IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
December 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EMIL FERNANDEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR10-0081)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Fernandez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his motion to suppress evidence was denied, defendant Emil Fernandez pleaded no contest to possession of heroin. (Health & Saf. Code, § 11350, subd. (a).)*fn1 Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including completion of a substance abuse treatment program.
On appeal, defendant contends his suppression motion was erroneously denied because the searching officers conducted an unconstitutional protective sweep that led directly to the seizure of the heroin. We shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
The Adult Protective Services (APS) unit of the Yolo County Department of Employment and Social Services received allegations that defendant, the caregiver for his mother, Connie Fernandez, was using money he had received on her behalf to purchase drugs for himself. On December 23, 2009, APS social worker Maggi Jeffrey performed a welfare check on Fernandez. At Jeffrey's request, Woodland Police Officers Fair and Waldeck accompanied her.
After Jeffrey determined that Fernandez was able to care for herself, she told Officer Fair that, in order to close the case, she needed to speak to defendant who resided in the other unit of Fernandez's duplex.
Officer Fair knocked on defendant's door and a male voice said, "come in." Fernandez opened the door and walked into defendant's apartment. Jeffrey and the two police officers followed.
The apartment was small. The kitchen and living room were, in fact, one large room, akin to a "studio" apartment. A hallway from the kitchen area led to a bedroom.*fn2 When the officers entered, defendant was seated in a wheelchair in the living room, which was the area closest to the front door.
Officer Fair testified that, upon entering the apartment, she "did a protective quick sweep to look for anyone else in the apartment." While Fair conducted her sweep, Officer Waldeck walked to the "kitchen" portion of the "open room" in order to observe both Fair and the other persons who were still in the "living" portion of the room.
While standing next to the kitchen table, Officer Waldeck looked down and saw, in plain view on the table, "a plastic bag with a dark substance inside the bag."
Defendant testified that his mother frequently enters his home without knocking. At the time of the entry, he never heard anyone knock and he never yelled "come inside." Defendant, a double amputee confined to a wheelchair, admitted that he used heroin to control his pain.
The trial court found that the kitchen table was about 10 feet away from defendant and about 20-plus feet from the front door. After examining several photographs, the court stated it saw "a room in which it's a mixed use. I don't see a delineation. I see a concept . . . where it all flows." The court denied the suppression motion.
Defendant contends his suppression motion should have been granted because the searching officers conducted an unconstitutional protective sweep that led directly to the seizure of the heroin. We are not persuaded.
"The Fourth Amendment provides '[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .' [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.]" (People v. Camacho (2000) 23 Cal.4th 824, 829-830.) Evidence obtained as a result of an unreasonable search and seizure is excluded at trial only if exclusion is required by the federal Constitution. (Id. at p. 830.)
"In reviewing the trial court's ruling on the suppression motion, [appellate courts] uphold any factual finding, express or implied, that is supported by substantial evidence, but [the courts] independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 327.)
In this case, the officers did not have a search warrant. The prosecution had the burden to prove that no search occurred or that an exception to the warrant requirement applied. (People v. Camacho, supra, 23 Cal.4th at p. 830.)
Defendant primarily contends, and the Attorney General concedes, the facts of this case do not justify a protective sweep of defendant's apartment. We accept the Attorney General's concession.
"A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." (Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276, 281].) A protective sweep is justified by an officer's "reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Id. at p. 337 [108 L.Ed.2d at p. 288].) A "'mere abstract theoretical "possibility" that someone dangerous might be inside a residence does not constitute "articulable facts"' justifying a protective sweep." (People v. Ledesma (2003) 106 Cal.App.4th 857, 866.)
Upon entering, the officers encountered defendant, who was confined to a wheelchair, and no evidence suggested that either officer believed that there was anyone in the apartment who posed a danger to the officers. Thus, a protective sweep was not warranted.
However, we need not address the "sweep" because any infirmity in Officer Fair's protective sweep does not compel the conclusion that Officer Waldeck had no right to be where she was, in the kitchen portion of defendant's apartment, when she observed the heroin in plain view on the kitchen table.
In denying the suppression motion, the trial court impliedly credited Officer Fair's testimony that she heard a male voice say "come in," and impliedly rejected defendant's contrary testimony that he never heard anyone knock and never yelled "come inside." This implied finding is binding upon us because it is supported by substantial evidence. (People v. Hughes, supra, 27 Cal.4th at p. 327.) It follows from this finding that Officer Waldeck had obtained consent to enter, and to be inside, defendant's apartment.
Seizing on Officer Waldeck's subjective intent in moving from the "living" portion of the open concept room to the "kitchen" portion, i.e., her stated intent to observe Officer Fair as the latter made the protective sweep, defendant argues that Waldeck's movement, too, was unlawful and that, had Fair lawfully remained in the "living" area, then "so too [would have] Waldeck," who thus would not have been in position to see "the small amount of heroin located on the kitchen table behind the couch."
However, the relevant issue is not why Officer Waldeck walked to where she did, but whether she had a right to do so. "[C]onstitutional reasonableness" does not depend on "the actual motivations of the individual officers involved." (Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 98].) Thus, "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (Ibid.)
Whether Officer Waldeck had a right to walk to the kitchen area depends, not upon her intent, but upon the scope of the consent she had received. The words, "come inside," did not express or imply any limitation on the scope of the consent. Nor did their context appear to do so: the words were uttered before the speaker knew to whom he was responding, and before either officer knew the configuration of the space to which the words referred.
At trial, defense counsel argued that consent was limited because the officers were "coming inside to speak with" defendant, who was in the "living" portion of the room. This argument incorrectly relies upon both the officers' unexpressed subjective intent, i.e., to speak with defendant, and defendant's subjective intent to invite the officers no further than necessary to accomplish their unstated--and thus unknown to him--objective. (Whren v. United States, supra, 517 U.S. at p. 813 [135 L.Ed.2d at p. 98].)
The trial court impliedly concluded that the scope of defendant's consent was limited to the single room just inside of the front door.*fn3 Our review of this legal conclusion is de novo (People v. Hughes, supra, 27 Cal.4th at p. 327), and we find no substantial evidence to support a different conclusion.
The trial court made the factual determination that the single room into which the officers were invited included the "kitchen" area as well as the "living" area. We review this determination for substantial evidence. (People v. Hughes, supra, 27 Cal.4th at p. 327.) Based on the photographs and testimony at the suppression hearing, we conclude the determination finds adequate support in the record.
It follows that Officer Waldeck had consent to be in the kitchen area at the time she observed the heroin on the kitchen table.
"[I]f, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately." (Texas v. Brown (1983) 460 U.S. 730, 739 [75 L.Ed.2d 502, 512].)
"It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be 'immediately apparent.' [Citations.] . . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." (Horton v. California (1990) 496 U.S. 128, 136-137 [110 L.Ed.2d 112, 123], fn. omitted.)
In this case, Officer Waldeck observed the heroin in plain view from an area where she had a right to be. Once defendant consented to the officers' entry into the single open concept room, they had the right to be in that room. The heroin was found unconcealed on a kitchen table about 10 feet away from defendant. As noted, Waldeck's subjective motivation for walking to that area is not relevant to our analysis. (Whren v. United States, supra, 517 U.S. at p. 813 [135 L.Ed.2d at p. 98].) There is no doubt that the heroin's incriminating character was immediately apparent. Nor is there any doubt that Waldeck could lawfully seize the heroin from the kitchen table. (Horton v. California, supra, 496 U.S. at pp. 136-137 [110 L.Ed.2d at p. 123].) Defendant's suppression motion was properly denied.
The judgment is affirmed.
We concur: NICHOLSON , J. DUARTE , J.