Opinion
A118598
6-26-2008
THE PEOPLE, Plaintiff and Respondent, v. JESSE OHARA, Defendant and Appellant.
Not to be Published
After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant Jesse OHara agreed to have the trial court decide the issue of his guilt or innocence on the basis of the preliminary examination transcript. The court found defendant guilty of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and a device for smoking that substance (id., § 11364, subd. (a)). At defendants request, the court then immediately suspended imposition of sentence and admitted defendant to Proposition 36 probation (Pen. Code, § 1210.1) for three years upon specified conditions.
Defendant appeals, contending that: (1) his suppression motion was erroneously denied because his arrest was not made with probable cause, and (2) the evidence was insufficient to show that he was in possession of the smoking device. We reject both contentions and affirm.
BACKGROUND
Both of defendants contentions are based upon the contents of the preliminary examination transcript. It shows the following:
Deputy Sheriff Michael Byers testified that he is a member of the Sheriffs Coordination of Probation Enforcement (COPE) unit. The duties of the unit are to "conduct random searches of probationers who are on probation in Marin County for narcotics-related offenses." Byers has had specialized training and extensive experience with controlled substances, including methamphetamine.
On January 11, 2006, as part of his COPE duties, Byers and two other officers went to 4 Pastel Court in Novato to conduct a probation search of Janet Beaudoin. A man opened the door, and told the officers Ms. Beaudoin did not live there, but at 1 Pastel Court. At 1 Pastel Court, a woman who identified herself as Ms. Beaudoins mother, told the officers that Ms. Beaudoin "often stays at 4 Pastel Court."
Byers further testified that the officers went back to 4 Pastel Court, "Knocked on the door, same subject answered the door, explained to him that I just spoke to Janets mother, Janets mother informed us that she does stay over here. He then said, `Well, shes not here right now. And we told him that did not matter, we were there to conduct a probation search of her [residence]." The officers entered. Ms. Beaudoin was not there, but they did find "articles or . . . indicia with Miss . . . Beaudoins name on it." While "we were securing the residence," Byers observed defendant in the fenced back yard of 4 Pastel Court.
Byers described the yard as "large . . . almost half an acre." In the yard was a shed, which Byers estimated was 15 feet by 20 feet, located "20 to 30 feet from the back of the residence." Defendant was standing "maybe a little bit closer to the shed" than to the house. He was holding "painting equipment" in his hands. As a standard safety procedure, Byers "asked [defendant] what his name was." "He said he did not have to tell me." "I told him as long as he was going to stay there, I needed to know who he was, otherwise he would have to leave." Defendant replied that "he didnt have to leave." Byers then said, "Well, then I need to know who you are," at which point defendant produced identification.
Byers further testified that at this point one of the other officers emerged from the shed "with a female who was holding an infant" in her arms. The woman identified herself as Alexandria Rockford, and the other officer told Byers that she said "she was on probation with a search clause."
The door to the shed was open, and Byers looked inside. Defendant was about ten feet away, not moving from where he was first observed. The interior of the shed "looked like it was used . . .for living purposes." Specifically, Byers testified that he saw "a bed, I believe it might have been about a queen size bed, there were baby items in the shed, adult clothing items. It looked as though . . . defendant and his girlfriend, significant other, were staying in that shed."
While Byers "just continued to look . . . without searching," he saw "closed circuit television equipment that was monitoring the front of the shed." This, "based on my training and experience, is extremely common . . . with methamphetamine users and/or people who are selling it." Byers also saw "some baggies with what I believed to by crystal methamphetamine residue in them." On a table that was "close to the door of the shed" Byers also saw "DMV paperwork and/or court paperwork with the name Jesse OHara on it." The paperwork was "in plain view" and "indicated 4 Pastel Court" as defendants address. Also in plain view on the table was a glass pipe "used for smoking methamphetamine."
Byers testified that at this point he asked defendant "if he either lived in the shed or had been in the shed." Defendant replied "he didnt live there nor had he been in there." Byers then "searched Jesse OHara incident to arrest. I believed that I developed enough probable cause to arrest him." That search revealed "a plastic ziplock baggie, similar to the ones that I had previously seen in the shed, with four other ziplock baggies inside of it. And each of those four baggies contained varying amounts of suspected crystal methamphetamine."
On cross-examination, Byers testified that he saw no evidence of "drug paraphernalia or drug items" from outside the shed. There was no warrant—arrest or search—for defendant. Byers further testified that the ziplock baggies found in the search of defendant incident to his arrest were actually found in defendants shoe. As he was being searched, defendant told Byers "I couldnt search him because he didnt have a Fourth waiver and . . . I didnt have a warrant for him."
For purposes of the preliminary examination, the parties agreed that the baggies seized by Byers contained 3.39 grams of methamphetamine, and that this was a usable amount.
Defendant did not testify, but Alexandria Rockford did take the stand on his behalf. She testified that she opened the door to the shed because she heard loud voices that turned out to be "Jesse," and Deputy Byers and one of the other officers ordered her to "Step out here." The other officers demanded "Whats your name? Do you have I.D.?" Rockford responded " `I do have I.D., its right inside here. And my purse was inside of this little shack. [¶] . . . [¶] I walked in—`cause he wasnt going to let me walk off on my own, I walked in with [Detective] Jones, grabbed my purse, and then we both walked out of the shack." After defendant was arrested, "thats when they started going in there [the shed]." The officers did not ask her for permission to search the shed.
Rockford testified on cross-examination that she did not live in the shed: "I dont think anyone lives in there, I think its, like, a day room." She lived in 4 Pastel Court, and was only in the shed "Because I needed a place to set my baby down to change his diaper." Rockford admitted she was on probation at the time. Defendant was her "boyfriend and the father of the baby." Defendant was near the shed because he was painting the shutters on them.
Judge Adams presided as a magistrate at the preliminary examination. Defendant made a suppression motion, which Judge Adams denied as follows:
"What we have here is a situation where the COPE team went out to—they got kind of shuffled backwards and forwards between number[] 4 and number 1 Pastel Court, looking to search the residence of Miss Beaudoin. And frankly, I think based on what they were told by Miss Beaudoin about her address, and by her mother about where Miss Beaudoin actually lived, they probably were—would be well within their rights to search both residences.
"Be that as it may, the issue presents further, then, once they get to number 4, see some activity around the shed in back, does . . . Miss Beaudoins Fourth Amendment waiver encompass that shack?
"And I dont know frankly whether it does or not, nor do I much care, because they got there and learned that Miss Rockwell [sic] stepped out of the shack with an infant in her arms, and apparently the door was open enough when she stepped out to where they could see evidence of occupancy in that shack. She told us today that she, in fact, did not live there, she told the officers that she was on probation with a search and seizure [condition], and I think they had reason to believe that she was living there, and probable cause to enter the shack based on that—Miss Beaudoins Fourth Amendment waiver.
"When they were in there, they found indicia of drug activity, and they found indicia of occupancy by Mr. OHara. [¶] Based on that, its my opinion that they had probable cause to arrest Mr. OHara and conduct the search that they conducted. [¶] Therefore, the 1538.5 is denied."
When defendant renewed his suppression motion, as authorized by Penal Code section 1538.5, subdivision (i), Judge Simmons denied it, stating:
"As I indicated, I did read the transcript, and I did note Judge Adams ruling that began on page 68. And I have to say, with respect to the 1538.5 issues, I do agree with her.
"As to the bottom of that page, 68, she talks about how the officers are conducting a search of Ms. Rock—or Rockford. There was some discussion, I dont know if its Rockford or Rockwell—steps out of the shack with an infant in her arms. The door to the shack is a little bit open. The officers look in and see certain things.
"The things that were described were indicia of occupancy, baggies, residue which might be a usable quantity if the residue was placed in one location. Theres paraphernalia. Theres a closed-circuit TV. And the lady who leaves the shed tells the officers shes on a search and seizure clause.
"I think they certainly have the right to go in there and look at those things. And ultimately, once they found indicia from the Defendant, I think they had the right to arrest him for possession of the paraphernalia as well as the residue, which the Officer felt at the time was likely a usable quantity. And then things got worse, I guess, so to speak after that.
"So I agree with her determination as to the 1538.5 motion."
Two circumstances attending the ruling deserve mention.
At the same time that she denied defendants suppression motion, Judge Simmons also denied defendants motion to set aside the information pursuant to Penal Code section 995. Defendant does not contest this ruling, only the denial of his suppression motion.
Second, the prosecutor argued to Judge Simmons that defendants suppression motion was invalid because defendant had already renewed that motion following the preliminary examination, and the motion had been denied by Judge Adams approximately two weeks earlier, thus exhausting the trial courts jurisdiction to entertain another suppression motion. (See Madril v. Superior Court (1975) 15 Cal.3d 73, 77-78.) Defendant did not deny he had already presented a renewed suppression motion, but argued it was in effect a nullity because it was denied by the same judge who denied the motion at the preliminary examination. Defendants argument was that Penal Code section 1538.5 contemplates that the renewed motion will receive an independent look, which is obviously negated if the same judge is reviewing his or her own prior decision. Without ruling on the prosecutors argument, Judge Simmons stated she would "affirm" Judge Adamss rulings. The Attorney General has elected not to reiterate the prosecutors jurisdictional argument, but to defend Judge Simmonss ruling on the merits.
The parties then agreed to submit to a modified version of the "slow plea" procedure authorized by Bunnell v. Superior Court (1975) 13 Cal.3d 592, thus allowing Judge Dufficy to decide the issue of defendants guilt or innocence on the basis of the preliminary hearing transcript. Judge Dufficy, who had already read the transcript, found defendant guilty of the two charges. Defendants counsel thereupon stated: "Your Honor, waive time for sentence. No legal cause. Your Honor, hes eligible for Prop 36. Wed ask that he be sentenced immediately." There being no objection from the prosecution, Judge Dufficy obliged.
In addition to the preliminary examination transcript, Judge Dufficy also considered a copy of Deputy Byerss written report of the incident.
Defendant filed a timely notice of appeal three weeks later.
DISCUSSION
I
Defendant argues that his suppression motion should have been granted by Judge Simmons because Deputy Byers had, "at most . . . only a reasonable suspicion that criminal activity was afoot." And, defendant goes on, while such a reasonable suspicion would have empowered Deputy Byers to detain defendant, it was not sufficient to amount to probable cause to arrest, and thus be authorized to undertake a search incident to that arrest. We disagree.
Defendants contention that his suppression motion was erroneously denied is subject to well-established rules of review. As the trier of fact, the trial court in ruling on a motion to suppress evidence is vested with the power to evaluate the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw factual inferences. In reviewing the trial courts ruling, we examine the record in the light most favorable to the People as respondent, deferring to the trial courts express and implied findings when supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.)
The substantive legal principle is equally familiar. "`[Probable c]ause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 185.) The concept of probable cause is flexible, drawing substance from each particular factual setting. (Illinois v. Gates (1983) 462 U.S. 213, 232 (Gates).) "[P]robable cause requires only a . . . substantial chance . . . ." (Id. at p. 244, fn. 13.)
Defendant does not challenge a number of key facts. He does not dispute either the officers good faith or their legal authority to conduct a warrantless search of Ms. Beaudoins residence pursuant to the search condition of her probation. Nor does defendant dispute that the officers were thus entitled to search 4 Pastel Court once they had reasonable assurance, from Ms. Beaudoins mother, that she often spent time at that address. Further, defendant does not dispute that the officers authority to search 4 Pastel Court would extend to the shed in the enclosed backyard of that address. Finally, defendant does not challenge that Ms. Rockford voluntarily opened the front door of the shed, or that the officers could thereafter readily observe the interior of the shed. In short, defendant is conceding that the officers observations were the result of their being where they had a right to be. (See People v. Camacho (2000) 23 Cal.4th 824, 831-833, citing California v. Ciraolo (1986) 476 U.S. 207, 213 & Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634.)
In sum, defendant does not dispute that Deputy Byers was accurately recounting what was truly in plain sight inside the shed. Among those things were the security system, the pipe and "some baggies with what I believed to be crystal methamphetamine residue in them." Deputy Byers was entitled to draw upon his training and experience to discern criminality in what might otherwise appear to be innocent possession. (United States v. Ortiz (1975) 422 U.S. 891, 897; Wimberly v. Superior Court (1976) 16 Cal.3d 557, 565; Cunha v. Superior Court (1970) 2 Cal.3d 352, 359.) Having properly concluded that these objects were in fact contraband, Byers was authorized to seize them at once. (Washington v. Chrisman (1982) 455 U.S. 1, 5-6; Payton v. New York (1980) 445 U.S. 573, 586-587; In re Arturo D. (2002) 27 Cal.4th 60, 83-84.) Defendant concedes that the officers had "reasonable grounds to believe that criminal activity was afoot."
The record discloses an ample basis for defendants arrest. Although the officers initially had a valid basis for assuming Ms. Beaudoin lived in, or at least periodically stayed at, 4 Pastel Court, the shed is an altogether different matter. Byerss look inside established that the shed was not used for storing tools, but rather was given over to human habitation. The presence of Ms. Rockford and the baby would only confirm that impression. Moreover, it would plant in reasonable minds the very clear idea that she and the baby were the sheds current inhabitants.
And there an equally sound basis for concluding that defendant was a third inhabitant of the shed. Most important was the correspondence addressed to defendant. The fact that it was inside the shed would naturally lead one to deduce that it was defendant who put it there. Defendants recalcitrant attitude and reluctance to leave the area might be put down to natural cussedness in the face of authority, but it is just as plausible to construe it as his entirely understandable inclination not to abandon his girlfriend and his child at a time of vulnerability. That also tied him to the shed. So did the fact that the closed-circuit security system was in operation, for presumably it was turned on by someone who remained in the close vicinity. Finally, defendant did not appear to be a mere bystander. Instead, he was in a way asserting dominion over the shed by virtue of his performing the domestic chore of painting its shutters.
Defendant argues that what the officers should have done is detained him, questioned him and "others," or "performed "a presumptive test on the residue in the baggies to confirm that it was in fact methamphetamine, " all "in order to ascertain to whom the suspected narcotics belonged." That the officers may have gathered more proof is not the test: Defendant is demanding more certainty than the process is intended to provide. " `In dealing with probable cause, . . . as the very name implies, we deal with probabilities. " (Gates, supra, 462 U.S. 213, 231, quoting Brinegar v. United States (1949) 338 U.S. 160, 175.) "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity . . . ." (Gates, supra, at p. 244, fn. 13.) " `The process does not deal with hard certainties, but with probabilities. " (Id. at p. 231.)
In Hoffa v. United States (1966) 385 U.S. 293, 310, the United States Supreme Court stated a truism: "There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect . . . . Law enforcement officers are under no constitutional duty to call a halt to an investigation the moment they have the minimum evidence to establish probable cause . . . ." (Fn. omitted.) Defendant is futilely arguing for the converse of this truism. " `"The substance of all the definitions of probable cause is reasonable ground for belief of guilt," and that belief must be `particularized with respect to the person to be . . . seized. " (People v. Celis (2004) 33 Cal.4th 667, 673, quoting Maryland v. Pringle (2003) 540 U.S. 366, 371.) We agree with Judge Simmons (and Judge Adams) that Deputy Byers satisfied this standard when he arrested defendant. At the time he arrested defendant, Deputy Byers had at least a "substantial chance" that defendant was connected to a criminal offense. (See Illinois v. Gates, supra, 462 U.S. 213, 244, fn. 13.)
II
"Unlawful possession . . . is established by proof that the defendant had, among other things, physical or constructive possession of the contraband. [Citations.] [¶] . . . `The accused has constructive possession when he maintains control or a right to control the contraband. [Citation.] `Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control [citation] or which is subject to the joint dominion and control of the accused and another [citations]." (People v. Francis (1969) 71 Cal.2d 66, 71.) Possession may be shown by circumstantial evidence. (People v. Martin (2001) 25 Cal.4th 1180, 1184.)
Defendants attack on the sufficiency of the evidence to support his conviction for the pipe is exceptionally precise. He states that he "only addresses the question of whether the glass pipe was in his constructive possession at or near the time of his arrest. As Detective Byers noted in his police report,` Rockford was in the shed at the time we located here and therefore, the items in the shed were under her control. . . . [G]iven the fact that appellant was outside the shed at all times when the police were at the 4 Pastel Street residence, no plausible argument exists that the pipe in question was under his dominion or control during that time. Nor did the prosecution introduce any forensic (or even anecdotal) evidence that appellant had recently been in possession of the pipe before the detectives arrived on the scene."
Defendant overemphasizes a concept of spatial proximity, and implicitly argues that constructive possession is limited to some sort of zone akin to the accuseds "immediate presence." He is unable to cite any authority recognizing such a restriction. The reason for this paucity is, we think, obvious. The logic of defendants argument would mean that he had constructive possession of nothing in the shed. If accepted, it would gravely reduce the utility—indeed, even the existence of—the concepts of constructive possession and joint possession. We decline to take such a radical step.
As shown in part I, ante, there is a substantial circumstantial basis for linking defendant to the shed and its contents. It is certainly reasonable to conclude that if defendant and Ms. Rockford were living in the shed, personal items found in the shed belonged to them. Moreover, the presence of usable amounts of methamphetamine on defendant links him to the instrument for consuming that substance. (See People v. Palaschak (1995) 9 Cal.4th 1236, 1240, citing People v. Fein (1971) 4 Cal.3d 747, 754.) Thus, there is ample substantial evidence, circumstantial though it may be, for a rational trier of fact to conclude that defendant possessed the contraband pipe. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" ` "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." "].)
DISPOSITION
The order of probation is affirmed.
We concur:
Kline, P.J.
Lambden, J.