Opinion
B293149
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. HUBER CISNEROS, Defendant and Appellant.
Dejan M. Gantar and Julie Caleca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA461661) APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Reversed. Dejan M. Gantar and Julie Caleca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Huber Cisneros appeals from a judgment of conviction entered after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and unlawful possession of ammunition (id., § 30305, subd. (a)(1)). Cisneros contends the trial court erred in denying his suppression motion, because the gun and ammunition were the fruits of an illegal search and seizure. He also challenges the court's failure to conduct an Evidence Code section 352 analysis before admitting certain prior convictions for impeachment purposes; its denial of his Pitchess motion as to two of the four arresting officers; and its failure to conduct a hearing on his ability to pay before imposing a restitution fine and court assessments. We reverse on the ground the trial court erred in denying the suppression motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Hearing on the Suppression Motion
Because the sole issue we address on appeal relates to the suppression motion, we discuss the evidence presented in the hearing on that motion, rather than the evidence presented at trial. (See People v. Strider (2009) 177 Cal.App.4th 1393, 1396, fn. 1.)
Los Angeles Police Department Officer Anthony Cabriales was the only witness to testify at the suppression hearing. Officer Cabriales stated that he and his partner were on patrol between about 7:00 and 7:30 p.m. on October 4, 2017. The officers were in uniform but in an unmarked car. While driving down East 52nd Street, Officer Cabriales saw Cisneros. Cisneros was standing in a residential driveway, about 10 feet in from the sidewalk, near the front porch of a house. The house was enclosed by a fence, and Cisneros was behind the fence separating the house and yard from the sidewalk. The gate in the fence permitting access to the driveway was open.
The officer had never seen Cisneros before. The officer was familiar with the house, because he had made a firearms arrest there about a week earlier, following a foot pursuit from the public sidewalk in front of the driveway to the back of the residence. The person arrested was not connected to the house; he just ran onto the property. The officer knew of no connection between the person he previously arrested and Cisneros.
When Officer Cabriales made eye contact with Cisneros, Cisneros "looked in [the officer's] direction and immediately started back-stepping, walking backwards into this property while simultaneously clutching his waistband area, consistent with securing an article on his waistband." The officer explained that he had seen this type of movement before: "It's a very specific behavior when individuals are attempting to secure a firearm, secure it in a waistband. They take whichever dominant hand in a pistol-grip fashion and clutch their waistband."
After taking several steps, and as Officer Cabriales was getting out of his police car, Cisneros turned and began running toward the backyard, still clutching his waistband. Officer Cabriales ran after Cisneros. The officer did not activate any lights or sirens before he got out of the car and began chasing Cisneros. He "believe[d he] yelled to stop," but did not identify himself as a police officer.
Cisneros ran through the gate in the wooden fence that separated the backyard from the front of the property, and he closed the gate behind him. Officer Cabriales "breached the gate with [his] shoulder," causing it to open. By this point, another officer from a separate patrol car (Officer Bojorquez) had joined Officer Cabriales in the pursuit. Once in the backyard, Officer Cabriales saw "a black metal firearm magazine" fall from Cisneros's pocket. Cisneros then entered the trailer. Officer Cabriales identified himself and ordered Cisneros out of the trailer.
Cisneros came out, and the officers detained him pending a concealed weapon investigation. With the trailer door open, Officer Cabriales could see inside the trailer; he saw a semi-automatic pistol on the floor of the trailer, several feet from the door. Officers Cabriales and Bojorquez then conducted a protective sweep of the trailer. They discovered an additional loaded, high capacity magazine on the bed.
B. The Court's Ruling on the Motion To Suppress
Before counsel argued, the court "set the premise for the argument," namely that "Cisneros was on private property the entire time the incident happened." The prosecutor then set forth the People's position that when Cisneros began running toward the backyard, there was "reasonable suspicion to believe that Mr. Cisneros has a firearm on him and that there is something—either Mr. Cisneros is not lawfully in possession of the firearm or that the firearm itself is one that cannot be lawfully possessed, but that there is something—that Mr. Cisneros is both armed and doesn't want the police to catch up with him and to see the gun."
Defense counsel responded that "a concealed weapons crime, a crime they believed that they had a reasonable suspicion had occurred, . . . is a crime the defense believes cannot be committed under the case law under this set of facts." Defense counsel also did not "think that the choice of this location was random. . . . They said they'd just found a gun the week before. They were going to shake down the location."
The trial court noted that it appeared the defense was making an argument under People v. Strider, supra, 177 Cal.App.4th 1393 "that, since Mr. Cisneros was on private property, the police did not have [a] reasonable suspicion of criminal activity since the officer did not testify that he knew [Cisneros] had a felony conviction." Defense counsel agreed, adding a second argument that the police officers pulled up in a black car at night, did not identify themselves, and began running toward Cisneros. "And so him fleeing [from] someone chasing him up his driveway at night is a completely reasonable action and should not be used as the basis to further bolster a contention that there is reasonable suspicion that he was engaged in criminal conduct."
In Strider, officers on routine patrol observed the defendant in a fenced front yard with one of the gates open make eye contact with officers, turn around, and quickly walk towards the home's front door. As the defendant turned, an officer observed the butt of a handgun protruding from the defendant's pants pocket. Officers pursued the defendant inside the house, where they recovered the handgun and cocaine. (People v. Strider, supra, 177 Cal.App.4th at pp. 1396-1397.) The court found officers lacked a reasonable suspicion that criminal activity was occurring, and concluded the defendant's detention as well as the officers' warrantless, uninvited entry into the house was unreasonable under the Fourth Amendment. (Id. at p. 1408.)
In ruling, the trial court found Officer Cabriales to be credible. It found "the seizure did not occur until [Cisneros] came out of the trailer, when he was no longer free to leave," citing In re Christopher B. (1990) 219 Cal.App.3d 455 and People v. Souza (1994) 9 Cal.4th 224. At that point, the evidence showed: "One, [Cisneros] grabbed his waistband area upon making eye contact with the officer, an act consistent with suspects later found to possess firearms; [t]wo, [Cisneros] turned and took flight into the backyard area, signaling perhaps he was engaged in illegal activity"; and "[t]hree, the defendant dropped a loaded magazine on the ground as he ran towards the trailer."
The court stated that "[u]nder Terry v. Ohio [(1968) 392 U.S. 1, 24 [88 S.Ct. 1868, 20 L.Ed.2d 889]], the touchstone of reasonableness for search and seizure without probable cause is the presence of specific articulable facts that reasonably warrant the intrusion of personal liberty and privacy. Here such . . . specific and articulable facts exist. The specific facts Officer Cabriales articulated establish a reasonable suspicion that [Cisneros] may have possessed a firearm illegally. The illegal possession of a firearm is not limited to carrying a concealed or loaded firearm, which both require an element of the offense that the gun be carried in a public place." Given this set of articulable facts, the court found that the detention was reasonable, and denied the motion to suppress.
C. Trial and Judgment
The matter then proceeded to trial. In addition to testimony about the discovery of the firearms and ammunition, the People introduced evidence that Cisneros had a prior felony conviction. In connection with that prior conviction, a court had ordered that he not own, purchase, receive, or possess a firearm.
Cisneros testified in his defense. He acknowledged his prior convictions, but disputed the officers' account of the events leading to his arrest, and asserted the officers planted the gun and magazine because they were out to get him.
After the jury found Cisneros guilty on both counts, the trial court sentenced Cisneros to three years and eight months in county jail. Cisneros timely appealed.
DISCUSSION
A. Standard of Review
" 'In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.' [Citation.]" (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223; accord, People v. Ayala (2000) 23 Cal.4th 225, 255.)
B. Standards Governing Police Contacts with Individuals
"Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821; accord, Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819.)
1. Consensual Encounters
As to the first of these, a police "officer may approach a person in a public place and ask if the person is willing to answer questions. If the person voluntarily answers, those responses, and the officer's observations, are admissible in a criminal prosecution. [Citations.] Such consensual encounters present no constitutional concerns and do not require justification. [Citation.]" (People v. Brown (2015) 61 Cal.4th 968, 974; accord, People v. Rivera (2007) 41 Cal.4th 304, 309.)
Consensual encounters may occur in private as well as public spaces. As noted in People v. Rivera, supra, 41 Cal.4th at page 309: "Consensual encounters may also take place at the doorway of a home. . . . 'Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.' [Citation.] This view ' "has now become a firmly-rooted notion in Fourth Amendment jurisprudence." ' [Citation.]" (Ibid.) A consensual encounter of this type "require[s] no articulable suspicion of criminal activity." (Ibid.; see also People v. Lujano (2014) 229 Cal.App.4th 175, 183-184 [police may open front gate and enter driveway to initiate a consensual encounter].)
In distinguishing consensual encounters from more restrictive contacts, courts have explained, that " '[a]s long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual . . . .' [Citation.] 'In determining whether a reasonable person would have believed he or she was free to leave or end the encounter, a court must take into account the totality of the circumstances from the perspective of a reasonable person in the defendant's position.' [Citation.]" (People v. Kidd (2019) 36 Cal.App.5th 12, 20-21.)
2. Detentions
A detention occurs within the meaning of the Fourth Amendment when an officer, by means of physical force or show of authority, in some manner temporarily restrains the individual's liberty. (Brendlin v. California (2007) 551 U.S. 249, 254 [127 S.Ct. 2400, 168 L.Ed.2d 132]; People v. Mendoza (2011) 52 Cal.4th 1056, 1081.) " '[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.' [Citation.] 'The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]' [Citation.]" (People v. Walker (2012) 210 Cal.App.4th 1372, 1381-1382, fn. omitted; accord, People v. Flores (2019) 38 Cal.App.5th 617, 627; People v. Hernandez (2008) 45 Cal.4th 295, 299.)
" 'Although an officer's reliance on a mere " 'hunch' " is insufficient to justify a [detention] [citation], the likelihood of criminal activity need not rise to the level required for probable cause . . . .' [Citation.]" (People v. Flores, supra, 38 Cal.App.5th at p. 628.) To determine the lawfulness of a detention, we "look at the ' "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing.' [Citations.]" (People v. Walker, supra, 210 Cal.App.4th at p. 1382, quoting United States v. Arvizu (2002) 534 U.S. 266, 273 [122 S.Ct. 744, 151 L.Ed.2d 740].)
However, "the exception to the warrant requirement for investigative detentions for the purpose of investigating possible criminal activity . . . 'does not apply to in-home searches and seizures.' [Citation.]" (People v. Lujano, supra, 229 Cal.App.4th at pp. 182-183.) " '[W]hen it comes to the Fourth Amendment, the home is first among equals.' [Citation.] 'At the Amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." ' [Citation.] To give full practical effect to that right, the [United States Supreme] Court considers curtilage—'the area "immediately surrounding and associated with the home" '—to be ' "part of the home itself for Fourth Amendment purposes." ' [Citation.] 'The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.' [Citation.]" (Collins v. Virginia (2018) ___ U.S. ___, ___ [138 S.Ct. 1663, 1670, 201 L.Ed.2d 9].)
3. Arrests or Searches Within a Home
Warrantless entry into a home for the purpose of gathering evidence or making an arrest requires probable cause justifying the arrest or search, and exigent circumstances excusing the Fourth Amendment's warrant requirement. (Collins v. Virginia, supra, 138 S.Ct. at p. 1672; Brigham City v. Stuart (2006) 547 U.S. 398, 403; People v. Lujano, supra, 229 Cal.App.4th at pp. 182-183.) This requirement extends to areas within the curtilage of the home to which public access is limited, and in which there is a reasonable expectation of privacy. (Collins v. Virginia, supra, at p. 1670; Florida v. Jardines (2013) 569 U.S. 1, 6 [133 S.Ct. 1409, 185 L.Ed.2d 495]; see also People v. Lieng (2010) 190 Cal.App.4th 1213, 1222.)
" 'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. [Citation.] "[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts . . . ." [Citation.] It is incapable of precise definition. [Citation.] " 'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' " and that belief must be "particularized with respect to the person to be . . . seized." ' [Citation.]" (People v. Lujano, supra, 229 Cal.App.4th at p. 183.)
"Entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by the imminent destruction of evidence or other factors." (People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12.) Exigent circumstances "means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (People v. Ramey (1976) 16 Cal.3d 263, 276.)
C. Analysis
The People argue the warrantless search at issue here did not violate Cisneros's Fourth Amendment rights because officers were permitted to enter the driveway to initiate a consensual encounter, and alternatively because officers had sufficient specific and articulable facts to suspect that Cisneros was involved in criminal activity and thus to detain him. We disagree.
As discussed above, Officer Cabriales was permitted to enter the publicly-accessible portion of the property on which Cisneros was standing to initiate a consensual encounter. That being said, "[w]hile law enforcement officers need not 'shield their eyes' when passing by the home 'on public thoroughfares,' [citation], an officer's leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment's protected areas." (Florida v. Jardines, supra, 569 U.S. at p. 7.) While the open gate in the driveway permitted officers to enter the property, "wait briefly to be received, and then (absent invitation to linger longer) leave" (id. at p. 8), it did not authorize police to further investigate while on the property—particularly when the occupant (here, Cisneros) indicated no interest in speaking with officers (id. at p. 11). As the United States Supreme Court recently clarified, "[w]hen a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. [Citation.] Such conduct thus is presumptively unreasonable absent a warrant." (Collins v. Virginia, supra, 138 S.Ct. at p. 1670.)
Nor was the purported existence of reasonable suspicion for an investigative detention based on Officer Cabriales's observations of Cisneros in the front yard sufficient. The officer's "ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant for the purpose of conducting a search to obtain information not otherwise accessible." (Collins v. Virginia, supra, 138 S.Ct. at p. 1675.) Cisneros was within the curtilage of the home, and thus the home itself, during the entire sequence of events. When police first approached him, he was near the porch. "While the boundaries of the curtilage are generally 'clearly marked,' the 'conception defining the curtilage' is at any rate familiar enough that it is 'easily understood from our daily experience.' [Citation.] Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.' [Citation.]" (Florida v. Jardines, supra, 569 U.S. at p. 7.)
Moreover, once Cisneros retreated to the fenced backyard, the officers physically intruded into that backyard, forcing open a closed gate, with the intent to investigate further and gather evidence. This area was not open to the public, nor was the public implicitly invited or permitted to enter the backyard. Given the lack of a warrant, the officers' continued presence in the curtilage was permissible under the Fourth Amendment only if there was probable cause to conduct a search (or to arrest Cisneros), and exigent circumstances at the point in time they forced open the back gate. (E.g., People v. Lujano, supra, 229 Cal.App.4th at pp. 182-183 ["the exception to the warrant requirement for investigative detentions for the purpose of investigating possible criminal activity . . . 'does not apply to in-home searches and seizures' "].) Neither existed.
There was not probable cause to arrest Cisneros, or to search him or the curtilage, based on the facts available to the officers before they entered the backyard. Cisneros was inside a fence on his own property early in the evening. The officers were not responding to a call, or looking for a suspect, and Cisneros was not observed doing anything suggesting he did not live at the home or was there for an improper purpose. While we assume Officer Cabriales had probable cause to believe Cisneros had a gun in his shorts, that is not the end of the inquiry. The fact that a person with no connection to the property or its occupants ran onto the property the week before and was arrested was not particularly informative. Officer Cabriales had no information that Cisneros was a felon or otherwise prohibited from having a firearm while on his own private property. Nor did anything about Cisneros grabbing at his waistband suggest the firearm itself was illegal (such as a machine gun or an illegally modified weapon).
The only thing that suggested there was something illegal about the gun or Cisneros's possession of it was his flight from his own front yard into his own backyard. Although flight from an officer is properly considered, "[n]o single fact—[including] for instance, flight from approaching police—can be indicative in all detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an area's reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity." (People v. Souza, supra, 9 Cal.4th at p. 239, italics omitted.) Here, the additional factors mentioned in Souza are absent. There was no evidence the home was in a high crime area, Cisneros was standing near the front porch instead of somewhere suspicious, and it was early in the evening (as opposed to the middle of the night). Accordingly, flight alone did not demonstrate probable cause for an arrest or search, or exigent circumstances justifying entry into the enclosed backyard. To conclude otherwise would erase the requirement of probable cause under the guise of exigent circumstances. To give another example, imagine someone quickly turning the other way inside his or her house after making eye contact through an open window with police on the street performing routine patrol, combined with police observation about something appearing to be concealed on the person that only under certain circumstances would be felonious. Standing alone, that individual's flight does not suffice for law enforcement to infer the possession of that object is illegal because the person is running out of the line of sight, and thus justify a warrantless entry into the person's residence based on exigent circumstances.
While Officer Cabriales saw a firearm magazine fall from Cisneros's pocket, that observation occurred after the officer forced his way into the backyard, and thus cannot be considered in determining the existence of reasonable suspicion, probable cause, or exigent circumstances at the time officers intruded into that part of the curtilage.
Because the totality of circumstances did not justify the officers' warrantless entry into the backyard, the firearm and magazines recovered in the backyard and trailer should have been suppressed. The trial court therefore erred in denying Cisneros's suppression motion. (Robey v. Superior Court, supra, 56 Cal.4th at p. 1223.) In light of this conclusion, we need not address the remainder of Cisneros's contentions on appeal.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
JOHNSON, Acting P. J.
BENDIX, J.