Opinion
D041247. D042322.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. DINO ROCCO VENTITTELLI, Defendant and Appellant. In re DINO ROCCO VENTITTELLI on Habeas Corpus.
Dino Rocco Ventittelli pleaded guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378) after his motion to suppress evidence was denied. On appeal, Ventittelli contends his motion to suppress should have been granted because the police obtained evidence in violation of his reasonable expectation of privacy and failed to comply with the knock-notice provisions of Penal Code section 844. In his petition for writ of habeas corpus, Ventittelli contends his counsel provided ineffective assistance. We affirm the judgment and deny the petition.
All statutory references are to the Penal Code unless otherwise specified.
FACTS
About 7:30 a.m. on July 2, 2002, San Diego Police Detective Michael Mendez and two other police officers went to Ventittellis apartment to serve an arrest warrant on Ventittelli and to investigate information that Ventittelli was selling methamphetamine from his apartment.
Before going to Ventittellis apartment, the detectives verified that Ventittelli was on the lease for the apartment. Additionally, between 5:00 and 6:00 a.m. Detective Mendez had met with another detective to execute a search warrant at another residence near Ventittellis apartment. The other detective had told Mendez that he had seen lights on and people moving around inside Ventittellis apartment. From his experience, Detective Mendez believed it was likely Ventittelli was still in his apartment when he and the other officers arrived at Ventittellis apartment about 7:30 a.m. because people who use drugs such as methamphetamine tend to party and then eventually "pass out"; he believed it was likely that Ventittelli had "crashed" in his own apartment. Detective Mendez also believed it was possible that Ventittelli had seen the police executing a search warrant on another apartment and was avoiding the police inside his apartment.
Ventittellis apartment was one of two apartments on the ground floor of a colonial-style building. The doors to the two apartments opened off a lobby just inside the buildings front door. The detectives entered the unlocked front door of the building and knocked on Ventittellis apartments door. After knocking several times and receiving no response, Detective Mendez went outside the building, found a bedpost and used it as a ladder to look in a transom window above the door to Ventittellis apartment. Detective Mendez testified he "wanted to make sure Mr. Ventittelli was in the residence and for officers safety [he] wanted to know what was behind that door."
The transom window was eight feet above the floor. There were no curtains or blinds on the window. All the other windows to Ventittellis apartment were covered with curtains. Through the transom window, Detective Mendez saw Ventittelli lying on a couch. He also saw several pipes on the table next to the couch and a plate containing some white substance and a baggie containing a white substance on top of a television.
Detective Mendez knocked several times on the window and identified himself as a police officer. Receiving no response, and finding the front door of the apartment unlocked, the officers entered, woke up Ventittelli, and arrested him. Detective Mendez found a methamphetamine pipe on the couch where Ventittelli had been sleeping. A search warrant was obtained. The police found, inter alia, over 36 grams of methamphetamine, 114 ecstasy pills, 9.31 grams of marijuana, a scale, packaging material, and pay/owe sheets.
DISCUSSION
I
Suppression of Evidence
Pursuant to section 844, police officers executing an arrest warrant, as a rule, must identify themselves, demand admittance, and state or explain the purpose of their demand for admittance before entering a residence without consent. (Duke v. Superior Court (1969) 1 Cal.3d 314, 319-320; People v. Zabelle (1996) 50 Cal.App.4th 1282, 1286.) In addition, police officers must have reasonable grounds for believing that the person to be arrested is inside the residence. (§ 844; People v. Wader (1993) 5 Cal.4th 610, 632-633.) "Reasonable grounds to believe the person named in the [arrest] warrant was in the house means such a state of fact as would lead a man of ordinary caution or prudence to believe, and to conscientiously entertain a strong suspicion the subject of the warrant was in the house." (People v. Cagle (1971) 21 Cal.App.3d 57, 64.) The police do not have reasonable grounds to believe a person is inside a residence if the only information they have is that the individual lives at the particular residence. (People v. Bennetto (1974) 10 Cal.3d 695, 700.) The officers, however, need not be certain the individual is in the residence. (See People v. Jacobs (1987) 43 Cal.3d 472, 479; People v. Alcorn (1993) 15 Cal.App.4th 652, 655 [defendants girlfriend made ambiguous statements as to whether the defendant was in the home or away in a nearby city].) Breaking into a house includes walking through an open doorway. (People v. Bradley (1969) 1 Cal.3d 80, 87-88.)
Failure to comply with knock and notice requirements renders a search illegal. (Duke v. Superior Court, supra, 1 Cal.3d 314, 325.) "[A]n unexcused failure to fulfill the knock and notice requirements delineated by section 844 nullifies the subsequent search and requires exclusion of the evidence obtained." (Ibid.) However, while the police are required to not only knock and identify themselves but also to announce their purpose, the courts will not generally suppress evidence based on a failure to announce their purpose; the courts view the officers as having substantially complied with the knock-notice provisions of section 844. (See People v. Franco (1986) 183 Cal.App.3d 1089, 1094.)
A.Reasonable Grounds To Believe Ventittelli Was Inside the Apartment
Ventittelli contends the search through the transom window was an illegal search violating his reasonable expectation of privacy and without the information obtained from looking through the window, the police lacked a reasonable basis for believing he was inside the apartment. Thus, he argues, the police were not entitled to enter his apartment to execute the arrest warrant. Because we conclude the officers had other sufficient information to support a reasonable belief Ventittelli was inside the apartment, we need not discuss the legality of the view through the transom window.
We note that the prosecutor during the suppression hearing in superior court conceded that the search through the transom window violated Ventittellis reasonable expectation of privacy under the Fourth Amendment but argued the search through the window was justified by the arrest warrant.
Here, the police had information that the apartment was leased to Ventittelli. Only one and one-half to two hours earlier (5:30 and 6:00 a.m.) the lights had been on and people were seen moving in Ventittellis apartment. At the time the police executed the warrant, it was still early morning (about 7:30 a.m.). Additionally, the police had information that Ventittelli was selling methamphetamine from his apartment. Based on his experience, Detective Mendez knew that people who use this drug tend to party and then "pass out." Detective Mendez reasonably concluded that since people were seen earlier in the apartment, it was likely that Ventittelli had "crashed" in his own apartment. The fact that the lights were off in the apartment when the police arrived did not tend to undermine the officers belief that Ventittelli was in the apartment since at that time of year (July 2) the sun was up, and as Detective Mendez testified, "It was pretty bright."
In sum, there were sufficient facts, even without the look through the transom window, to support a conclusion the officers had reasonable grounds for believing Ventittelli was in the apartment at the time they executed the arrest warrant.
B.Compliance With Knock-Notice Requirements
Ventittelli complains the officers did not comply with the knock-notice provisions of section 844 because they failed to identify themselves and their purpose.
The record indicates the officers knocked repeatedly on both Ventittellis door and the transom window and further that Detective Mendez identified himself when he knocked on the transom window. While it is true the officers did not announce their purpose, the police sufficiently complied with the knock-notice provisions by knocking and identifying themselves. Suppression of evidence was not required because the police failed to announce their purpose.
II
Ineffective Assistance of Counsel
In his petition for a writ of habeas corpus, Ventittelli contends his counsel provided ineffective assistance because he failed to conduct any investigation of the detective and informant who provided Detective Mendez with information that Ventittelli was selling methamphetamine from his apartment.
To establish denial of the right to effective assistance of counsel, the
"defendant must show (1) that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) that it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings." (People v. Taylor (1990) 52 Cal.3d 719, 731.)
Ventittellis argument in his petition focuses only on his counsels failure to investigate and on his counsels lack of any tactical reason for not investigating. He, however, only speculates that an investigation would have resulted in a more favorable result. For all that this record shows, an investigation might have equally likely led to evidence adverse to Ventittelli. Mere speculation is insufficient to establish prejudice or a finding that he was denied effective assistance of counsel.
DISPOSITION
The judgment is affirmed. The petition is denied.
WE CONCUR, McDONALD, J., IRION, J.