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The People v. George Wesley Mcdonald

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


February 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GEORGE WESLEY MCDONALD, JR., DEFENDANT AND APPELLANT.

Super. Ct. No. 09F01546 Defendant George Wesley McDonald, Jr., pled no contest to possession of marijuana for sale. The trial court placed defendant on formal probation for five years and imposed a condition of 90 days in jail. On appeal defendant argues the trial court improperly denied his motion to suppress evidence seized during the warrantless search of his home. We disagree and affirm the judgment.

P. v. McDonald CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Sacramento

----

BACKGROUND

On February 25, 2009, Detective Joseph Miller was assigned to a narcotics suppression unit with the Sacramento County Sheriff. Detective Miller was acting as an undercover officer for a buy-bust operation. About 1:00 p.m., Detective Miller saw defendant leave unit one of the fourplex located at 5750 Garfield Avenue. Detective Miller approached defendant and asked if he had any "bud," meaning marijuana. Defendant responded by asking Detective Miller how much he needed. After Detective Miller said a "dub" (meaning about $20 worth), defendant told him to wait there. Defendant walked back toward the front of the units in the general area where Detective Miller saw him leave the fourplex. Detective Miller did not see where defendant went and thus did not know if he reentered unit one. Defendant returned after about one minute and asked Detective Miller to step into the fourplex's common garage. There, Detective Miller traded a prerecorded $20 bill for two baggies containing a combined weight of 0.90 grams of marijuana. Detective Miller then left the area, alerted his fellow officers that he had completed a narcotics transaction, and provided them with defendant's description and location. Defendant walked back toward unit one of the fourplex.

Detective Chris Maher was assigned to the arrest team for the narcotics suppression unit that day. After receiving Detective Miller's information, Detective Maher pulled over in front of 5750 Garfield Avenue and saw defendant in front of the fourplex. Defendant made eye contact with Detective Maher, then immediately entered unit one.

The arrest team drove two unmarked black crew cab trucks. The vehicles had been used in such buy-bust operations once a week for two years and had gained a reputation as police vehicles on the street. Detective Maher and his partner were both wearing plain clothes and black raid vests with "SHERIFF" printed in yellow lettering on the front and back. The angle of approach could have permitted defendant to see the lettering through the windshield or passenger window. Detective Maher interpreted defendant's quick entry to his unit as a sign defendant realized they were police.

Defendant was inside the residence for 10 to 15 seconds, then reemerged. With defendant outside again, Detective Maher and his partner got out of the vehicle, identified themselves as police, and placed defendant in handcuffs.*fn1 At this point, two uniformed officers arrived at the scene, defendant identified himself, and the detectives searched him. The detectives did not find the prerecorded $20 bill or any contraband; the detectives found only defendant's keys. Detective Maher asked defendant where he lived, and he responded unit one of 5750 Garfield Avenue. Detective Maher then asked if anyone else was in the apartment; defendant hesitated, then said his teenage son was inside.

Detective Maher was concerned evidence was being destroyed within the residence, so the detectives used defendant's key to enter and announced their presence. Detectives did not try to enter the residence until they were told someone else was inside. The detectives swept through the residence and found a locked bathroom door. The detectives ordered the person to unlock the door. Defendant's son complied and was found flushing a large quantity of marijuana down the toilet.

Detective Maher asked defendant about the location of the prerecorded $20 bill, and defendant told them it was on his nightstand under a towel. The detectives recovered the bill there. Detectives also found packaging and scales in plain view in the residence.

Defendant testified at the suppression hearing. He admitted selling marijuana to Detective Miller and looking in the direction of the trucks when they arrived, but denied recognizing them as police vehicles. Defendant denied telling his son to destroy evidence. He testified the officers tried to get inside the residence before he told them anyone was there, and he told them his son was inside because he was afraid they were about to go in and shoot him.

Though the trial court considered the issue to be "right on the cusp," it denied defendant's motion to suppress because it found the need to prevent evidence destruction created exigent circumstances permitting warrantless entry.

DISCUSSION

On appeal, defendant raises a host of arguments why the trial court's denial of his motion to suppress was improper: (1) there was insufficient evidence contraband was in the home; (2) there was insufficient evidence the prerecorded buy funds were in the home; (3) the detectives' belief that evidence destruction was imminent was not supported by probable cause; (4) there was insufficient evidence the detectives actually relied on the presence of defendant's son in the home to justify their entry; (5) the presence of defendant's son in the residence did not justify exigency; and (6) the evidence was insufficient to establish defendant had alerted a coconspirator.*fn2

As we will show, the trial court properly determined the entry was justified by exigent circumstances arising from imminent evidence destruction and defendant's arguments to the contrary are without merit. Accordingly, we affirm the trial court's denial of defendant's motion to suppress.

I

Standard Of Review

"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) "'"[S]ubstantial evidence"'" means "'"evidence that is reasonable, credible and of solid value."'" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426.)

Although a warrantless entry of a residence is presumptively unreasonable, the federal Constitution allows warrantless entry under certain types of exigent circumstances. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290, 300-301]; People v. Celis (2004) 33 Cal.4th 667, 676.) The imminent destruction of evidence qualifies as an exigent circumstance. (People v. Thompson (2006) 38 Cal.4th 811, 820.) However, for officers to enter a home based on exigent circumstances, they need "probable cause to believe that the entry is justified . . . ." (Celis, at p. 676.) "There is no ready litmus test for determining whether [exigent] circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (People v. Ramey (1976) 16 Cal.3d 263, 276.)

II

Probable Cause That Evidence Was In The Home

In finding exigent circumstances permitted warrantless entry, the trial court implicitly determined the detectives had probable cause to believe evidence was in the residence. Thus, the court must have made "a 'practical, common-sense decision' [that] under the 'totality of the circumstances' known to the police officers at the time they entered [defendant]'s home, there was a 'fair probability' that contraband or evidence of a crime would be found inside." (U.S. v. Lindsey (9th Cir. 1989) 877 F.2d 777, 780; quoting Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) Here, Detective Maher testified he believed two specific kinds of evidence were in the home: the prerecorded buy funds and a stash of drugs.

On appeal, defendant contends there was insufficient evidence to support the trial court's determination that the detective's beliefs were supported by probable cause.

A

Drug Stash

Defendant argues there was insufficient evidence to support the belief there were drugs inside the house. This argument disregards the considerable amount of circumstantial evidence that suggests otherwise. Defendant's argument misconstrues the substantial evidence standard by displacing reasonable inferences with absolute certainty and is thus without merit.

Defendant relies heavily on People v. Gentry (1992) 7 Cal.App.4th 1255. There, the First District determined a warrantless entry was not justified by exigent circumstances based on potential evidence destruction. (Id. at pp. 1260-1264.) However, Gentry is not instructive here because the Gentry court explicitly stated it did not address the issue of whether the police had probable cause to believe drugs would be found in the apartment. (Id. at p. 1261.)

Furthermore, we conclude the trial court's determination that Detective Maher's belief was supported by probable cause was correct. Prior to the warrantless entry, Detective Miller informed Detective Maher that defendant was dealing drugs in the vicinity of the fourplex located at 5750 Garfield Avenue. Seconds after Detective Miller gave the bust signal, Detective Maher found defendant at the location provided. After making eye contact with Detective Maher, defendant darted into unit one of the fourplex for 10 to 15 seconds. After he came back out and Detective Maher detained him, defendant admitted he lived in the residence. Because defendant was selling drugs in the immediate vicinity of his home, he returned to the residence immediately after the sale, and was found without any drugs on his person when detained, we conclude the officers had probable cause to believe that defendant possessed additional drugs in the residence.*fn3

B

Prerecorded Buy Funds

In an argument similar to his first, defendant claims the police did not have substantial evidence to establish the prerecorded funds were in the home because Detective Maher did not conduct complete, uninterrupted surveillance of defendant from the point he received the prerecorded bill to the time he entered the home. Defendant again focuses on Detective Maher's lack of direct knowledge and disregards reasonable inferences drawn from circumstantial evidence.

We conclude Detective Maher's belief was supported by probable cause. Detective Maher knew Detective Miller had purchased drugs from defendant with prerecorded funds. Immediately after receiving the bust signal, Detective Maher stopped his truck in front of defendant's residence. Defendant made eye contact with Detective Maher then darted inside for 10 to 15 seconds. When defendant reemerged he did not have the prerecorded funds on him. All of these events took place in an approximate 30-second span. Under these circumstances, we conclude there was a "'fair probability'" that the prerecorded bill would be found in the residence. (U.S. v. Lindsey, supra, 877 F.2d at p. 780.)

III

Exigent Circumstances Justified By Evidence Destruction

Defendant also argues that the circumstances of the case did not constitute exigent circumstances justifying the warrantless search of his home. Our Supreme Court discussed the conditions that are relevant when exigency premised on evidence destruction is alleged, and noted "'[t]he emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant [citations]; (2) reasonable belief that the contraband is about to be removed [citations]; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought [citation]; (4) information indicating the possessors of the contraband are aware that the police are on their trail [citation]; and (5) the ready destructibility of the contraband and the knowledge "that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic [citations].'" (People v. Bennett (1998) 17 Cal.4th 373, 385.) "The absence or presence of a particular factor is not conclusive. Rather, the determination of exigent circumstances turns upon whether, in light of all of the facts of the particular case, there was an urgent need justifying a warrantless entry." (People v. Ortiz (1995) 32 Cal.App.4th 286, 292-293.)

As we will demonstrate, the information known to Detective Maher prior to entering defendant's residence indicated an urgent need to prevent the destruction of evidence. Thus, the warrantless entry was justified by exigent circumstances. Defendant's arguments to the contrary are without merit.

A

Detectives' Inability To Comply With Warrant Procedures

With respect to the degree of urgency, defendant argues there was none because at the time of the search he was already in custody and the detectives "had no information that a co-conspirator was involved such that they could reasonably conclude any evidence might imminently be destroyed." This argument misconstrues the record on appeal. The evidence shows that immediately after he received the bust signal, Detective Maher stopped his truck in front of defendant's residence. Defendant made eye contact with Detective Maher, then darted inside for 10 to 15 seconds. When defendant reemerged, he did not have the prerecorded funds on him. Further, defendant told the detectives he lived in the residence. When asked if anyone else was inside, defendant first hesitated, then eventually admitted his son was within. The trial court interpreted defendant's hesitation as "stalling for time." Taken as a whole, this evidence supports a reasonable inference that defendant had spotted the police, realized his arrest was imminent, and told a confederate inside to destroy the evidence.

Based on the foregoing, we conclude the first Bennett circumstance favors a finding of exigency because the officers had a reasonable basis for believing the situation was urgent, and it was highly unlikely the detectives could have complied with the warrant procedures in time to preserve the evidence. As discussed in part II, ante, Detective Maher had probable cause to believe the prerecorded buy funds and a stash of drugs were inside the residence. Both of these kinds of evidence can be moved or destroyed in mere minutes, if not seconds.

B

Reasonable Belief That Evidence

Destruction or Removal Is Imminent

Defendant argues further that the detectives had no reasonable belief that evidence was about to be moved or destroyed. Again, defendant relies on Gentry. In Gentry, the police arrested the person selling drugs in the driveway of his apartment complex. (People v. Gentry, supra, 7 Cal.App.4th at p. 1259.) The officers then entered his apartment without a warrant. (Ibid.) The court applied the Bennett analysis and determined the circumstances did not support a finding of exigency justified by prevention of evidence destruction. (Gentry, at pp. 1262-1264.)

The circumstances here are distinguishable from those in Gentry. As discussed in part IIIA, ante, defendant's behavior reasonably suggested he had taken steps to destroy evidence: defendant had spotted the police, then briefly entered the residence before returning without the buy funds. There were no analogous circumstances in Gentry. Furthermore, as discussed in part IIB, ante, the detectives here had probable cause to believe additional physical evidence (the prerecorded $20 bill) was in the residence. In contrast, Gentry was concerned only with drugs. Thus, we conclude Gentry is not controlling, and the second Bennett circumstance weighs in favor of exigency.

Defendant also argues the presence of his son in the residence did not justify exigency because his son's age was unknown to the officers prior to entry. Defendant suggests his son could have been an infant incapable of destroying evidence. Detective Maher addressed this issue several times in his testimony. Ultimately, Detective Maher testified he did not remember what defendant told him about his son's age, but he had written in his report that defendant said his son was a teenager. We conclude this testimony constitutes substantial evidence upon which the trial court could rely when evaluating Detective Maher's knowledge prior to the search. Thus, defendant's argument is inconsistent with the record on appeal and is without merit.

C

Threat To Detectives' Safety

Regarding the third Bennett circumstance, defendant claims safety concerns for the detectives did not support a finding of exigency. He is correct. Though Detective Maher stated part of his subjective justification for the search was the safety of the officers, the trial court rejected the argument as unreasonable. The People do not dispute this point.

D

Defendant's Awareness Of The Presence

Of Law Enforcement Officers

Defendant argues the fourth Bennett circumstance was not present because there was no evidence he was aware of his impending arrest. Once again, defendant misrepresents the record on appeal. As discussed above, Detective Maher was aware of ample evidence that reasonably suggested defendant had spotted them and taken efforts to conceal or destroy evidence within the home. Accordingly, the fourth Bennett circumstance supports a finding of exigency for the reasons discussed previously.

E

Ease Of Destructibility Of The Evidence

Finally, defendant argues "there was no evidence indicating the ready destructibility of the evidence in the home because the officers did not know the home actually contained contraband." This argument fails for the reasons discussed in part II, ante. We conclude it is beyond serious dispute that the police were aware of the mobility and destructibility of the prerecorded buy funds and drug stash. (See United States v. Manning (2d Cir. 1971) 448 F.2d 992, 998-999.) Thus, the fifth Bennett circumstance militates in favor of exigency.

Based on all of the foregoing together, we conclude the officers had probable cause to believe exigent circumstances justified immediate entry into defendant's residence to prevent the imminent destruction of contraband and/or evidence of defendant's drug activity.

IV

The Validity Of The Search Is Not Determined

By The Detectives' Subjective Motivations

Lastly, defendant argues there was insufficient evidence Detective Maher actually relied upon the presence of defendant's son as the basis for his entry. Defendant suggests that because Detective Maher testified he had decided to enter the residence "no matter what" when he stopped defendant, he could not have relied upon information not yet known to him to justify entry. This argument is fundamentally flawed. "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' [citation] and not on the officer's actual state of mind at the time the challenged action was taken." (Maryland v. Macon (1985) 472 U.S. 463, 470-471 [86 L.Ed.2d 370, 378], citing Scott v. United States (1978) 436 U.S. 128, 136 [56 L.Ed.2d 168, 177].)

Thus, it is irrelevant whether Detective Maher subjectively relied on the presence of defendant's son within the home to justify his concern for evidence destruction. We need only determine, as we do, that a reasonable officer could have done so under the circumstances of this case.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:NICHOLSON , Acting P. J.

MAURO , J.


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