the police conduct a warrantless search based upon the consent of a third party whom they reasonably believe at the time to have the authority to give it, no Fourth Amendment violation occurs." (Walker, supra, 143 Cal.App.4th 1183, 1199.) Once Horall informed Officer Aiello that he lived in the house and voluntarily agreed to the entry into the house, the search of the premises did not require a warrant. (People v. Ledesma, supra, at p. 704.)
Defendant argues that the permission for the search given by Horall, as a "cotenant," was negated by his own objection "by his conduct" to the officer's "presence." Defendant relies on the opinion in Georgia v. Randolph (2006) 547 U.S. 103, 120 (Randolph), in which the United States Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Randolph does not affect our conclusion here, as defendant was neither present when the police received consent to enter the residence, nor did he thereafter expressly repudiate the consent given by Horall. (See People v. Ledesma, supra, 39 Cal.4th 641, 704, fn. 16.) Officer Aiello specifically testified that defendant seemed "upset" when he encountered the officer, but did not tell him to "leave the house."
We also reject defendant's contention that the search exceeded the scope of consent. Defendant complains that Officer Aiello only asked for and received consent to "search the garage - not the house." While defendant correctly points out that, according to Officer Aiello's testimony, Horall gave him permission to "go in and search the garage," the officer did not engage in a greater intrusion than he was permitted. " 'A consensual search may not legally exceed the scope of the consent supporting it. [Citation.]' [Citation.] 'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?' [Citation.]" (People v. Bell (1996) 43 Cal.App.4th 754, 770.) "[I]t is the government's burden to prove that a warrantless search was within the scope of the consent given." (People v. Harwood (1977) 74 Cal.App.3d 460, 466, emphasis omitted.) "Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination." (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) Officer Aiello's testimony was that he fortuitously encountered defendant as he was returning with Horall from the garage and proceeding back into the kitchen. The search was within the scope of the consent given by Horall.
III. The Arrest of Defendant.
Finally, we consider the arrest of defendant. Having found no illegality in the seizure of the gun, or the entry into the house and contact with defendant, the remaining issue is whether the arrest was supported by probable cause. We conclude that once Officer Aiello was lawfully inside the residence, he had ample probable cause to arrest defendant. In addition to the information known to Officer Aiello when he entered the house, he observed that defendant was at least similar in appearance to the suspect described by the victims, including the facial hair on his chin. The officer was also informed that defendant left the house wearing a dark hooded sweatshirt - again, a description that matched the suspect's clothing, and the "hooded black sweatshirt" found nearby at 703 Ring Neck Lane - and had recently returned. Defendant's mother, Carrie Rolling, told the officer that defendant "had a history of robbery," and that while she was waiting with another officer during the pursuit of the suspect defendant called her from the backyard to report that he was locked out of the house. The totality of information known to Officer Aiello provided a reasonable ground for his belief that defendant was guilty of the robbery and attempted robberies. The statements thereafter taken from defendant were not the product of any illegality.
Accordingly, the judgment is affirmed.
Margulies, Acting P. J. Banke, J.