Opinion
C077096
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BODIFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62119180A)
Defendant Anthony Bodiford was convicted after a jury trial of two counts of possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359; counts one & three.) Count one related to marijuana found in the apartment in which defendant resided with his son and his son's girlfriend. Count three was related to marijuana found in a search of defendant's car two days later, after defendant voluntarily traveled in it to the police department in an attempt to secure return of the marijuana taken from the apartment. The trial court sentenced defendant to 60 days in county jail and five years of formal probation.
Undesignated statutory references are to the Health and Safety Code in effect at the time of the charged offense.
Defendant contends the trial court erred: (1) in denying his motion to suppress the marijuana found in the apartment and his statements made to police at the time of the seizure; (2) in denying his motion to suppress the marijuana found in his car at the police station as well as the statements defendant made to police thereafter; and (3) in failing to instruct the jury sua sponte on simple possession of marijuana as a lesser included offense.
We conclude the trial court erred in denying the motion to suppress evidence found in the hallway bedroom in the apartment, as well as the statements defendant made while at the apartment. We further conclude that the error was not harmless as to count one. However, as to the marijuana related to count three and the statements defendant made at the police department, we conclude that any taint from the search of the hallway bedroom closet as well as any taint from the statements defendant made at the apartment is attenuated and the suppression of the evidence related to count three was properly denied. We also conclude that the error related to the admission at trial of the marijuana seized from the hallway bedroom closet and statements defendant made to the police concerning that marijuana was harmless beyond a reasonable doubt as to count three.
Accordingly, we reverse defendant's conviction on count one, but affirm his conviction on count three.
FACTUAL AND PROCEDURAL BACKGROUND
The Trial Evidence
The Search and Statements at the Apartment
City of Roseville Police Officer Marc Kelley testified that on January 13, 2013, he went to defendant's apartment in Roseville to do a civil standby. Kelley met Riley Bongiovanni at the manager's office and accompanied her to the apartment so that she could pick up some of her belongings. At that time, defendant was living in the apartment with his son, codefendant Derek Bodiford, his son's girlfriend, Bongiovanni, and his two-year-old granddaughter. The apartment was in Bongiovanni's name.
Derek Bodiford is not a party to this appeal.
As we shall discuss post, Derek was on probation and subject to a search condition.
The apartment had two bedrooms, a master bedroom, and a hallway bedroom. Bongiovanni and her daughter were staying in the master bedroom. Derek was sleeping on the couch because he and Bongiovanni were not getting along at the time. Bongiovanni testified that defendant was staying in the hallway bedroom, which he was renting from her.
At some point, Kelley went into the hallway bedroom and noticed a jar containing marijuana in the bedroom closet. He described the jar as a "Mason jar." However, he did not describe the capacity or volume of the jar or the amount of marijuana in the jar. Kelley also found paperwork bearing the name of Derek Bodiford in the same closet. He called a detective to assist him in further investigation. On cross-examination, Kelley testified he determined that defendant stayed in the bedroom, but he did not say when he made that determination relative to the search of the hallway bedroom.
Detective Chad Baumann testified that he was called to defendant's apartment to assist in the marijuana investigation. He was briefed by Kelley on what had taken place before his arrival and then he commenced a search of the apartment. During his search of the apartment, Baumann observed marijuana in three locations: the closet in the hallway bedroom, the hallway bathroom, and the living room coat closet.
In the hallway bedroom closet, there was an ice chest full of plastic bags containing marijuana, a plastic tub full of plastic bags containing marijuana, a jar containing marijuana, and a five-gallon bucket containing marijuana shake. Baumann described the jar as being plastic and about eight inches high. He did not characterize what type of jar it was; nor did he describe the capacity or volume of the jar or describe how much marijuana was contained therein. Also found in the hallway bedroom were papers with both defendant's name and Derek's name.
In the hallway bathroom, there were eight glass jars containing marijuana. Baumann described these jars as "Mason jars," "a standard jam jar, maybe five . . . inches or so." In the living room coat closet, there was a standard size paper grocery bag containing marijuana. When asked how the marijuana in the paper bag was packaged, Baumann said, "I don't specifically recall that paper bag, how it was packaged." The record contains no evidence of the amount of marijuana contained therein. There was no marijuana or drug-related evidence found in the master bedroom.
Baumann interviewed defendant in the living room. Defendant told Baumann that he resided in the hallway bedroom and items he described to Baumann as being in that room matched what was in the room. Defendant said he had moved in within the last three weeks and had been previously living in Redding. Defendant also said that Derek had possessions in the room. Baumann asked defendant where the marijuana in the apartment came from, and defendant said his brother and father had a grow in Redding for their marijuana recommendations. Initially, defendant stated that all of the marijuana in the apartment belonged to him. Baumann confirmed that defendant was talking about the marijuana found in the bedroom, bathroom, and living room coat closet. Later, defendant stated that some of the marijuana belonged to his brother and his father and that he was just storing it for them. The record does not reflect whether defendant told Baumann what portion of the marijuana found in the residence he was storing for them.
Defendant said his marijuana recommendation was at his cousin's house in Elk Grove. He claimed that his personal recommendation was for 99 plants and five pounds of marijuana. He additionally claimed that he used a quarter ounce of marijuana each day. Baumann testified that he did not believe defendant used that much marijuana each day because, based on his experience, "that's an extremely high amount." Baumann testified that the average marijuana user will use around two grams each day. Individuals have previously told him that they use a quarter ounce a day, which is seven grams, but he generally discovers later that they did not use that amount on their own.
When asked by Baumann whether he had a job, defendant responded that he was unemployed and had recently lost his job, but earned money to pay for rent from odd jobs and his mother gave him $2,000, with which he paid $1,100 rent for the month. Baumann further asked defendant how much marijuana he estimated was in the apartment. Defendant responded that he was not sure. After Baumann asked him how he knew he was within his recommendation limit if he did not know how much marijuana was in the apartment, defendant stated he believed there was around five pounds in the apartment.
Baumann asked defendant if he could have someone bring his recommendation to the apartment. Defendant said no, but that he could go to Elk Grove to get it. Baumann explained that they were going to collect the marijuana and take it to his office. He gave defendant his office phone number and told him "here's my phone number, give me a call, bring in your recommendation, and the marijuana may be released to you." He informed defendant that, if he brought his recommendation to the police station, the marijuana may be released to him. Defendant was not arrested, but Derek was arrested and taken into custody.
A subsequent search of the cell phone recovered from Derek at the time of his arrest revealed numerous text messages related to marijuana sales. Based on those messages, Baumann opined that Derek was selling marijuana. Among the messages was a December 20, 2012, text message to defendant's phone number saying, " 'I need dank.' " Dank is a slang term for good quality or potent marijuana. On January 3, 2013, there was a text message from defendant's phone to Derek's phone stating, " 'How did we DN legs?' " Baumann testified that the response from Derek's phone was "$650, you keep a pound of Purp." "Purp" is a strain of marijuana, probably "Purple Kush or Purple Haze," according to Baumann.
Detective Andrew Palmore, a narcotics detective, testified that he examined the marijuana collected from defendant's apartment at the police department. Inside the ice chest there were 15 bags of marijuana along with loose marijuana at the bottom of the ice chest. The marijuana in the ice chest weighed a total of about six pounds. The plastic tub contained 1.88 pounds of marijuana in separate plastic bags. There were eight glass jars, each containing various amounts of marijuana ranging from less than one ounce to around two ounces for a combined weight of about one pound. Not including the unusable material, there was just over 10 pounds of useable marijuana found in the apartment. Palmore did not mention the plastic, eight-inch jar containing marijuana Baumann seized from the bedroom closet. Nor did he mention the marijuana found in the paper grocery bag in the living room closet.
Palmore testified that many of the plastic bags of marijuana had writing on them indicating the strain of plant, the weight of the marijuana in the bag, and some also had dollar amounts. The weights written on the bags were consistent with sales weights such as a quarter pound, a half pound, and ounces. The dollar amounts written on the bags were consistent with the street value of the marijuana. Based on his examination of all of the marijuana found in the apartment, Palmore testified that he did not believe this was "a medical marijuana situation." He opined that it was possessed and packaged for the purpose of sales.
Defendant's Phone Conversation with His Son Regarding the Seized Marijuana
While Derek was in custody, he made calls to defendant. The calls were made to the same phone number as the one involving the above text messages. During a call on January 14, 2013, the day after Derek was arrested, defendant informed Derek that he " 'went to the medical place today and . . . added on.' " Thereafter, Derek asked whether defendant had gone to the police station to " 'get [his] bud,' " and defendant replied that he was going to go the following day. Baumann testified that he interpreted this conversation to mean that defendant had attempted to increase the limits on his recommendation because he knew that he was not in compliance with his previous recommendation.
The Search of Defendant's Car and Defendant's Statements at the Police Station
Jerry Bodiford, defendant's cousin, testified that defendant drove over to Jerry's house. Defendant asked Jerry for a ride to the police station so defendant could pick up his marijuana. Defendant told Jerry he could not drive because he had been drinking, so Jerry drove defendant to the police station in defendant's car.
Palmore testified that defendant came to the police department to retrieve his marijuana on January 15, 2013, and he interviewed defendant at that time. Defendant showed Palmore two different marijuana cards. The first card was to expire in eleven months on December 18, 2013, and had a weight limit of four pounds. The cards are good for one year, so at that point, this card was good for another 11 months. Defendant showed him a second card with an expiration of January 13, 2014, with a 99-plant limit. Later in the search of defendant's car, Palmore found a third card which had a weight limit of four pounds and went with the new 99-plant limit card. Based on the jail call Derek made to defendant where defendant stated that he " 'went to the medical place today and . . . added on,' " Palmore concluded that defendant was trying to trick him into thinking the marijuana recovered from the apartment was within his weight limit by only showing him his plant limit recommendation on the newer card and not the recommendation with the weight limit. Plant limits and weight limits are unrelated, so Palmore knew that having a 99-plant limit did not mean that the 10 pounds of marijuana found in the apartment was within defendant's limit.
During the interview, defendant also told Palmore that he grew the marijuana that was found in the apartment. He said he had 15 to 20 plants that produced 10 pounds of marijuana.
When asked by Palmore how much marijuana he used per day, defendant responded that he smoked a quarter ounce per day, which would be seven grams. Defendant said he did not really measure how much he used, he just smoked it. Palmore did not believe defendant because an average amount to smoke in a day is two grams. Palmore attempted to determine if there was a more realistic amount defendant used, and defendant eventually said he used three to four grams per day and that some of it was eaten in edibles. Palmore testified that defendant stated that he wrote the weight of the marijuana and dollar amounts on the bags as a "fun way of seeing what the value is."
On cross-examination of Palmore, defendant introduced into evidence the recording of the entire statement he gave Palmore at the police station, allowing the jury to hear additional evidence concerning what he had said. Defendant told Palmore he had a medical need for marijuana because of a severe slipped disc and migraine headaches. He referred to the card indicating he could have 99 plants as a grower's card and said he had obtained it the day before because the previous card expired in December. He said he just got it because he went to check to make sure it was still valid and found out it expired in December. When Palmore pointed out his card did not expire until December 2013, defendant said he increased the level. Palmore testified that there is no such thing as a grower's card. He believed defendant was trying to use "this grower card terminology" to throw him off.
Defendant said during the interview he does "mechanic stuff" for work, but says he does not have a bank account because child support takes his money when he deposits it. He said he was trying to come up with $4,000 to pay off child support and he had not been able to "have a life" for 10 years because of the debt.
Defendant denied growing marijuana for purposes of sale. He said he grows marijuana so he and his family do not have to spend money on it. He said the marijuana he smokes is in the jars that were seized. He then said, "That's the stuff I've been smoking. Those ice chests don't mean nothing to me. They've just been sitting there like that. I mean, they're not something I reference. I don't -- I mean, I try to keep track of the different kinds. I try to keep track of how many grams, and I try to -- and I put a price on them, and it's not because I do that or I sell them on a regular basis like that." Palmore thought this was a slip up indicating that defendant sold marijuana sometimes. Defendant said their supply of marijuana for a year had been seized.
Based on his review of the evidence, Palmore opined that defendant was in the business of cultivating and selling marijuana and arrested defendant.
Defendant told Palmore that his car was in the parking lot. Palmore went to the parking lot with Baumann to locate the car. Jerry, who was still sitting in the driver's seat waiting for defendant, gave them permission to search the car. The car was registered to defendant. On the front passenger seat was a purple Motorola cell phone in close proximity to the third marijuana card. Additionally, the detectives discovered a glass jar containing 41.7 grams of marijuana, a clear plastic bag containing 203.9 grams of marijuana, a cardboard can containing 31.4 grams of marijuana, and another cardboard can containing 34.9 grams of marijuana. Palmore determined the marijuana in the jar and the cans was high quality and the same variety. Further, the glass jar containing 41.7 grams had " '600-2 2 OZ' " written on the lid, which Palmore believed meant the marijuana in that glass jar was being sold for $600 for two ounces. The price indicated this was high quality marijuana.
Palmore also located a duffle bag in the car. The duffle bag contained three bags of marijuana, two digital scales, and some additional small plastic bags. One of the scales had marijuana residue on it and the other scale had methamphetamine residue. Jerry claimed ownership of the duffle bag. He admitted that defendant gave him the marijuana found in the bag and that he did not have a medical marijuana recommendation.
City of Roseville Police Officer Jeffrey Beigh testified that they found $1,400 in cash on Jerry. Beigh counted the money and noted that it was broken down into the following denominations: four $5 bills, four $10 bills, fifty-two $20 bills, and three $100 bills. Beigh testified that these denominations were "consistent with what [he] would suspect somebody who is selling drugs or narcotics to possess" because if someone who wanted to buy marijuana "were to walk up with a hundred dollar bill, they have to be able to provide them with change."
Jerry testified that the money belonged to defendant. When defendant got out of the car at the police station he handed the money to Jerry and said, " 'Hold on to this, I might get arrested.' " Defendant told Palmore that the $1,400 belonged to him and that it was a loan from his mother.
Palmore testified that he contacted defendant's mother, Judith Halloway, who informed him that she had loaned defendant $4,000 so that he could run Craigslist and white pages ads for his landscaping business. However, this did not make sense to Palmore because it does not cost anything to run Craigslist ads and it is very inexpensive to run white pages ads. Additionally, defendant had previously informed Palmore that he had not worked on his landscaping business in over ten years.
Palmore testified that he reviewed the text messages in the purple Motorola cellular telephone. The messages were sent more than two years prior to the incidents in the present case. According to Palmore, these messages indicated defendant was growing and selling marijuana at that time. Palmore opined that the old text messages indicated defendant was still selling marijuana based on the fact that the text messages were dated around the time defendant said he started growing marijuana, Palmore's experience that people do not stop selling and defendant's growing behavior.
Defendant's Testimony
Defendant testified that the marijuana in the apartment belonged to him. He claimed he grew the marijuana through a "collective" located on his grandparent's property in Redding, California, which is where he was living at the time. Defendant stated that he kept a notebook pertaining to the collective but that he believed Palmore threw it away. Defendant's father and brother assisted with the collective. Defendant testified that he never sold any of the marijuana he had grown and he believed all of the individuals who helped at his collective had medical marijuana cards. When asked on cross-examination about his statement to Palmore about not selling marijuana on a regular basis, defendant responded, "Yes, that's what I said. I didn't say regular basis. I said, It's not like I go around selling marijuana every day, because he was trying to implement [sic] that I did sell marijuana every day and that got blown out of text [sic]." (Italics added.) Defendant did admit that on one occasion he gave approximately one pound of marijuana to Jerry who did not have a medical marijuana recommendation. Defendant claimed that the marijuana found in his car did not belong to him and he had no idea where it came from.
Defendant had an expert testify that a collective is a system for growing marijuana where patients and caregivers cultivate marijuana together for one another. In a collective, each member must work to contribute to the operation and the member's share of marijuana is determined based on how much work that person did.
Defendant testified that he moved the marijuana from his grandparents' house in Redding to the apartment in Roseville because he needed to move out of his grandparents' house. He testified that because his grandfather was sick, his niece and her family moved in to defendant's previous residence on the property to take care of his grandparents.
Verdict and Sentencing
The jury found defendant guilty of two counts of possession of marijuana for sale. The trial court subsequently sentenced defendant to sixty days in county jail and five years of formal probation.
DISCUSSION
I. Motion to Suppress
A. Background and Defendant's Contentions
Prior to trial, defendant moved to suppress the evidence found at the apartment and in his car, as well as the statements he made to the police on both occasions. In his motion, defendant argued that police officers detained him, obtained statements from him, and searched his property without a warrant. The motion to suppress was heard in conjunction with the preliminary hearing.
At the preliminary hearing, only Baumann testified about the search of the apartment. He testified that he was called to assist in the investigation after marijuana was discovered in the apartment. When he arrived at the apartment he was informed that, while Kelley and Williams were at the apartment performing a civil standby, they learned that one of the occupants, Derek Bodiford, was on probation and subject to a search condition. Defendant was not on probation. Pursuant to Derek's probation status, Kelley and Williams performed a probation search of the apartment. The apartment had two bedrooms, a master bedroom and a hallway bedroom. There are two bathrooms, one connected to the master bedroom and a second bathroom in the hallway. The hallway bedroom is not connected to the master bedroom or the master bathroom. During the search by Kelley and Williams, "items belonging to Derek" were found in both the master bedroom and the hallway bedroom.
After his arrival, Baumann confirmed the probation status of Derek and that he was subject to a search condition, and additionally confirmed which rooms defendant and Derek resided in. He did not say what he did to make this confirmation or what specific information he was provided that served as confirmation. He then conducted an additional search of the apartment. Baumann found unspecified indicia that defendant, Derek, and Bongiovanni were living in the apartment.
Regarding the hallway bedroom, Baumann did not know whether the door had a lock on it. He also did not know whether the door was open or closed prior to the initial search by Kelley and Williams. Baumann observed marijuana in the hallway bedroom and hallway bathroom.
At some point while Baumann was at the apartment, he interviewed defendant. Baumann's testimony is not clear on when relative to the search of the hallway bedroom that this interview took place. Baumann testified and the hearing that defendant was at the apartment prior to his arrival, but he was not sure whether defendant was present when Kelley and Williams arrived or whether defendant arrived at the apartment later. He believed defendant was present when the officers arrived. Baumann did not testify about what conversation the officers had with defendant prior to Baumann's arrival and there is no other evidence in the record concerning this.
Inconsistent with his testimony at the combined preliminary hearing and section 1538.5 hearing, Baumann testified at trial that after Kelley contacted defendant, he arrived at the apartment while Baumann was there.
During Baumann's interview, defendant initially said all of the marijuana in the apartment was his. He confirmed that defendant was saying the marijuana in the hallway bedroom, hallway bathroom, and living room closet was his. However, he later stated that some of it belonged to his father and brother and that he was storing it for them. Defendant told Baumann he had paid $1,100 for rent in January 2013.
Neither Kelley, nor Williams testified at the combined preliminary hearing and section 1538.5 motion. The only testimony concerning their search came from Baumann, but because defendant failed to object on hearsay grounds, the claim is forfeited. (People v. Hawkins (2012) 211 Cal.App.4th 194, 202-204.) Absent an objection, the magistrate could consider what would otherwise be hearsay for the truth of the matter and so may we. (People v. Rodriguez (1969) 274 Cal.App.2d 770, 776 ["hearsay evidence is competent and relevant in the absence of a specific hearsay objection"].)
Palmore also testified at the preliminary hearing/section 1538.5 hearing. In addition to his examination of the marijuana seized at the apartment, he testified about aspects of the statement he took from defendant and the search of defendant's vehicle recounted ante in our discussion of the trial evidence.
At the conclusion of the hearing, defense counsel argued that the hallway bedroom was clearly defendant's bedroom, defendant was not on probation and there was no evidence the room could be searched pursuant to Derek's probation condition. Counsel pointed out that there was no testimony as to how the officers initially entered hallway bedroom. There was no testimony showing whether, when officers first arrived, the door to hallway bedroom was open or closed, locked or unlocked. The officers found indicia of Derek in the room, but that was after the officers entered the room. Defense counsel argued that there was no other probable cause to search defendant's room.
The prosecution argued that the officers were initially in the apartment for a civil standby. While they were in the apartment they discovered that Derek was on probation. They found indicia of Derek living throughout the apartment. Therefore, according to the prosecution, there was no violation because Derek was on probation and the officers conducted a lawful probation search.
The magistrate denied the motion to suppress without comment. Defendant then filed a renewed motion to suppress with the trial court. In his motion, defendant argued that the majority of the marijuana in the apartment was found in his bedroom and there was no evidence presented showing that officers were entitled to enter that room. Defendant further argued that the prosecution did not attempt to elicit details of the search at the hearing because they called a witness to the stand who arrived several hours after the search and did not know any of the details. Based on this, defendant contended the marijuana and scales found in his bedroom should be suppressed. Further, defendant argued that all evidence obtained when defendant went to the police station should be suppressed as fruit of the poisonous tree.
At the hearing on the renewed suppression motion, defendant reiterated his argument that there was no testimony regarding the original entry into hallway bedroom. Defendant argued, that as consequence, all evidence found in that bedroom and all evidence acquired when defendant went to the police station should be suppressed. The prosecution argued that, because Derek was on probation and because indicia related to Derek was found in hallway bedroom, the search was justified.
The trial court denied the renewed motion to suppress. The court noted that the magistrate's findings, express and implied, are binding and all presumptions are to be drawn in favor of the magistrate's determinations. According to the court, a "pertinent implied factual finding" was that the items belonging to Derek were found in both the master bedroom and the hallway bedroom. While there was some evidence presented that the hallway bedroom was defendant's room, there was no evidence that Derek did not have access and use of that bedroom. To the contrary, the court noted, the presence of items belonging to Derek in the hallway bedroom established that it was accessible to him for his personal items. Therefore, the court denied defendant's renewed motion to suppress.
On appeal, defendant contends the trial court erred in denying his motion to suppress. He argues the search of his apartment violated his Fourth Amendment right to be free from unreasonable search and seizure because "there was no evidence that Derek's probation status was known prior to the initial search." Defendant further argues, even if the search of the apartment was justified as a probation search, "there was insufficient evidence to establish that the search of [defendant]'s room was within its scope." Finally, defendant contends the evidence found in his bedroom and vehicle as well as his statements must be suppressed as fruit of the poisonous tree. We requested supplemental briefing, asking a series of questions concerning how the attenuation doctrine might apply to the searches and statements and whether any Fourth Amendment violation related to the events at the apartment was harmless relative to count three, possession for sale of the marijuana found in defendant's vehicle.
We agree that the trial court erred in denying defendant's motion to suppress the evidence found in the hallway bedroom closet. As we explain, the prosecution did not carry its burden to establish that the hallway bedroom was subject to Derek's search condition. Consequently, the evidence found in that bedroom should have been suppressed as well as any and all statements defendant made to the police while at the apartment. Because we cannot say that the remaining marijuana found in the hallway bathroom and the living room coat closet were sufficient to prove possession for sale, we reject the People's contention that any error in failing to suppress the marijuana found in the hallway bedroom closet was harmless as to count one.
As for the marijuana and other evidence found in defendant's vehicle at the police department, the subject of count three, and the statements defendant made when he came to the police department, we conclude that the attenuation doctrine applies and reject defendant's contention that that evidence should have been suppressed as the fruit of the illegal search of the hallway bedroom and statements defendant made at the apartment.
We further conclude that any evidence admitted during trial related to the apartment search and defendant's statements made at the apartment was harmless beyond a reasonable doubt as to count three.
B. Analysis
1. Standards of Review
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser); see People v. Weaver (2001) 26 Cal.4th 876, 924.) In the case of a suppression motion made at the preliminary hearing and renewed in the trial court, we concern ourselves " 'solely with the findings of the [magistrate].' " (People v. Romeo (2015) 240 Cal.App.4th 931, 941 (Romeo).) "After submission on the transcript at the special hearing, the appellate court, like the superior court, is bound by the magistrate's factual findings so long as they are supported by substantial evidence." (Ibid.) Thus, " 'we in effect disregard the ruling of the superior court and directly review the determination of the magistrate.' " (Ibid.) And "we consider the record in the light most favorable to the People since 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' " (Ibid.)
Where the search is conducted without a warrant, the burden is on the People to establish by a preponderance of the evidence justification under a recognized exception to the warrant requirement. (People v. Johnson (2006) 38 Cal.4th 717, 728-729 (Johnson); Romeo, supra, 240 Cal.App.4th at p. 939.) A probation search is one such exception. (Romeo, at p. 939.)
2. The Search of the Hallway Bedroom
Probation conditions may validly authorize warrantless searches of the probationer's home, person, and effects. (People v. Woods (1999) 21 Cal.4th 668, 674-675 (Woods).) The search may extend to areas over which the probationer shares common authority with non-probationers, based on the rationale that persons who mutually use areas to which they have joint access and general control over assume the risk that any one of them may consent to such common areas being searched. (Id. at p. 676; People v. Smith (2002) 95 Cal.App.4th 912, 916 (Smith), citing United States v. Matlock (1974) 415 U.S. 164, 171 & fn. 7 .)
On the other hand, officers carrying out a probation search "generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over." (Woods, supra, 21 Cal.4th at p. 682, italics added; People v. Carreon (2016) 248 Cal.App.4th 866, 877 (Carreon).) "Stated differently, a probation search falls within permissible bounds if the police reasonably suspect that an area to be searched is jointly controlled by the probationer." (People v. Pleasant (2004) 123 Cal.App.4th 194, 199 (dis. opn. of McIntyre, J.), italics added (Pleasant).) As noted, probation searches are grounded on the justification that the probationer has given consent to conduct the search. And "the issue critical to consent is not whether the consenting party had actual access, but whether it was 'objectively reasonable for the searching officer to believe that the person giving consent had authority to do so.' " (Carreon, at p. 877.) The burden is on the prosecution to establish the probationer had apparent common authority over the area searched. (Ibid.)
As our high court has noted: "There is good reason to limit a warrantless, suspicionless residential search to areas where an officer reasonably believes the parolee or probationer exercises 'common authority.' [Citations.] 'The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.' [Citation.] The sanctity of the home demands recognition that persons living with a probationer or parolee 'retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas.' " (People v. Schmitz (2012) 55 Cal.4th 909, 919-920 (Schmitz); People v. Robles (2000) 23 Cal.4th 789, 798 (Robles), italics added.)
As our high court has emphasized at least twice, the authority to search pursuant to a probation search condition does not " 'legitimize unreasonable searches with respect to nonprobationers who share residences with probationers.' " (Schmitz, supra, 55 Cal.4th at p. 917, quoting Woods, supra, 21 Cal.4th at pp. 681-682.) Thus, "unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so." (Woods, at p. 682.)
A recent example of the rule requiring that officers reasonably believe the probationer has control over a room to be searched in a residence inhabited by multiple adults can be found in Carreon, supra, 248 Cal.App.4th 866. In that case, the defendant was prosecuted for possession of a controlled substance for sale based on methamphetamine found in a bedroom at the house where she was staying. (Carreon, at p. 870.) The residence was leased by the probationer. (Id. at pp. 870, 874.) The probation department searched the residence based on information that the probationer, who was subject to a search condition, was dealing drugs. (Id. at p. 872.) The bedroom that was searched was a converted garage, accessible from inside the house through a laundry room. (Id. at p. 870.) The door was closed but unlocked when the officers entered during a probation search. (Ibid.) While conducting a protective sweep, the officers removed the defendant and her young son from the bedroom. (Id. at pp. 870, 873.) The searching officers testified they believed the room was the defendant's room and not inhabited by the probationer. (Id. at pp. 870, 873.) The probationer had told one of the officers that she was living at the residence and defendant was staying in the converted garage. (Id. at p. 872.) One of the officers testified that, once the probationer said it was her and her boyfriend's house, he believed that she had access to the whole house unless a door was locked. (Ibid.) He did not ask whether defendant was renting a room from the probationer. (Ibid.) Neither officer saw signs of restricted access to the converted garage or noticed if there was a lock on the door. (Id. at p. 873.) Ultimately, the search of the garage yielded a pay/owe sheet found in a drawer and methamphetamine found inside a purse in the room. (Id. at pp. 870, 873.) Defendant admitted the methamphetamine was hers. (Id. at p. 873.)
The Carreon court noted, "Officers who are aware of a probation search condition [citation] 'generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over.' [Citation.] 'The sanctity of the home demands recognition that persons living with a probationer or parolee "retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas." ' " (Carreon, supra, 248 Cal.App.4th at p. 877, italics added.) The court went on to note that "[w]hat is, or reasonably appears to be, within a probationer's common authority will depend on the specific factual setting of each search." (Ibid.) Searching officers, the court acknowledged, are entitled to rely on appearances. (Id. at pp. 877-878.) The Carreon court held the search was invalid based on the information the officers had when they conducted the search. (Id. at pp. 878-879.) The court concluded that "the prosecution did not present sufficient evidence to justify a warrantless search or an objectively reasonable belief that the probationer had authority over the contents of either the drawers or the purse in defendant's bedroom." (Id. at p. 881.)
While the magistrate here did not make any express findings, our independent review is in accord with the trial court in that we conclude the magistrate made an implied finding that items belonging to Derek were found in both the master bedroom and the hallway bedroom. Additionally, it is an implied factual finding that Derek was on probation, officers learned of his probation at some point while they were in the apartment for a civil standby, and at some point thereafter the officers proceeded to search the apartment. During the search, officers found marijuana in various places throughout the apartment. These implied factual findings are supported by substantial evidence through Baumann's testimony at the hearing. Therefore, we defer to these implied findings of fact. However, as we will discuss, one critical fact was not and could not be found by the magistrate. There was no finding as to what information the original officers had regarding who had control over the hallway bedroom before they entered. And it is their state of mind that is critical. (Carreon, supra, 248 Cal.App.4th at p. 877 ["What is relevant is the searching officer's state of mind"].)
In determining the legality of the search on the facts so found, we exercise our independent judgment. (Glaser, supra, 11 Cal.4th at p. 362.) We conclude the People did not meet their burden here of proving by a preponderance of the evidence a recognized exception to justify searching the hallway bedroom without a warrant. Because Derek was on probation, he gave advance consent for officers to search his residence, including the common areas where he shared authority and control with non-probationers, such as the living room, kitchen, hallway, and hallway bathroom. (Woods, supra, 21 Cal.4th at pp. 674-675, 682.) The search of these areas was reasonably related to the purposes of probation since the magistrate impliedly found that the officers learned of Derek's probation status prior to searching the apartment. (See Robles, supra, 23 Cal.4th at p. 798.) Therefore, the search of all common areas and areas within Derek's control in the apartment was justified under an exception to the warrant requirement, and the marijuana discovered in the search of those areas was properly admitted.
However, the People presented no evidence upon which a finding could be based that the original officers reasonably believed Derek had any control over the hallway bedroom before those officers entered and searched. This failing is directly attributable to the failure to call a necessary witness at the preliminary hearing. Kelley, the officer who originally entered and conducted a probation search in the hallway bedroom, did not testify in connection with the suppression motion. Neither did Williams, who was with Kelley. Baumann did not arrive to the apartment until after a search of the hallway bedroom and the rest of the apartment had already been conducted by Kelley and Williams. Consequently, Baumann had no personal knowledge of the initial probation search. Nor did Baumann know what knowledge either officer had relative to who had control over the hallway bedroom prior to their entry into the room. Nor did Baumann know the circumstances related to the entry of defendant's room. For example, Baumann testified that he did not know whether, prior to the initial search, the hallway bedroom door had been open or closed, locked or unlocked. He did not testify about what information, if any, the officers had regarding who occupied or otherwise had control over the hallway bedroom before they conducted a search therein. He testified that the officers who conducted the initial search found indicia of Derek in the hallway bedroom, but that was during the search of the bedroom. Officers may not justify a search post hoc based on evidence found during the search. It is well-settled that "a search is not to be made legal by what it turns up. [Fn. omitted.] In law it is good or bad when it starts and does not change character from its success." (United States v. Di Re (1948) 332 U.S. 581, 595 [92 L.Ed. 210, 220]; Langford v. Superior Court (1987) 43 Cal.3d 21, 35, fn. 4.) This well-established principle was recently relied upon by the court in Carreon. (Carreon, supra, 248 Cal.App.4th at p. 879 ["A search must be justified by information then available to the searching officers, not by evidence discovered by the search"].) Further, "whether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted and is consistent with the primary purpose of the exclusionary rule—to deter police misconduct." (People v. Sanders (2003) 31 Cal.4th 318, 332.) Thus, officers must have a reasonable belief the probationer has complete or joint control over an area searched before the area is searched.
At trial, the prosecution did not offer evidence as to whether Kelley saw the marijuana in the hallway bedroom from the hallway before conducting the search or whether he discovered it during the search of that bedroom. Indeed, his testimony would suggest he did not see the jar from the hallway. When asked how he became aware of marijuana in the apartment, he testified, "When -- basically, when I went into one of the bedrooms, I noticed a Mason jar of marijuana." The marijuana was in the bedroom closet. As described, the sequence of events indicates he did not see the marijuana until after he entered the bedroom. Further, he did not indicate whether the door to the bedroom was open or closed before he went inside. Nor did he testify about whether there was a door on the closet, and if so whether it was open or closed before he looked inside. Nor did anything Kelley said during his trial testimony suggest he knew Derek had any authority or control over the bedroom before he entered.
The People rely on People v. Johnson (1980) 105 Cal.App.3d 884, 888 (S. Johnson) and People v. LaJocies (1981) 119 Cal.App.3d 947, 955 (LaJocies) for the proposition that the officers were entitled to search areas of the apartment "to which the probationer 'normally had access.' " The implication is that if defendant could physically access the hallway bedroom, then the officers were entitled to search. But the People's argument conflates having physical access to a room with having control over the room. Mere physical access is not the standard reflected in the authorities we have discussed that require a reasonable belief of either complete or joint control by the probationer. Indeed, our reading of S. Johnson and LaJocies reveals that by "normally had access," those courts were referring to complete or joint control over areas mutually used by the probationer and other occupants.
In S. Johnson, supra, 105 Cal.App.3d 884, parole officers went to the defendant's home where a parolee was staying. After the defendant confirmed that the parolee stayed there, the parole officers asked the defendant if they could search "those portions of the house that [the parolee] had occupied or to which he had access." (Id. at p. 887.) They were directed to a bedroom and the officers commenced a search, but then the defendant demanded that they stop. (Ibid.) In the meantime, an officer who had waited outside, saw marijuana growing 30 to 40 feet from the driveway. (Ibid.) Thereafter, the officers obtained a search warrant. (Ibid.) For a reason not revealed in the decision, on appeal the defendant asked the court to hold that it was illegal to search any part of his house over his objection. (Id. at p. 888.) The S. Johnson court reasoned that "[t]he officers clearly had a right in this case to search portions of the house which had been occupied by [the parolee] and areas to which he normally had access," and then went on to observe that "the record does not show that [the search] extended into any portions of the house in the exclusive control of the defendant or his wife." (Ibid.) Clearly, the S. Johnson court's reference to areas to which the parolee "normally had access" did not include areas to which the parolee merely had physical access but did not also have at least joint control.
In LaJocies, supra, 119 Cal.App.3d 947, a parolee and his wife were convicted of weapons offenses after parole agents searched their home. (LaJocies, at pp. 952-954.) On appeal, the wife asserted that, notwithstanding her husband's parole status, her right to be free from unreasonable searches and seizures required a warrant, or her consent, prior to the search. (Id. at p. 954.) The court held that "[t]he officers clearly had a right to search those portions of the house occupied by [the parolee husband] and to which he had access." (Id. at p. 955, citing S. Johnson, supra, 105 Cal.App.3d at p. 888.) Like S. Johnson, the LaJocies court's reference to normal access does not imply that officers can search areas over which the defendant merely has physical access but does not at least have joint control. As we have noted, the third party consent justifying the search of common areas "rests on mutual use of the property by persons generally having joint access or control." (Schimtz, supra, 55 Cal.4th at pp. 919-920, italics added; Woods, supra, 21 Cal.4th at p. 676; Smith, supra, 95 Cal.App.4th at p. 916.) And as the court in Carreon noted, "it flouts widely held social expectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers." (Carreon, supra, 248 Cal.App.4th at p. 879.) Accordingly, we reject the People's physical access theory.
The People also contend that the "[e]ntry into the hallway bedroom to see who had access and/or control was reasonable here because the patrol officers had no information that [defendant] was claiming exclusive ownership of the room." This contention fails for two reasons.
First, the People cite no authority to support the proposition that officers may enter a bedroom in a residence occupied by multiple adults to determine whether the probationer had joint authority or control over the bedroom and we are aware of none. Indeed, the People's argument turns the applicable rule on its head. As we have noted, a probation search of a room is only lawful when the searching officers reasonably believe the probationer has either complete or joint control over the room. (Schmitz, supra, 55 Cal.4th at pp. 919-920; Woods, supra, 21 Cal.4th at p. 682; Carreon, supra, 248 Cal.App.4th at p. 877.) And the prosecution has the burden of justifying any warrantless search by a preponderance of the evidence. (Johnson, supra, 38 Cal.4th at pp. 728-729; People v. James (1977) 19 Cal.3d 99, 106; Carreon, at p. 876.)
Second, even if the People's theory is correct that the officers could enter to determine whether the probationer had authority or control over the bedroom if the officers had no information a non-probationer was claiming exclusive authority and control, the record related to the suppression motion here does not reflect what the officers who conducted the initial probation search knew or did not know before the search of hallway bedroom. Indeed, it appears that defendant was present at some point when the original officers were at the house, but the court never heard from them about what conversations they had with defendant or, Bongiovanni for that matter, before they conducted the search. As a consequence, we do not know whether or not the officers actually had no information about whether defendant had exclusive control over the bedroom, or whether the officers had information upon which to base a reasonable belief that Derek had at least joint control over the bedroom, or whether they actually knew defendant had exclusive control and Derek merely had physical access as in Carreon.
Because there is no evidence in the record from which to conclude the officers had a reasonable belief Derek had either complete or joint control over the hallway bedroom before they searched that area and because the burden is on the People, we conclude the People failed to establish the probation search exception to the warrant requirement justified the search of that part of the apartment. Thus, the trial court erred in denying defendant's motion to suppress the items found in the hallway bedroom. We next address whether the defendant's statements at the apartment, the discovery of marijuana in his car two days later and statements he made at the police station are attenuated from the taint of the unlawful search of the hallway bedroom closet.
3. Fruit of the Poisonous Tree—Attenuation Doctrine
In Utah v. Strieff (2016) ___ U.S. ___ [136 S.Ct. 2056, 195 L.Ed.2d 400] (Strieff), the high court discussed the application of the attenuation doctrine. The court did so in the context of answering the question of whether the "attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest." (Strieff, at p. 2059.) The court held "that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest." (Ibid.)
In Strieff, an officer saw the defendant exit a residence that had been under surveillance after law enforcement received a tip about narcotics activities there. (Strieff, supra, 136 S.Ct. at pp. 2059-2060.) During periods of previous surveillance, the officer had observed short-stay visiting. (Id. at p. 2059.) After seeing defendant leave the home, the officer detained him at a nearby store parking lot, asked him what he had been doing at the house and asked for his identification. (Id. at p. 2060.) After relaying the defendant's identifying information to the police dispatcher, the officer was informed defendant had an outstanding arrest warrant for a traffic violation. (Ibid.) Thereafter, the officer arrested defendant and in a search incident to that arrest, found methamphetamine and drug paraphernalia on his person. (Ibid.) At the suppression hearing, the prosecutor conceded that the officer lacked reasonable suspicion to justify the stop. (Ibid.) The majority in Strieff concluded that although defendant had been illegally detained, the search incident to his arrest was attenuated from the illegal detention by the arrest warrant. (Ibid.)
The Strieff court noted that under the high court's precedents, "the exclusionary rule encompasses both the 'primary evidence obtained as a direct result of an illegal search or seizure' and, relevant here, 'evidence later discovered and found to be derivative of an illegality,' the so-called ' "fruit of the poisonous tree." ' [Citation.] But the significant costs of this rule have led us to deem it 'applicable only . . . where its deterrence benefits outweigh its substantial social costs.' [Citation.] 'Suppression of evidence . . . has always been our last resort, not our first impulse.' " (Strieff, supra, 136 S.Ct. at p. 2061.)
The attenuation doctrine is an exception to the poison fruit doctrine. (Strieff, supra, 136 S.Ct. at p. 2061.) Under the attenuation doctrine, "[e]vidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.' " (Ibid.) "The attenuation doctrine evaluates the causal link between the government's unlawful act and the discovery of evidence, which often has nothing to do with a defendant's actions." (Ibid.) Thus, although prior cases looked to whether there was some independent act of a defendant's free will to establish attenuation, such an independent act is not necessary.
The Strieff court discussed three factors it had previously identified in Brown v. Illinois (1975) 422 U.S. 590 (Brown), to be considered in determining whether there is an attenuation. "First, we look to the 'temporal proximity' between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. [Citation.] Second, we consider 'the presence of intervening circumstances.' [Citation.] Third, and 'particularly' significant, we examine 'the purpose and flagrancy of the official misconduct.' " (Strieff, supra, 136 S.Ct. at pp. 2061-2062.)
The court reasoned that the temporal proximity factor favored suppression in Strieff's case, noting that its prior precedents "declined to find that this factor favors attenuation unless 'substantial time' elapses between an unlawful act and when the evidence is obtained." (Strieff, supra, 136 S.Ct. at p. 2062.) "[A] short time interval counsels in favor of suppression." (Ibid.) However, the Strieff court reasoned that the second and third factors "strongly favor[ed] the State." (Id. at pp. 2062-2063.) As for the second factor, the presence of intervening circumstances, the court noted that a valid warrant existed that predated the officer's investigation and was "entirely unconnected with the stop." (Id. at p. 2062.) The warrant was a judicial mandate, executing it was a ministerial act, and once the officer arrested the defendant "it was undisputedly lawful to search [the defendant] as an incident of his arrest." (Ibid.) As to the third factor, the purpose and flagrancy of the official misconduct, the court noted that the purpose of the exclusionary rule is to deter police misconduct and the third factor reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence -- that is, when it is purposeful or flagrant. (Id. at p. 2063.) The Strieff court concluded that the officer was at most negligent in stopping the defendant. (Ibid.) Because the officer had not seen the defendant enter the residence and the officer had no other knowledge whether he was a short-term visitor, the officer should have asked the defendant whether he would speak with him rather than demanding the defendant to do so. (Ibid.) However, according to the court, these errors in judgment did not "rise to a purposeful or flagrant violation of [the defendant]'s Fourth Amendment rights." (Ibid.) Because of the anonymous tip and the officer's prior short-stay observations, this "was not a suspicionless fishing expedition 'in the hope that something would turn up.' " (Id. at p. 2064.) The officer's conduct after the stop was lawful, the decision to run the warrant check was a negligibly burdensome precaution for officer safety, and the search was a lawful search incident to arrest. (Id. at p. 2063.) The court concluded that although the illegal stop was close in time to the defendant's arrest, that consideration was outweighed by the other two factors supporting the State. The discovery of the warrant broke the causal chain between the unconstitutional stop and the discovery of information compelling the officer to arrest the defendant. (Ibid.)
Years before Strieff, our high court held that the attenuation doctrine applied in a similar situation. (People v. Brendlin (2008) 45 Cal.4th 262, 265, 269 (Brendlin).) In Brendlin, the defendant was a passenger in a car that was stopped without reasonable suspicion of any violation. (Brendlin, at p. 265.) Thereafter, a parole warrant was discovered for the defendant, and a search of defendant and the car was conducted incident to the defendant's arrest. (Ibid.) The Brendlin court applied the same three factors from Brown later considered by the high court in Strieff and concluded that the taint of the illegal detention had been attenuated by the subsequent discovery of the warrant. (Id. at pp. 269-270.)
We must apply the Brown/Strieff/Brendlin factors to evidence in this case to determine if there was a break in the causal chain between the unconstitutional search of the hallway bedroom closet and the seizure of the marijuana found therein and the following: the statements defendant made to Baumann at the apartment, the marijuana found in his car two days later at the police station and the statements defendant made to Palmore at the police station. We begin with the marijuana found in the car at the police station and then we will address both sets of statements defendant made to the police.
4. The Marijuana Found in Defendant's Car at the Police Station
Here, the temporal proximity factor cuts in favor of the prosecution. Defendant concedes as much. The search took place two days after the unlawful search and seizure, and it occurred at a different location. Unlike in Strieff, there was a significant gap of time here. Even so, as seen in Strieff, a gap of time is not required, but when there is such a gap, the argument for attenuation is clearly much stronger.
The intervening circumstance factor also cuts in favor of the prosecution here. As the court in Strieff noted, the attenuation doctrine does not require an independent act of the defendant. (Strieff, supra, 136 S.Ct. at p. 2061.) But here, there is such an act. Evidence can be attenuated by a defendant's act of free will. (People v. Caratti (1980) 103 Cal.App.3d 847, 852 (Caratti).) "[E]vidence is sufficiently attenuated if it was obtained by an independent voluntary act by the [defendant] which is distinguishable from the initial illegality." (Ibid. [a defendant's decision to sell drugs to an undercover officer was an intervening independent act which was attenuated from an earlier illegal search of his car revealing his involvement in drug sales and making him a target for the undercover buy].) Defendant here voluntarily went to the police station in his car, which contained a significant amount of marijuana and evidence indicating he possessed that marijuana for sale. Had defendant not engaged in this independent act, there would be no count three.
Defendant's own independent voluntary act of committing a new crime by bringing marijuana to the police station in his car attenuated the taint of the illegal search two days earlier. Defendant tries to distinguish hauling his marijuana to the police station from the voluntary visit to the police station the defendant made in Wong Sun v. United States (1963) 371 U.S. 471 . In Wong Sun the defendant had been arrested without probable cause or a warrant, arraigned and informed of his rights before voluntarily going to the police station, where he made a statement to the police the court concluded was admissible under the attenuation doctrine. (Id. at p. 491.) Here, defendant asserts that the police "lulled him into a false sense of security." We conclude that the distinction defendant draws between this case and Wong Sun is insignificant here. Defendant cites no case requiring that an advisement of constitutional rights be provided prior to defendant's voluntary act in order to dissipate the taint and we are aware of none. Moreover, we disagree that there is any evidence the police lulled him into a false sense of security as defendant asserts. First, we reject the notion that anything the police did or said at the apartment somehow made defendant feel safe to drive to the police station parking lot in a car containing a large quantity of marijuana. Second, the evidence at the suppression hearing included no testimony concerning what defendant was told by Baumann about retrieving the marijuana.
A second independent act took place when Jerry consented to the search of the vehicle. (See People v. Sesslin (1968) 68 Cal.2d 418, 428 [independent act by a third party can attenuate the primary taint]; Caratti, supra, 103 Cal.App.3d at p. 851 ["[t]he defendant's consent if 'sufficiently an act of free will to purge the primary taint of the unlawful [conduct]' [citation] may produce the requisite degree of 'attenuation' "].) Defendant acknowledges that consent can be an intervening circumstance purging the primary taint of the initial illegality, but contends the prosecution failed to establish that Jerry gave his consent freely and voluntarily. This is so, according to defendant, because the evidence is ambiguous as to whether Jerry was already in the police station being interrogated when he gave his consent or whether he was outside by the car. But defendant cites no authority indicating that a person cannot give valid consent to search while in custody. In fact, valid consent can be given under such circumstances as long as consent is voluntary. (See, e.g., People v. Ratliff (1986) 41 Cal.3d 675, 686 ["the fact that defendant was handcuffed when his consent was sought does not demonstrate that his consent to a search was involuntary. Instead, that fact is to be weighed in the balance along with all other circumstances bearing on this issue"]; People v. Hernandez (1988) 199 Cal.App.3d 1182, 1188 [holding consent was voluntary where the defendant was under arrest and being held in custody but the officers did not use force, intimidation, or other "improper inducements to obtain consent"].) Palmore testified Jerry gave him permission to search the car. And, as the People point out, there is no evidence Jerry's will was overborne. Indeed, defendant never challenged the search of the car on the ground that Jerry did not give valid consent.
The third Brown/Strieff/Brendlin factor, the purpose and flagrancy of the illegal search, cuts in favor of suppression because of the evidentiary gaps in the record of this case. True, the officers were validly on the premises and had the authority to search areas of the home over which Derek exercised control. But as we have noted, the record is devoid of what information, if any, the officers had concerning defendant's occupancy of the hallway bedroom or Derek's control over that room prior to the search. Whether the officers acted in good faith is a mystery. As we have said, the burden of justifying the search was on the prosecution to establish its legality by a preponderance of the evidence. (Johnson, supra, 38 Cal.4th at pp. 728-729; Carreon, supra, 248 Cal.App.4th at p. 876; Romeo, supra, 240 Cal.App.4th at p. 939.) That burden is not satisfied by merely establishing that one of the residents of the apartment was on searchable probation.
For purposes of the third Brown/Strieff/Brendlin factor, given the prosecution's failure to establish any evidence concerning the officers' knowledge before the search of the hallway bedroom concerning the extent of Derek's control, we cannot rule out the possibility the officers here engaged in a blanket search all parts of the house without confirming who occupied the hallway bedroom or otherwise determining what areas over which Derek also had complete or joint control. Notwithstanding the post-trial United States Supreme Court decision in Strieff, this is evidence the prosecution should have introduced under the California decisional law existing at the time requiring a reasonable belief that the probationer has complete or joint control over the area searched as well as Brown and Brendlin on the attenuation issue. Unlike the " 'negligibly burdensome' " stop in Strieff, followed shortly thereafter by the discovery of an active warrant (Strieff, supra, 136 S.Ct. at p. 2063), the officers here invaded the one space over which most people have the greatest expectation of privacy, a bedroom. Further, as we have noted, the Strieff court considered important the fact that the search in that case "was not a suspicionless fishing expedition 'in the hope that something would turn up' " in light of the prior anonymous tip and the officer's observations of short-stay traffic. (Id. at p. 2064.) The officers here had no such prior information fueling any suspicion of the possession of contraband. While officers are entitled to engage in a "suspicionless fishing expedition" (ibid.) during a probation search as long as the search is "reasonably related to the purposes of probation" (Robles, supra, 23 Cal.4th at p. 797) and is not undertaken for harassment or arbitrary or capricious reasons (Bravo, supra, 43 Cal.3d at p. 610), they are not entitled to search areas over which they have no reasonable belief the probationer has at least joint control. To search a nonprobationer's room over which the defendant does not have joint control, officers must obtain a search warrant unless the circumstances otherwise justify a warrantless search, such as plain view or exigent circumstances. (Woods, supra, 21 Cal.4th at p. 682.)
The People argue that any violation is de minimus because the police conducted a valid probation search of the apartment. According to the People, the only question is the scope of that search and "[s]ince the officers did not knowingly violate any right, and since any infringement was de minimus, the officer's conduct cannot be described as flagrant." But this argument misses the point. We cannot determine whether the original officers knowingly violated any right because we do not know what those officers knew. For all we know, the original officers knew defendant had sole control over the hallway bedroom and that Derek merely had physical access as in Carreon, supra, 248 Cal.App.4th 866.
However, based on the evidence at the suppression hearing, there was no evidence indicating the police compelled defendant to go to the police station two days later, much less do so in a car containing a large amount of marijuana. Defendant's act of transporting a large amount of the marijuana and sales-related items in his vehicle to the police station was completely voluntary and independent of any taint associated with the illegal search of his bedroom. It matters not that defendant went to the police station in an attempt to recover the marijuana taken from his bedroom as defendant asserts on appeal. Nothing the police did compelled defendant to do so. Moreover, not all evidence is " ' "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police.' " (Brown, supra, 422 U.S. at p. 599; Brendlin, supra, 45 Cal.4th at p. 268.) Given the lapse of time and the intervening circumstances here, we conclude the chain of causation proceeding from the unlawful conduct is so attenuated as to remove any taint resulting from the original illegality. The poison fruit doctrine does not apply to the evidence found in defendant's car.
5. Defendant's Statements
Next we consider whether the statements defendant made to Baumann at the apartment and to Palmore two days later at the police station should be suppressed as fruit poisoned by the unconstitutional search of the hallway bedroom. We look to Brown, supra, 422 U.S. 590, because that case involved the question of whether statements assertedly the fruits of a Fourth Amendment violation were attenuated, but note that the instant case presents additional complexities.
In Brown, the defendant was arrested without probable cause and brought to the police station for questioning. (Brown, supra, 422 U.S. at pp. 592-594.) The central issue in the case was whether the provision of Miranda warnings attenuated statements defendant made thereafter from the taint of the illegal arrest. (Id. at pp. 591-592.) The Brown court held that the warnings did not. (Id. at pp. 604-605.) Statements made during two interrogations were at issue. Applying the three factors we have outlined ante, the Brown court observed that the defendant's first statement was separated from his illegal arrest by less than two hours and there was no intervening event. (Ibid.) The second statement, which was made approximately five and a half hours after the first statement, was clearly the fruit of the first statement. (Id. at p. 612, fn. 7.) The court further reasoned that the original illegality had "a quality of purposefulness." (Id. at p. 605.) The officers had broken into the defendant's apartment, waited for him to return, arrested him, and brought him to the police station. (Id. at p. 593.) Admittedly, without probable cause, the arrest was solely for investigation and questioning. (Id. at p. 605.)
Miranda v. Arizona (1966) 384 U.S. 436 .
a. The Statements Made at the Apartment
The first Brown/Strieff/Brendlin factor, the temporal proximity, cuts heavily in favor of suppression. Although the evidence is unclear as to the exact time Baumann questioned defendant and when the questioning took place during the sequence of events, the statement was made at the apartment and thus it must have been made fairly contemporaneously with the search. Thus, it appears that here, even less time elapsed between the Fourth Amendment violation and the defendant's statements than in Brown. There was no intervening event here. The statements were not made spontaneously. (Cf. Rawlings v. Kentucky (1980) 448 U.S. 98, 108 [65 L.Ed.2d 633, 644].) Defendant was essentially confronted during the questioning with the evidence the police illegally found during the search of the hallway bedroom. Moreover, consistent with our reasoning concerning the search, we conclude the purpose and flagrancy factor cuts in favor of suppression because of the evidentiary gaps in the record.
We also note that while defendant's statements made at the apartment related to all of the marijuana found in the apartment, the marijuana found in his bedroom closet represented the overwhelming majority of that marijuana. This is not a situation where statements were made that related both to a de minimus amount of drugs obtained by illegally searching an area within the defendant's exclusive control with the vast majority of drugs found in common areas within the home. (Cf. United States v. Green (9th Cir. 1975) 523 F.2d 968, 972 [the defendant's confession was not the " 'product' " of confrontation with amphetamines and 400 pounds of marijuana seized from his bedroom illegally, because the role of that suppressed evidence in producing the defendant's confession was de minimis compared to the 880 pounds of marijuana found in the garage and the 12 pounds of marijuana found in the bedroom of the consenting cohabitant who had authority to provide consent to search the latter two areas].)
The statements defendant made at the apartment were not attenuated and should have been suppressed.
b. Statements Made to the Police at the Police Station
For the same reasons, we conclude there is an attenuation between the illegal search of the hallway bedroom closet and the marijuana found in defendant's car, we conclude that his statements at the police station were also attenuated. Regarding the temporal proximity factor, two days lapsed between the illegal search and the statements he made at the apartment. As for the intervening events factor, defendant voluntarily appeared at the police station attempting to obtain the return of the marijuana found in the apartment by presenting a newly obtained marijuana card showing he was entitled to have up to 99 marijuana plants. And he voluntarily spoke to the police as part of that effort to secure return of the marijuana. He was under no compulsion to appear at the police station and there was nothing about the officers' conduct that was coercive or otherwise made the statements he gave involuntary. He showed up and spoke to the police under his own free will.
Defendant contends that the defendant's statements at the police station were the product of a ruse that took place when the evidence was seized at the apartment two days earlier. He argues his decision to go to the police station was induced by Baumann's discussion of his medical marijuana recommendation. From that discussion defendant argues that it was implied to defendant that he could justify his possession to law enforcement. Palmore's interview, defendant asserts, was part of the same ruse. However, defendant points to no evidence in the record of the suppression hearing supporting the implication that defendant was somehow required to bring his recommendation to the police department. Again, the evidence shows he came to the police department on his own volition.
We conclude the statements defendant made at the police station were attenuated both from the primary taint of the illegal search of his bedroom closet and the statements he made to Baumann at the apartment. However, because the statements he made at the police station related primarily to the contraband illegally seized from the apartment, we will consider whether those statements prejudiced defendant in connection with his conviction on count three, charging him with possession for sale of the marijuana found in his car.
6. Harmless Error
We first consider and reject the People's argument that any error related to the failure to suppress evidence seized from the hallway bedroom closet was harmless as to count one because the amount of marijuana found elsewhere in the apartment was sufficient to prove possession of marijuana for sale. We next consider whether the marijuana that should have been suppressed and the defendant's statements made at the apartment prejudiced defendant in connection with count three. Thereafter, we consider whether the admission of statements made two days later at the police station that reference the illegally seized marijuana prejudiced defendant as to his conviction on count three.
A violation of the right to be free from unreasonable search and seizure under the Fourth Amendment is analyzed under the Chapman standard of review for potential prejudice. (People v. Moore (2011) 51 Cal.4th 1104, 1128-1129.) Chapman holds that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) Since Chapman, our high court has " 'repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' " (People v. Geier (2007) 41 Cal.4th 555, 608.) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (Ibid.; People v. Livingston (2012) 53 Cal.4th 1145, 1159.) To determine whether the People have satisfied their burden of proving the error was harmless beyond a reasonable doubt, "we examine the entire record and must reverse if there is a ' " 'reasonable probability' " ' that the error contributed to the verdict." (People v. Reese (2017) 2 Cal.5th 660, 671, italics added, citing People v. Aranda (2012) 55 Cal.4th 342, 367.)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
a. Marijuana Found in the Apartment
The People contend that any error in allowing the introduction of the marijuana found in the hallway bedroom closet was harmless because there was enough marijuana found elsewhere in the apartment to support his conviction of possession for sale beyond a reasonable doubt. We disagree. There was no testimony concerning the amount of marijuana found in the living room coat closet. Nor can we determine the total amount of marijuana found outside of the hallway bedroom by extrapolation based on the known amounts.
Palmore testified that there was a total of just over 10 pounds of usable marijuana found in the apartment. The usable marijuana about which there was testimony concerning weight was found in the ice chest and plastic tub in the hallway bedroom closet and the jars in the hallway bathroom. There were six pounds of marijuana in the ice chest and 1.88 pounds in the plastic tub, for a total of 7.88 pounds found in the hallway bedroom closet. The five-inch mason jars containing marijuana in the hallway bathroom contained a total of "just under one pound." That brings the total from the bedroom and hallway bathroom to approximately 8.88 pounds. Thus, subtracting those 8.88 pounds from the total 10 pounds found in the apartment leaves a little over one pound. Based on this math, it might be reasonable to infer that the marijuana in the grocery bag found in the living room coat closet was a little over one pound, except for the fact that the evidence does not disclose how much marijuana was found in the jar Kelley found in the hallway bedroom. This jar was described by Kelley as a mason jar and by Baumann as being made of plastic and eight inches tall. No other description was provided. The evidence does not reveal the total volume or capacity of that jar, let alone how much marijuana was contained therein. For all that can be determined by the record, a large amount of the unaccounted for pound could have been in that jar. We just do not know, and thus we cannot say beyond a reasonable doubt that the amount of marijuana found in the common areas of the apartment (hallway bathroom and living room coat closet) was sufficient to establish possession for sale.
To further complicate matters, Palmore testified that the marijuana found in the bathroom could have been possessed for personal use. Specifically, regarding the amounts in the jars found in the bathroom, Palmore said, "there were eight jars, and so an ounce is 28 grams, it's technically 28.5 I think. And the weights in the jars were . . . 21.6, 38.5 . . . 28.5, 44, 35, 26, 86, and 25 grams. So there's nothing that jumps right out to me to be weighed out amounts in that jar. I mean there's a couple that are close, but, you know, that could have been personal -- the personal use. I don't know what that was." Additionally, in defendant's statement to Palmore, he said the marijuana in the jars was what he smoked.
Accordingly, we reject the People's argument that the marijuana seized from places in the apartment other than the hallway bedroom was sufficient to prove possession for sale on count one and thus, we conclude the People have failed to establish that introduction of the marijuana found in the hallway bedroom closet was harmless beyond a reasonable doubt as to count one.
b. Marijuana Found in Defendant's Car
Independent of the evidence from the apartment that should have been suppressed, there was overwhelming evidence supporting the conclusion that defendant possessed the marijuana found in his car for the purpose of sale. When officers searched defendant's car, they found over half a pound of marijuana, two scales, and small plastic bags. Some of the marijuana found in defendant's car was packaged in a glass jar that had notations on it indicating the marijuana in that jar was being sold for $600 for two ounces. The detectives also discovered residue of marijuana and methamphetamine on the scales in the car, showing that they were in fact being utilized to weigh drugs. While it would not necessarily be unusual for a medical marijuana user purchasing marijuana from a dispensary to possess marijuana labeled with the price and weight, defendant testified he was growing his own marijuana for his personal use. And there is no logical reason for him to have indicated the weight and price of the marijuana on one of the containers. There also was no reason revealed in the record for defendant to drive around with that quantity of marijuana in his car if it was possessed solely for personal use. Moreover, the officers found $1,400 on Jerry, who testified he was holding the money for defendant. This money was broken down into denominations consistent with drug sales. Palmore testified that, in his expert opinion, defendant possessed the marijuana in the car for the purpose of sale.
Further, defendant damaged his credibility concerning his possession for personal medical use defense. During his testimony, defendant made the incredulous claim that he did not know where the marijuana in his car came from. Defendant claimed that he "had no idea" there was any marijuana in his car and that he did not know who it belonged to.
In addition to the aforementioned evidence, there were text messages on the purple Motorola phone found in the front passenger seat of defendant's car (near his new marijuana card) that revealed he was growing and selling marijuana. While these text messages were two years old, Palmore testified that because those messages took place around the time defendant said he started growing marijuana and because in his experience, people do not stop selling, those text messages indicated defendant was still in the business of selling marijuana. Furthermore, there was current text messages on Derek's phone indicating that he was engaged in selling marijuana. And there were recent text messages on Derek's phone between Derek and a phone number associated with defendant regarding marijuana sales. There was a December 20, 2012, text message from Derek to defendant's phone number saying, " 'I need dank,' " the slang term for good quality or potent marijuana. On January 3, 2013, there was a text message from defendant's phone number to Derek's phone stating, " 'How did we DN legs?' " The response from Derek's phone to defendant's phone number was "$650, you keep a pound of Purp," a reference to strains of marijuana dubbed Purple Kush or Purple Haze.
Further, there was evidence defendant gave Jerry, who did not have a medical marijuana recommendation, approximately one pound of marijuana, which was also found in the car. Defendant's furnishing of marijuana to Jerry, the large quantity of marijuana and scales in the car, the money recovered from Jerry, the old text messages on defendant's phone, the current text messages on Derek's phone, defendant's odd statement to Palmore about not selling marijuana on a "regular basis" and his attempt to explain this statement at trial as meaning he was not selling "every day" show that defendant was still in the business of selling marijuana.
Jerry testified that defendant gave him three types of marijuana in three separate bags, but defendant testified that he gave Jerry about a pound of marijuana in one bag and it was all one type.
Lastly, defendant introduced the entire recording of his interview with Palmore, some of which included statements he made that were not introduced by the prosecution during their direct examination of Palmore. During the interview, defendant revealed a financial motive for selling marijuana; he needed money to pay his child support.
We conclude that it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty on count three absent the improperly admitted evidence and thus conclude it did not contribute to the verdict as to count three. Given the evidence we have outlined, the trial court's error in denying the suppression motion as to the evidence found in the hallway bedroom closet and his statements to Baumann at the apartment was harmless beyond a reasonable doubt as to defendant's conviction on count three. Defendant concedes as much.
c. Defendant's Statements to the Police
We have concluded that defendant's statement to Palmore was attenuated from the illegally seized evidence and his statements made at the apartment, and thus the trial court did not err in denying suppression of the statements to Palmore on Fourth Amendment grounds. Some of what defendant said to Palmore that was introduced by the prosecution was relevant to both counts one and three. This included the statements defendant made concerning his marijuana cards, the amount he personally used per day, how he made money and the money recovered from Jerry. However, much of what defendant discussed with Palmore pertained only to the marijuana illegally seized from his bedroom closet. Consequently, we consider whether those portions of his statement to Palmore prejudiced defendant as to count three and conclude that they did not. The evidence we have outlined ante as to count three overwhelmingly established defendant's possession for sale of the marijuana found in his car. Thus, we conclude the parts of defendant's statement to Palmore that pertained solely to the illegally seized evidence from his bedroom closet did not contribute to the verdict as to count three.
7. Conclusion
We reverse defendant's conviction on count one, possession of marijuana for sale related to the marijuana found at the apartment, but we affirm his conviction on count three, related to the marijuana found in defendant's car two days later.
II. Lesser Included Offense
A. Background and Defendant's Contentions
At the conclusion of the evidence, the court instructed the jury on possession of marijuana for sale and the defense under the Medical Marijuana Program Act. However, neither defendant nor the prosecutor requested an instruction on the lesser included offense of simple possession of marijuana, and the court did not give this instruction sua sponte.
Defendant contends the trial court erred in failing to instruct sua sponte on simple possession of marijuana as a lesser included offense of possession of marijuana for sale. Defendant argues there was substantial evidence supporting the instruction. Because defendant had a recommendation, he argues "the jury had ample evidence on which to base a conclusion that the marijuana was not possessed for sale." Further, defendant argues the evidence in the car is "less suggestive of sales" because Jerry claimed the items in the duffle bag belonged to him and, additionally, the text messages do not demonstrate clear communication from defendant in regard to the sale of marijuana. Defendant contends this evidence supported a finding that defendant possessed the marijuana without an intent to sell it. We disagree.
B. Analysis
"[I]nstructions on a lesser included offense . . . are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) While Jerry testified the items in the duffle bag belonged to him, those items were nonetheless in a car that was registered to defendant, and Jerry stated that he obtained some marijuana from defendant. The jury could have inferred those items were utilized by defendant for the purposes of sale. As such, Jerry's claim of ownership over the duffle bag is not substantial evidence that defendant did not possess the marijuana for the purpose of sale. Indeed, Jerry's testimony does not explain the other marijuana found elsewhere in defendant's vehicle for which defendant had no explanation. And if the jury believed all the marijuana in the car was Jerry's, it would have found defendant not guilty on count three. Therefore, given the totality of the evidence, there is no substantial evidence that the lesser offense of simple possession, but not the greater offense of possession for the purpose of sales, was committed.
Furthermore, even if the trial court did err in failing to sua sponte instruct the jury on the lesser included offense of simple possession of marijuana, the error was harmless. "[I]n a noncapital case, error in failing sua sponte to instruct . . . on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 837]. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.) "Further, the Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Defendant has not established that it is reasonably probable he would have obtained a more favorable verdict with a lesser included offense instruction. As we have noted in our Chapman analysis ante, there is overwhelming evidence showing that defendant possessed the marijuana found in his car for the purpose of sale. Moreover, his incredulous denial of knowledge that there was marijuana in his car completely undercuts any notion that it was reasonably probable the jury would have convicted him of simple possession. We conclude that any error in failing to instruct on simple possession was harmless.
DISPOSITION
The judgment of conviction is reversed on count one and affirmed on count three.
s/ MURRAY, J. I concur: s/RENNER, J. Hull, J.
I concur except that I concur in the result as to Part I.
I have no disagreement with the long-standing principle recognized in many probation search cases that officers are limited to searching those areas of a residence that they reasonably believe is in the sole or joint control of the probationer.
But I must pause at the point where the majority appears to flatly hold that officers may not "enter a bedroom in a residence occupied by multiple adults to determine whether the probationer had joint authority or control over the bedroom." (Maj. Opn. at p. 25; emphasis added.) In my view, that depends on what the officers did. Looking into a room with an open door or even opening a closed door to a room to look inside to see if there is an indication that a probationer has joint or sole control of the room, cannot, unqualifiedly, be deemed an unlawful search of the room. This holding blurs the distinction between the search of a room versus merely looking into a room to determine whether there is reasonable cause to believe the probationer has control of it. I know of no authority that holds that officers must have all the information that leads them to believe, reasonably, that the room is partially or wholly in control of the probationer before they even look into the room.
If only Dick and Jane live in a home together and Dick, who is on searchable probation, works for Acme Towing Company, officers who merely look into a room and see a work shirt with "Acme Towing Company" printed on it with a sewn-on name label reading "Dick" on the bed and men's work boots on the floor, that information should be available to the officers in their determination of whether there is reason to believe Dick has some control of the room. That, by itself, is not a search.
In short, whether a search violated the Fourth Amendment depends on the totality of the circumstances surrounding the search. To the extent the majority opinion holds or suggests that briefly looking into a room without searching it to see if there are indicia of the probationer's control of the room in open view renders the search, in all cases, illegal, I disagree.
I can concur in the result here because I am in complete agreement with the majority's holding that: "The People presented no evidence upon which a finding could be based that the original officers reasonably believed Derek had any control over the hallway bedroom before those officers entered and searched. This failing is directly attributable to the [People's] failure to call a necessary witness at the preliminary hearing." (Maj. Opn. at p. 21.) Indeed, this record presents no evidence whatsoever of what the officers actually knew or did before they searched the hallway bedroom.
As to Part I of the opinion, I concur in the result.
s/HULL, J.