IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
February 2, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL DALE WOODS THOMPSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. F4617)
The opinion of the court was delivered by: Butz , J.
P. v. Thompson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of vehicle theft (Veh. Code, § 10851, subd. (a))*fn1 and resisting a peace officer (Pen. Code, § 148, subd. (a)), defendant Michael Dale Woods Thompson was sentenced to an aggregate term of three years in state prison. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence obtained at the time of his arrest. Defendant argues law enforcement officers violated his Fourth Amendment rights when they arrested him within the curtilage of a home in which he had a reasonable expectation of privacy.
We conclude there was no objective expectation of privacy in the driveway in which defendant was arrested because the driveway was accessible to the general public and not intimately connected to the home. Accordingly, we shall affirm the judgment.
On May 27, 2009, law enforcement officers executed a search warrant on the home of John Palmer looking for stolen property, including stolen vehicles. The officers also had an arrest warrant for Palmer. After failing to find Palmer, Detective Allen Serpa left the Palmer residence; several miles away, he saw a white Chevrolet Camaro IROC (IROC stands for the "International Race of Champions" model) driving at a high rate of speed. Having received information that a 1986 white Camaro IROC-Z28 may have been stolen, Serpa called Detectives Rick DiBasilio and Wade Whitney, still near the Palmer residence, and told them what he had seen.*fn2
Shortly after they received the call from Detective Serpa, Detectives DiBasilio and Whitney, who were parked on the side of the road in an unmarked car, observed a white Camaro IROC with the "T-top" off speed past them in the opposite direction. As the car sped past them, the detectives saw the car cross the double yellow line in the center of the road; they also saw that defendant, a known associate of Palmer's, was driving the car. DiBasilio and Whitney turned their car around and gave chase.
Detectives DiBasilio and Whitney immediately lost sight of the Camaro. They stopped outside of the sheriff's substation and talked to a man who said he had seen the Camaro speed by, heading eastbound. The detectives followed the path of the Camaro until they reached another individual who said he had not seen a white Camaro IROC go by in the last 10 or 15 minutes. By that time, Detective Serpa had caught up to DiBasilio and Whitney.
Parked on the side of the road near the home of Jim Guadagnolo, also a known associate of Palmer's, the three detectives agreed to go to Guadagnolo's house to look for defendant and the white Camaro IROC. Detective Serpa stopped to get his tactical vest from the back seat of his unmarked vehicle while Detectives DiBasilio and Whitney proceeded to Guadagnolo's house.
From the public road, the detectives drove through an open gate to a long, tear-shaped, dirt driveway. They did not see any "No Trespassing" signs. The detectives proceeded along the dirt driveway until they saw three cars near the Guadagnolo residence: two white Camaros and a silver Pontiac "Firebird." DiBasilio noted that one of the Camaros had its "T-top" off, just like the Camaro defendant was seen driving on the roadway. The hood of the Camaro was up and defendant was under the hood when the detectives parked their car.
Detectives DiBasilio and Whitney, wearing street clothes with the guns holstered at their hips and their badges attached to the holster, got out of their vehicle. As they did, defendant stood up and DiBasilio recognized him. Defendant closed the hood of the car and began walking toward the driver's side door; DiBasilio said "Sheriff's Department. Stop." Defendant did not stop so DiBasilio, continuing to move toward the Camaro, again ordered defendant to stop.
Defendant ignored Detective DiBasilio's orders and got into the Camaro with his girlfriend. DiBasilio, who at that point was next to the Camaro, reached in the driver's side window, grabbed the steering wheel, and attempted to pull the keys out of the ignition. Defendant threw the car into reverse and stepped on the gas, "whipping" DiBasilio off of his feet, knocking him to the ground, and dragging him.
Detective Serpa, who was now parked in the driveway behind Detectives DiBasilio and Whitney, deployed his Taser in defendant's direction. Immediately thereafter, Whitney fired shots into the front of the Camaro, as it was dragging DiBasilio backward.
Defendant was subsequently charged with assault with a deadly weapon causing great bodily injury (Pen. Code, § 245, subd. (c)), assault with a deadly weapon (id., § 245, subd. (a)(1)), resisting a peace officer by force (id., § 69), vehicle theft (Veh. Code, § 10851, subd. (a)), and receiving stolen property (Pen. Code, § 496, subd. (a)). It was further alleged that defendant previously served three prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Defendant pleaded not guilty. Prior to trial, defendant filed a Penal Code section 1538.5 motion to suppress the evidence found in the driveway at the Guadagnolo residence on the day of defendant's arrest. In support of his motion, defendant argued that law enforcement officers violated his Fourth Amendment rights with the warrantless stop and search they conducted in the Guadagnolo driveway.
In ruling on defendant's motion, the court assumed "[f]or the sake of argument," that defendant established he had a "subjective expectation of privacy in the property . . . ." The court nevertheless found there was no "objectively reasonable expectation of privacy outside the house on the driveway [because] what the officer[s] did is they went down the driveway that may not have been used by the mailman because there was a mailbox outside, but it was the same driveway the UPS driver would use to access the residence or anyone else going to the residence . . . ." Accordingly, the court denied defendant's motion.
A jury then found defendant guilty of vehicle theft and not guilty of receiving stolen property. The jury hung on the charges of resisting a peace officer by force, assault with a deadly weapon causing great bodily injury, and assault with a deadly weapon. An amended information was later filed to include a charge of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)). Defendant then entered a no contest plea to the added charge and admitted the enhancement allegations in exchange for a dismissal of the remaining charges.
Defendant was sentenced to an aggregate term of three years in state prison. He was ordered to pay various fines and fees and direct restitution to the man whose car he stole. Defendant was awarded 692 days of custody credit (346 actual and 346 conduct).
On appeal, defendant contends the trial court erred in denying his motion to suppress. Specifically, defendant claims the detectives violated his Fourth Amendment rights by detaining and searching defendant in the driveway of Guadagnolo's home without a warrant. We disagree.
I. The Fourth Amendment
"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 . . . .' (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.] A similar guarantee against unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] 'Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court.'" (People v. Camacho (2000) 23 Cal.4th 824, 829-830 (Camacho).)
"In reviewing the trial court's ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness." (People v. Hughes (2002) 27 Cal.4th 287, 327.)
"The 'ultimate standard set forth in the Fourth Amendment is reasonableness' [citation], and, after Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576] . . . , we ask two threshold questions. First, did the defendant exhibit a subjective expectation of privacy? Second, is such an expectation objectively reasonable, that is, is the expectation [one that] society is willing to recognize as reasonable?" (Camacho, supra, 23 Cal.4th at pp. 830-831.)
II. There Was No Objectively Reasonable Expectation of Privacy in the Driveway
Defendant contends the Guadagnolo driveway was within the home's curtilage, and thus he was protected by the Fourth Amendment while he was standing in the driveway, near the Guadagnolo residence. Curtilage is the area "so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (United States v. Dunn (1987) 480 U.S. 294, 301 [94 L.Ed.2d 326, 335] (Dunn).) In identifying the extent of the curtilage, four factors are considered: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." (Id. at p. 301 [94 L.Ed.2d at pp. 334-335].)
Here, the entire encounter between defendant and the detectives occurred in the Guadagnolo driveway. The driveway, which Guadagnolo described as approximately 150 feet long, was long enough to accommodate six cars in a straight line, and so long that you could not see the Guadagnolo residence from the public roadway. Given the length of the driveway, and the fact that the officers never got closer to the Guadagnolo residence than the white Camaro IROC being driven by defendant, we agree that the officers' presence "was not so proximal to the residence as to invade the curtilage of the [Guadagnolo] property." (People v. Lieng (2010) 190 Cal.App.4th 1213, 1224 (Lieng).)
We next consider whether the area in which defendant was stopped and searched is included within any enclosure surrounding the home. (Dunn, supra, 480 U.S. at p. 301 [94 L.Ed.2d at p. 355].) Gates and fences, even trees and shrubberies, may indicate the boundaries of curtilage. (Id. at p. 301, fn. 4 [94 L.Ed.2d at p. 335, fn. 4]; United States v. Johnson (2001) 256 F.3d 895, 902.) Here, the property was enclosed by barbed wire, and trees lined the driveway, but neither of these restricted the public's access to the driveway. Indeed, the officers entered the dirt driveway from a public roadway, through an open gate. Thus, this factor also weighs in favor of finding the search and seizure were constitutional.
Next, we consider how the area searched was used. Here, the entire encounter occurred in the Guadagnolo driveway. Driveways are used for entering and exiting property, their use is not "intimately tied to the home." Accordingly, driveways are generally not granted Fourth Amendment protection. (Lieng, supra, 190 Cal.App.4th at p. 1225.)
Finally, we consider what steps Guadagnolo took to protect his driveway from observation by people passing by. (Dunn, supra, 480 U.S. at p. 301 [94 L.Ed.2d at p. 335].) Here, there was conflicting evidence about whether the property was marked with "No Trespassing" signs. Detective Serpa, the first to enter the driveway, did not remember seeing such signs on May 27, 2009. Defendant introduced photographs, showing "No Trespassing" signs on the property, but could not establish those signs were posted on May 27, 2009. Guadagnolo, however, testified the "No Trespassing" signs were posted on the property on May 27, 2009.
Where evidence conflicts or raises contradictory inferences, we make all presumptions in favor of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) Accordingly, we presume the signs either were not posted on May 27, 2009, or at least were not visible to people entering the property. Either scenario indicates Guadagnolo made little effort to protect his driveway from observation through the use of "No Trespassing" signs.
Additionally, the trial court found that Guadagnolo's driveway was accessible to the general public, thus limiting the expectation of privacy "based on the public's ability to access and make observations from the driveway." (Lieng, supra, 190 Cal.App.4th at p. 1226.) As noted by the trial court, the driveway was accessible by mail carriers or persons delivering packages for UPS. Whether mail carriers and persons delivering packages for UPS or any other delivery service actually used the driveway we do not know; the salient point is that they could.
In sum, the Guadagnolo driveway was not part of the curtilage, and so was not protected by the Fourth Amendment. (See United States v. McIver (9th Cir. 1999) 186 F.3d 1119, 1123 [driveway in front of the garage of a residence is outside the home's curtilage], cited in People v. Zichwic (2001) 94 Cal.App.4th 944, 955-956.) Accordingly, we find no error.
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.