Opinion
D056817 Super. Ct. No. SCD220914
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER CHRISTIAN GRABLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
After the trial court granted in part and denied in part his Penal Code section 1538.5 motion to suppress evidence, defendant Alexander Christian Grable pleaded guilty to possession of marijuana for sale (count 1, Health & Saf. Code, § 11359) and admitted the truth of an attached firearm enhancement in exchange for dismissal of the remaining counts (count 2, cultivating marijuana, Health & Saf. Code, § 11358, and count 3, possession of a controlled substance, Health & Saf. Code, § 11377, subd. (a)). The court sentenced Grable to 18 months' formal probation.
On appeal, Grable contends the trial court erred when it refused to suppress "under the fruit of the poisonous tree doctrine" (discussed post)all evidence obtained by police from Grable's apartment after the trial court determined the officers illegally searched the contents of Grable's cell phone at the time of his arrest.
As we explain, we disagree with Grable's contention because we conclude he (1) had no reasonable expectation of privacy in the place searched and (2) consented in any event to the search. We therefore affirm the trial court's order refusing to exclude all such evidence.
A. Factual Background
At approximately 11:00 p.m. in late May 2009, San Diego police officers stopped a speeding late-model silver Mercedes driven by Grable. When officers first contacted Grable, one of them observed signs suggesting Grable was operating a vehicle while under the influence: he had a relaxed face, slow speech, dilated pupils and red, bloodshot eyes. Another officer saw a jar of marijuana in plain view on the floorboard behind the driver's seat. Grable refused to consent to the search of the vehicle, told one of the officers he had a prescription for medical marijuana and offered to show the officer his card. Officers placed Grable under arrest and put him in the back of a patrol car.
Police searched the passenger compartment of the vehicle and confiscated the jar of marijuana. Significant to this appeal, police also found a cell phone belonging to Grable. The arresting officer testified during the suppression hearing that he could not recall whether he found the cell phone on Grable's person, during the search incident to the arrest, or in Grable's vehicle after Grable was handcuffed and placed in the patrol car. However, another officer present at the scene testified officers found Grable's cell phone inside the passenger compartment of Grable's vehicle.
The officers next performed an inventory search of the vehicle in preparation to impound it. During the search of the vehicle's trunk, the officers found a backpack that smelled strongly of marijuana. Inside the backpack, officers found a box, which also smelled of marijuana. Inside the box, officers found a large amount of cash. Police ultimately determined there was over $38,000 in cash inside the box.
As a result of their discovery of the large amount of cash in the backpack in Grable's vehicle, police suspected Grable was involved in drugs and/or drug sales. Police next reviewed photos and videos from the cell phone they recovered from Grable's vehicle, which included pictures of growing marijuana plants, cultivated marijuana and a short video of Grable "juggling" bags of marijuana. Police reviewed the contents of Grable's cell phone because they were looking for "[a]ny evidence of drugs or drug sales."
Grable in his brief argues that officers first looked at his cell phone and saw pictures and videos of marijuana being grown and cultivated before they searched the trunk of his vehicle and found the money inside the box. However, the arresting officer testified at the hearing that officers did not review the contents of Grable's cell phone until after they completed the inventory search of the vehicle.
Grable next told police he lived with his mother in San Carlos. However, the passenger in Grable's vehicle told police Grable lived in Fashion Valley. With Grable's permission, police then called Grable's mother from his cell phone to determine where in fact Grable lived. The arresting officer testified that based on evidence uncovered in the search of Grable's vehicle and from his cell phone, they wanted to follow up and determine whether Grable was in fact involved in other "ongoing crime."
When Grable's mother did not answer the telephone, Grable agreed police could drive him to his mother's house and even gave them permission to search that house. Once at her house, Grable's mother answered the front door in her "night clothes," denied Grable lived with her and instead told police he just kept some "stuff" there and confirmed he lived in Fashion Valley. Although she was unable to give police a specific address to her son's apartment, she was able to give police the cross-streets and a description of the building where he lived.
Based on that information, police then drove Grable to the Fashion Valley area. The arresting officer testified at the suppression hearing that on the drive over he did not discuss with Grable any of the information he saw on Grable's cell phone. According to the officer and significant to our issue here, Grable said that he did not live anywhere near the area, that none of the keys on Grable's key ring would open the apartment described by his mother but that if the key did open the door, police could go inside "and do what [they] want."
When officers located what they believed was Grable's apartment, one of the officers tried what appeared to be a house key on Grable's key ring and found it unlocked the front door. The officer did not open the door, however. The officer noticed a strong order of marijuana emanating from the apartment, returned to his patrol car where Grable waited and told Grable the key unlocked the door to what they believed was Grable's apartment. According to the officer, Grable became emotional and started to cry.
The officer next explained to Grable he could consent to the search of the apartment or refuse to the search, in which case the officers would seek to obtain a warrant. According to the officer, Grable agreed to allow officers to search the apartment as long as Grable was present during the search.
As the officers approached the apartment, Grable commented to police he had grown up in the ghetto, that "this" was the only way he knew how to make money and that he was "fucked." The officers next cleared the apartment for their own safety and then had Grable sign a consent-to-search form.
Inside the apartment, police found a "grow room" with two tent-like enclosures containing over 120 marijuana plants, lights, fans, a carbon-monoxide canister and cultivation trays. In Grable's bedroom, police found pay-owe sheets in a notebook, scales, more cultivation trays and replacement parts of the lighting equipment, a bag of psilocybin mushrooms and an unloaded shotgun with a box of ammunition. Finally, in the kitchen police found marijuana in the freezer.
While in the apartment, Grable waived his Miranda rights read by an officer and admitted he was speeding during the initial traffic stop.
Miranda v. Arizona (1966) 384 U.S. 436 .
B. Procedural Background
Grable moved to suppress the evidence police found in his apartment and all statements he made to police after his arrest pursuant to Penal Code section 1538.5, subdivision (g). At the conclusion of the suppression hearing, the trial court found the officers had reasonable suspicion to make the initial traffic stop because Grable was speeding and the officers had probable cause to arrest him for possession, and driving under the influence, of marijuana. The trial court also found the officers properly searched the passenger compartment of the vehicle incident to the arrest and the passenger compartment and trunk pursuant to an inventory search.
On appeal, Grable does not challenge the legality of his arrest or the officers' search of the passenger compartment or the trunk of his vehicle.
However, with respect to Grable's cell phone, the trial court found that although the officers could seize it, they needed a search warrant to review its contents.
The court also found the officers had reasonable suspicion to continue their investigation of Grable after they stopped him and noted:
"[T]he search heated up and the suspicion [of Grable] was fueled when [officers] found [more than] $20,000 in cash in the trunk of the car. That is what created the interest of the officers in this case. At this point, they had marijuana in the car, a huge amount of cash and a questionable address, and [thus] they had a right to continue to investigate that."
With respect to the officers' conduct in contacting Grable's mother, the trial court found "nothing untoward happened at [her] house . . . [and the officers] were within their right to investigate whether that was his address or not. [A]t that point they suspected that it probably was not. [¶] Once they got the address from the mother and they were going to the location, again . . . they weren't asking him to search any residen[ce] in Fashion Valley. They were asking him specifically about the residence or apartment at the corner of Riley and Fresno [Streets]. Ended up being two options for the residence. [Grable] disclaimed any interest in any apartment at the corner of Riley and Fresno, disclaimed any standing at that point. Even if he did have standing, though, he said go ahead and put the key in the lock. That was consent [for officers] to put the key in the lock and that's what they did.
"[The People] are not claiming exigent circumstances. . . . [Grable] consented to them putting the key in the lock and when the key went in the lock it appeared it was his apartment. At that point they smelled the marijuana. Looked like an apartment that he claimed was not his but was his. [The officers] went back to Mr. Grable and said, [']Look, you don't have to agree, but if you want you can consent to search, if not we are going to go try and get a search warrant which was all true.['] [Grable] said, [']No, go ahead and you can search['] and [he] ended up eventually signing a consent to search. I feel that was freely and voluntarily given [by Grable]. [¶] . . . [¶]
"So I am going to suppress any evidence from the cell phone otherwise I will deny the [Penal Code section] 1538[.5] motion."
Grable subsequently renewed his suppression motion and moved under Penal Code section 995 to exclude various statements to police on the ground they were obtained in violation of his Miranda rights. The trial court denied Grable relief.
This court granted the People's unopposed request to augment the record on appeal to include the transcript of this hearing.
We note Grable also does not challenge in this appeal the trial court's ruling denying his Penal Code section 995 motion.
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C. Governing Law
The standard we employ in our review of a denial of a motion to suppress evidence is well settled: In evaluating a challenge to the trial court's ruling on a motion to suppress evidence, we defer to its factual findings, whether express or implied, if they are supported by substantial evidence. (People v. Sardinas (2009) 170 Cal.App.4th 488, 493; People v. Avila (1997) 58 Cal.App.4th 1069, 1073-1074.) We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (See People v. Glaser (1995) 11 Cal.4th 354, 362; accord, People v. Memro (1995) 11 Cal.4th 786, 846.)
The Fourth Amendment bans all unreasonable searches and seizures. (United States v. Ross (1982) 456 U.S. 798, 825 .) "The ultimate standard set forth in the Fourth Amendment is reasonableness." (Cady v. Dombrowski (1973) 413 U.S. 433, 439 .) "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires the balancing of the need for the particular search against the invasion of personal rights that the search entails." (Bell v. Wolfish (1979) 441 U.S. 520, 559 .) "The inquiry is substantive in nature, and consists of a subjective and an objective component." (People v. Ayala (2000) 23 Cal.4th 225, 255.) To claim Fourth Amendment protection, the defendant must show " 'a subjective expectation of privacy that was objectively reasonable.' [Citation.]" (Ibid.)
"Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant [citation]." (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 653 .) The general rule is " 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' [Citation.]." (Arizona v. Gant (2009) _____ U.S. ____, _____ [129 S.Ct. 1710, 1716].)
D. Grable's Contentions and Validity of the Officers' Search of Grable's Cell Phone
Grable contends the trial court erred when it refused to suppress the evidence police found in his apartment and any statements he made after his arrest because all such evidence was illegally derived from the unlawful search of the contents of his cell phone and thus should have been excluded under the "fruit of the poisonous tree" doctrine. (See e.g., Wong Sun v. United States (1963) 371 U.S. 471, 484-486 [under the fruit of the poisonous tree doctrine, evidence that was obtained as a result of unlawful police conduct may have to be excluded]; see also In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.)
In early January 2011, after the parties substantially completed the briefing in the instant case, our high court decided People v. Diaz (2011) 51 Cal.4th 84, 88 (Diaz).That case involved whether the Fourth Amendment to the United States Constitution permits law enforcement, about 90 minutes after lawfully arresting a defendant and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone taken from the defendant's person incident to arrest. After reviewing the United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218 , United States v. Chadwick (1977) 433 U.S. 1 and United States v. Edwards (1974) 415 U.S. 800 , all of which involved warrantless searches incident to arrest, our high court in Diaz held the defendant's cell phone was " 'immediately associated with [defendant's] person' [citation], and that the warrantless search of the cell phone therefore was valid." (Diaz, supra, 51 Cal.4th at p. 93.) The Diaz court noted because the cell phone was immediately associated with defendant's person, police officers were " 'entitled to inspect' its contents without a warrant [citation] at the sheriff's station 90 minutes after defendant's arrest, whether or not an exigency existed." (Ibid., fn. omitted.)
We requested supplemental briefing from the parties in light of Diaz, inasmuch as the instant case also appeared to involve the legality of the search incident to arrest of the contents of a defendant's cell phone. On the one hand, the People contend that under Diaz the trial court erred in finding the officers' search of Grable's cell phone was illegal because, they contend, Grable did not challenge the search of the compartment of his vehicle where officers found the phone or the seizure of that phone once discovered. Thus, according to the People, the officers had a right under Diaz to search the contents of the cell phone at the time and place of Grable's arrest.
Grable, on the other hand, contends that under Diaz the search of the contents of his cell phone was unlawful as a search incident to his arrest because the cell phone was found in the passenger compartment of his vehicle, and not on his person, and thus the cell phone was not "immediately associated" with his person to justify a search of its contents. (See Diaz, supra, 51 Cal.4th at p. 93.)
Here, we note from the record the arresting officer testified he could not remember whether he found the cell phone on Grable's person or in the compartment of Grable's vehicle after his arrest, although another officer testified the cell phone was in fact found inside the vehicle. The trial court never made a specific finding on this issue.
In addition, we note the issue in Diaz was whether a delayed warrantless search of the text message folder of defendant's cell phone was lawful as a search incident to arrest. Indeed, the Diaz court noted the "key question [before it was] whether defendant's cell phone was 'personal property . . . immediately associated with [his] person' [citation] . . . . If it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. If it was not, then the search, because it was ' "remote in time [and] place from the arrest," ' 'cannot be justified as incident to that arrest' unless an 'exigency existe[ed].' " (Diaz, supra, 51 Cal.4th at p. 93, italics added, fn. omitted.)
Ultimately, in light of our conclusions post that Grable had no expectation of privacy in the apartment and, in any event, that he consented to the search, we deem it unnecessary to decide in this appeal whether the officers' search of the contents of Grable's cell phone immediately after his arrest violated Grable's Fourth Amendment rights. (See e.g., People v. Nottoli (Sept. 26, 2011) 2011 WL 4436188, *19 [following the arrest of defendant for being under the influence, "it was reasonable to believe that evidence relevant to that offense might be found in [defendant's] vehicle" and thus police had "unqualified authority . . . to search the passenger compartment of the vehicle and any container therein . . . , including [defendant's] cell phone."].)
E. Expectation of Privacy
A defendant may challenge the validity of a search to the extent it "infringed his [or her] own expectations of privacy under the Fourth Amendment." (People v. Boyer (2006) 38 Cal.4th 412, 445, italics added.) "The 'capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person . . . has a legitimate expectation of privacy in the invaded place.' " (People v. Rivera (2007) 41 Cal.4th 304, 308-309, fn. 1, quoting Rakas v. Illinois (1978) 439 U.S. 128, 143 .)
Here, we conclude Grable did satisfy his burden to establish a legitimate expectation of privacy in the place searched. (See People v. McPeters (1992) 2 Cal.4th 1148, 1172, overruled on another ground as stated in People v. Wallace (2008) 44 Cal.4th 1032, 1087; see also Rakas v. Illinois, supra, 439 U.S. at pp. 130-131, fn. 1.) The evidence in the record shows that when police drove Grable to the Fashion Valley area, Grable told police he did not live anywhere near the area and claimed none of the keys on his key ring would open the door of the apartment generally described by his mother. For this reason alone, we conclude the trial court did not err when it refused to exclude evidence police obtained from the search of the apartment.
F. Fruit of the Poisonous Tree Doctrine
Under this doctrine, the taint of illegal police conduct extends to evidence obtained by police by exploitation of a prior illegal search. (Wong Sun v. United States, supra, 371 U.S. at pp. 487-488.) To decide whether evidence is inadmissible as such, we inquire " 'whether, granting establishment of the [alleged] primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' [Citation.]" (Id. at p. 488.)
"There are three recognized avenues for admitting the 'fruit of a poisonous tree' despite its illegal origins: (1) The same evidence was discovered through an independent source not tainted by the poisonous tree. (2) The evidence was not found through a second untainted source but it should not be suppressed despite law enforcement's illegal acts because the same evidence would have been inevitably discovered through legal means. (The inevitable discovery rule is 'a variation upon the " 'independent source' " theory, "but it differs in that the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted source but instead whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully." [Citations.]' [Citation.] (3) The connection between the illegal source and the evidence is so attenuated it would serve no legitimate purpose to suppress the evidence. [Citation.]" (People v. Thierry (1998) 64 Cal.App.4th 176, 180.)
Assuming arguendo the officers' search of the contents of Grable's cell phone was illegal, we nonetheless conclude the fruit of the poisonous tree doctrine is inapplicable here. Instead, on this record we conclude the evidence derived from Grable's apartment, including, among other things, over 120 marijuana plants, pay-owe sheets, a bag of psilocybin mushrooms, an unloaded shotgun with a box of ammunition and any statements made by Grable to police in connection with that search, was discovered through independent sources not tainted by the alleged prior illegal conduct of police.
Indeed, even without the evidence from the cell phone the police had more than sufficient evidence to suspect Grable was involved in criminal activity, including potentially the sale and/or use of drugs. Not only did police find marijuana inside his vehicle, they also determined he was under the influence of drugs when they stopped him for speeding. In addition, during the lawful search of Grable's vehicle, police uncovered a large amount of cash in his trunk inside a backpack that smelled strongly of marijuana. Also during the traffic stop, Grable told police he lived with his mother. Grable's passenger, however, told police Grable did not live with his mother but instead lived in Fashion Valley, a fact his mother later confirmed.
Thus, even before police reviewed the contents of Grable's cell phone, the record shows they had more than sufficient independent evidence to suggest Grable was involved in criminal activity regarding the use and/or sale of drugs. Armed with this information, police then drove Grable to his mother's house and ultimately to the Fashion Valley area described by his mother where Grable presumably lived. On the drive to Fashion Valley, the record shows police did not discuss the contents of Grable's cell phone.
The trial court found that Grable consented to the search of the apartment two separate times—initially when he told officers they could "do what [they] want[ed]" if one of the keys from Grable's key ring happened to unlock the door to the apartment described by his mother, and later when Grable signed a consent-to-search form after officers informed Grable that in fact one of the keys from his key ring had unlocked an apartment in the area referenced by his mother. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 ["one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."].)
Because we conclude there is substantial evidence in the record to support the finding Grable consented to the search of his apartment, we further conclude the fruit of the poisonous tree does not warrant excluding any of the evidence police recovered from Grable's apartment or any statements Grable made to police incident to his arrest.
DISPOSITION
The order of the trial court refusing to suppress all evidence uncovered by police from Grable's apartment, and any statements made by Grable incident to his arrest, is affirmed.
BENKE, Acting P. J. WE CONCUR:
NARES, J.
IRION, J.