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The People v. Deemario Bomone Magee

April 12, 2011

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
DEEMARIO BOMONE MAGEE, DEFENDANT AND RESPONDENT.



Superior Court of Solano County, No. VCR199809, Dwight C. Ely, Judge,Retired.

The opinion of the court was delivered by: Simons, J.

CERTIFIED FOR PUBLICATION

Solano County Super. Ct. No. VCR199809

When defendant Deemario Bomone Magee noticed that police officers were approaching him, he avoided them by entering the home of a friend. Though the officers lacked a warrant, they followed defendant into the house and found him inside the bathroom trying to dispose of individually wrapped pieces of cocaine base. The trial court suppressed the evidence discovered inside the house, but we reverse; defendant had no reasonable expectation of privacy in the home or the bathroom at the time of the officers' warrantless entry.

FACTUAL BACKGROUND*fn1

On September 13, 2008, at 7:48 p.m., Corporal Potts and three other officers of the Vallejo Police Department were patrolling near Mark Avenue and Sawyer Street, a high-crime area known for narcotics trafficking. The officers were in an unmarked van and wore black police shirts and vests. Potts saw defendant walk from in front of a house on Mark Avenue (the Mark Avenue house) toward a car that appeared to slow as it drove down the street. Potts recognized defendant; the "word on the street" was that defendant was involved in selling illegal narcotics, and Potts knew that defendant had been arrested in 2004 for selling drugs to an undercover officer. When Potts had attempted to contact defendant months before, defendant ran into a house to avoid the contact.

The police officers exited the van. Defendant looked toward the officers and then turned and "jogged hurriedly" toward the Mark Avenue house. Potts called out, "Please stop. Come here, Deemario. Please stop." Defendant continued to move toward the house and, as Potts pursued him, defendant entered it. Potts knew from previous contacts with defendant that defendant did not live there; defendant had told Potts that his "grandmother" lived there.

Potts followed defendant into the house through an unlocked screen door and heard defendant close the bathroom door. The bathroom door was locked, and Potts kicked it open. Defendant was leaning over the toilet, flushing it. Inside the toilet was a bag containing "at least" 20 individually-wrapped pieces of a white chalky substance that Potts believed to be cocaine base.

Potts reached over defendant in an unsuccessful attempt to retrieve the bag before it was flushed away. Defendant pushed Potts, and Potts punched defendant. After a struggle involving additional officers, defendant was handcuffed. The officers found on defendant a handgun with one bullet in the chamber and over $800 in cash; they found a gun magazine in the bathtub. The officers also searched and seized evidence from defendant's car, which was parked outside. Potts opined that defendant possessed the suspected cocaine base for the purpose of sale.

Grace Anderson, who lived with her mother and sister at the Mark Avenue house in September 2008, testified for the defense. She is close to defendant's parents and has known defendant for over 20 years. Defendant stopped by the Mark Avenue house when he was in the area, two or three times a week. He socialized with Anderson's mother, who loved defendant as a "grandson." He had permission to enter without knocking and to use the restroom. Defendant had never stayed overnight. On September 13, 2008, defendant had made arrangements with Anderson's niece to have his hair braided at the house.

PROCEDURAL BACKGROUND

In a felony complaint, defendant was charged with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) (count 1), with an enhancement for being armed with a firearm (Pen. Code, § 12022, subd. (c));*fn2 possession of cocaine base while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 2); possession of a concealed firearm (§ 12025, subd. (a)(2)) (count 3); and misdemeanor battery on a police officer (§ 243, subd. (b)) (count 4).

Prior to the preliminary hearing, defendant filed a section 1538.5 motion to suppress the evidence discovered inside the Mark Avenue house, as well as the evidence seized from his car. At the end of the preliminary hearing, the magistrate granted the motion to suppress the evidence seized from the car,*fn3 denied the motion in all other respects, and held defendant to answer on the complaint. Thereafter, the People filed an information setting forth counts 1, 2 and 3 as stated in the complaint; count 4 was changed to charge defendant with resisting an executive officer (§ 69).

Subsequently, defendant filed a motion to set aside the information pursuant to section 995, on the ground that the magistrate erred in denying the suppression motion with respect to the evidence discovered in the Mark Avenue house. The trial court concluded the warrantless entry violated the Fourth Amendment to the United States Constitution and granted ...


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