Opinion
F070916
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JOSEPH BABINSKI, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11903419)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Defendant and Respondent.
Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
-ooOoo-
Appellant Brian Joseph Babinski pled no contest to possession of child pornography and admitted allegations that he had a prior conviction within the meaning of the "Three Strikes" law (Pen. Code, § 667, subds. (b)-(i)). On appeal, Babinski contends the court erred when it denied his "motion to suppress." We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
Babinski incorrectly characterizes his appeal as an appeal from the denial of his motion to suppress. In actuality, he is appealing the trial court's granting of the prosecutor's motion to reinstate the complaint (§ 871.5) in this matter that the magistrate dismissed at the preliminary hearing after granting Babinski's motion to suppress. --------
FACTS
Procedural and Factual Background
On February 9, 2011, while confined at Coalinga State Hospital awaiting adjudication of a petition to have him committed as a sexually violent predator (Welf. & Inst. Code, § 6600 et. seq.), Babinski walked through a metal detector causing it to alert. During a subsequent search of a folder he was carrying, a police officer found two memory cards that were seized and examined without a warrant and one was found to contain child pornography. On June 15, 2011, when he was arrested pursuant to a warrant that was issued based on the pornography found on the memory cards, other memory cards containing child pornography were found in a sock that was sewn into his boxers.
On September 1, 2011, the Fresno County District Attorney filed a first amended complaint charging Babinski with two counts of possession of child pornography with a prior conviction and with having two prior convictions within the meaning of the Three Strikes law.
On April 26, 2012, prior to the preliminary hearing in this matter, Babinski filed a motion to suppress (§ 1538.5). In his motion, Babinski alleged that the seizure and search of the memory cards were unlawful because they occurred without a warrant, and that all materials subsequently seized from Babinski were the "fruits of the illegal search."
On May 8, 2012, the prosecutor filed a reply to the motion arguing the first memory cards were lawfully seized because: (1) at the time, Babinski was housed at the hospital pursuant to a civil commitment under Welfare and Institutions Code section 6600 and had a reduced expectation of privacy; and (2) Babinski disclaimed ownership in the memory cards.
On August 9, 2012, the motion was heard at the preliminary hearing.
On August 15, 2012, the magistrate issued an order granting Babinski's suppression motion as to both seizures of memory cards. As to the initial seizure, the court found that if the effectiveness of therapeutic treatment was the driving force behind the hospital's search policy that resulted in the seizure of the cards, the hospital had other reasonable options it could pursue that did not infringe on the Fourth Amendment rights of its patients. It also found that Babinski did not abandon the memory cards. The magistrate granted the motion as to the second seizure because the arrest warrant that resulted in that seizure was based on the illegal seizure of the first memory cards. Based on the absence of admissible evidence, the court also dismissed the underlying complaint.
On August 30, 2012, the prosecutor filed a motion for reinstatement of the complaint (§ 871.5), arguing that the search was lawful because, as a person who was housed at a state hospital pending a civil commitment as a sexually violent predator, Babinski had a lesser expectation of privacy than a private citizen. He also argued that the magistrate erred in granting the suppression motion because Babinski disclaimed ownership of the memory cards.
On October 19, 2012, the court granted the prosecutor's motion and reinstated the first amended complaint.
On December 7, 2012, Babinski was held to answer on the complaint.
On December 10, 2012, the prosecutor issued an information that reiterated the charges and allegations contained in the amended complaint.
On February 6, 2013, Babinski filed a motion to dismiss the information (§ 995), which the court denied on March 15, 2013.
On December 16, 2014, Babinski pled no contest to one count of possession of child pornography with a prior and admitted the three strikes allegation in exchange for the dismissal of the remaining count and a stipulated sentence of 25 years to life.
On January 23, 2015, the court sentenced Babinski to an indeterminate term of 25 years to life.
The Preliminary Hearing
For purposes of the motion and the hearing, the parties stipulated to the following: (1) the SD memory card seized on February 9, 2011, contained images of child pornography in violation of section 311.11, subdivision (b); (2) on June 15, 2011, Babinski was arrested pursuant to an arrest warrant that was issued based on the child pornography from the memory cards seized from Babinski on February 9, 2011; (3) during the arrest, memory cards containing child pornography in violation of section 311.11, subdivision (b) were found hidden in a sock sewn into Babinski's boxer shorts; (4) Babinski had two prior convictions for violating section 288, subdivision (a) as alleged in the complaint and a 1987 conviction for violating section 311.3, subdivision (a); and (5) a probable cause hearing had been held and Babinski was pending adjudication of a petition charging him with being a sexually violent predator (Welf. & Inst. Code, § 6600 et seq.).
During the hearing, Officer Guadalupe Sandoval from the Department of Police Services at Coalinga State Hospital testified that on February 9, 2011, he was monitoring a walk-through metal detector located at the entrance to a vocational area of the hospital. A small table where items could be set down for inspection was located next to the metal detector.
At approximately 2:45 p.m., Babinski placed an accordion folder on the floor next to the table before passing through the metal detector. When the metal detector alerted as Babinski walked through, he took something out of his right pants pocket that Officer Sandoval was unable to see and placed it in the folder. Babinski then walked through the metal detector a second time and this time the detector did not alert, which caused Sandoval to suspect that the item Babinski had pulled out of his pocket had caused the detector to alert.
Officer Sandoval grabbed his flashlight, looked in the folder and saw a folded white sheet of paper, three quarters of an inch by an inch in size. Babinski then walked up to the table and picked up the folder. Officer Sandoval asked Babinski what he had taken out of his pocket and Babinski responded that it was "nothing." Babinski picked up the folder and as he shuffled through something inside, Sandoval asked him what would have made the detector alert and what the white, folded piece of paper was. Babinski pulled out a ripped sheet of paper, showed it to Sandoval and told him that was what he pulled out. Sandoval told Babinski that was not what he saw when he looked in the folder. Babinski, however, insisted that was what he put in the folder.
After he and Babinski moved out of the way of other patients who were walking through, Sandoval asked Babinski to let him see the folder. Babinski appeared nervous and his hands were shaking as Officer Sandoval took all the papers out of the folder, placed them on the table, and looked in the folder. Sandoval did not find anything, so he grabbed the papers and as he flipped through them, a folded piece of paper fell on the table. Sandoval grabbed the paper and said, "This is what I had saw [sic] originally."
Babinski replied, "I don't know what that is. It's not mine."
Sandoval asked Babinski, "How can it not be yours if this is your folder?" Babinski responded, "That's not mine. I don't know where it came from."
Officer Sandoval examined the folded paper and saw that on the outside it had the following writing, "Videos Boy-Girl (16) from SD 2 GB to Micro HP 8GB." Inside it contained an "SD chip" and a smaller "microchip."
Officer Sandoval again asked Babinski, "What is this?"
Babinski responded, "I don't know what it is. It's not mine."
The writing on the paper made Sandoval suspect that the memory cards might contain contraband and he immediately confiscated them and booked them into evidence. Later that day, Officer Sandoval placed the memory cards in a computer and viewed their contents. Officer Sandoval knew that Babinski was a civil commitment to the hospital because he was awaiting adjudication on a petition alleging he was a sexually violent predator or had already been adjudicated a sexually violent predator.
Sergeant Duvall testified that the hospital houses sexually violent predators, Department of Corrections inmates who have mental disorders, mentally disordered offenders, and people pending adjudication on petitions for commitment as sexually violent predators. He also testified that the hospital has a policy that staff members may initiate a search if they have a reasonable suspicion "that contraband is present."
After Sergeant Duvall testified, the parties stipulated that child pornography was adverse to the treatment goals of patients at the hospital, including Babinski.
DISCUSSION
Babinski contends that as an individual detained awaiting civil commitment proceedings he was entitled to Fourth Amendment protections at least as great as those afforded to pretrial detainees. He further contends that the test of reasonableness for searches involving such detainees requires balancing the need for the particular search against the invasion of personal rights that the search entails. Babinski posits that under this test, the warrantless search of the first memory cards that contained child pornography was unreasonable because the cards were not contraband and the prosecution did not present any evidence of a hospital security regulation that "necessitated the need" to conduct the warrantless search or any other evidence to justify the search. Thus, according to Babinski, the judgment must be reversed and his plea set aside because the search and seizure of the first memory cards was unreasonable under the Fourth Amendment, as was the search and seizure of the other memory cards because they were the "fruit of the poisonous tree" (Wong Sun v. United States (1963) 371 U.S. 471, 485, 487-488.) We will find that the search and seizure of the first memory cards was lawful because Babinski disclaimed ownership in the cards and that the child pornography found on those cards justified the issuance of the arrest warrant that ultimately led to the seizure of the other cards.
" ' "An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review." ' " [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 255.)
"It is well established that a search and seizure of abandoned property is not unlawful because no one has a reasonable expectation of privacy in property that has been abandoned. The question whether property is abandoned is an issue of fact, and the court's finding must be upheld if supported by substantial evidence." (People v. Daggs (2005) 133 Cal.App.4th 361, 365.)
"[T]the intent to abandon is determined by objective factors, not the defendant's subjective intent. ' "Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation
of privacy in it at the time of the search." ' " (People v. Daggs, supra, 133 Cal.App.4th at pp. 365-366.)
When Officer Sandoval first grabbed the folded piece of paper and identified it as the item he saw in Babinski's folder, Babinski replied that he did not know what it was and that it did not belong to him. The officer then asked how it could not be his if it was in his folder. Babinski replied that it was not his and that he did not know where it came from. After opening the folded paper and discovering memory cards inside, Officer Sandoval asked Babinski what they were. Babinski again stated he did not know and that they were not his. Thus, Babinski's statements to Officer Sandoval unequivocally establish that he relinquished his interest in the memory cards and no longer retained a reasonable expectation of privacy in them because he abandoned them.
Babinski cites United States v. Mendia (9th Cir. 1984) 731 F.2d 1412, 1414 and United States v. Gonzalez (9th Cir. 1992) 979 F.2d 711, 712 for the proposition that "[w]hether property has been abandoned ... is an issue of fact reviewed for clear error." Relying on these cases, he contends that the magistrate's finding that he did not abandon the first memory cards is binding on this court because it was not clearly erroneous and was not overturned by the court when it ruled on the People's motion to reinstate the complaint. We disagree.
As noted above, under California law, the trial court's findings of fact are upheld only if supported by substantial evidence. (See, e.g. People v. Jenkins (2000) 22 Cal.4th 900, 969.) Babinski does not cite any evidence that supports the magistrate's finding that he did not abandon the first memory cards. Instead, in support of his claim that he did not abandon these cards, he asserts that he did not do other things that he believes would also have shown that he abandoned them, e.g., putting the cards on the table and walking away. However, that Babinski did not do more to fortify the conclusion that he abandoned the memory cards does not negate the clear implications of his multiple statements disclaiming ownership of them. Thus, even under the federal standard, the magistrate's finding that Babinski did not abandon the first memory cards was clearly erroneous.
Moreover, because the first search and seizure of those cards was constitutionally reasonable, the subsequent arrest of Babinski was lawful as was the search and seizure of the memory cards seized incident to that arrest. (People v. Diaz (2011) 51 Cal.4th 84, 93.) It follows that the court did not err when it granted the People's motion to reinstate the first amended complaint.
DISPOSITION
The judgment is affirmed.