Opinion
A132735
05-01-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHN LUIS BLANCHARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC072261)
John Luis Blanchard appeals from convictions of possession of a firearm by a felon and possession of a destructive device entered upon his pleas of nolo contendere. He contends the trial court erred in denying his motion to suppress evidence. We affirm.
STATEMENT OF THE CASE
In an information filed on November 7, 2010, appellant was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1); possession of ammunition by a felon (§ 12316, subd. (b)(1)) (count 2); possession of a destructive device (.22-caliber ammunition) (§ 12303) (count 3); misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)); and misdemeanor possession of a burglary tool (§ 466) (count 5).
All further statutory references will be to the Penal Code unless otherwise specified.
Section 12303 was repealed, operative January 1, 2012, as part of a legislative reorganization. (Stats. 2010, ch. 711, § 4 (SB 1080). Its provisions are now found in section 18710. (Stats. 2010, ch. 711, § 6 (SB 1080).
Appellant pled not guilty to the charges and filed a motion to suppress evidence, which was denied after a hearing on June 17, 2011.
On July 18, the prosecution filed an amended information substituting "detonation cord" for ".22 caliber ammunition" in count 3. Pursuant to a plea bargain, appellant entered pleas of nolo contendere to counts 1 and 3 and the other charges were dismissed. The court suspended imposition of sentence and placed appellant on probation for three years.
Appellant filed a timely notice of appeal on July 20, 2011.
STATEMENT OF FACTS
On the afternoon of October 1, 2010, while driving in San Mateo County, Fire Battalion Chief Clayton Jolley, an expert in fire investigation, heard a dispatch for smoke investigation in the Princeton area, saw a "faint smudge" of smoke in the area and responded to the scene. He entered appellant's yard, where there was a strong smell of smoke, and contacted appellant. A fire engine arrived a minute or two later. There were "burned objects" in the area, including an amplifier and some extension cords, and a storage container toward the front of the lot had a scorch mark on its backing and burned flakes of paint coming off it. There did not appear to be a building fire but there was "obvious heat and smoke" emanating from the storage container.
Appellant opened the storage container and "light smoke" came out. There was evidence of "fairly heavy charring" on the roof and side of the container and in the area of a washer or dryer and a drill press. It appeared that the fire had been "knocked down" and appellant said he had put it out. Because of the amount of heat and burned material, however, including some "exploded containers," Jolley determined further investigation was necessary to ensure there were no smoldering materials or further hazards from the fire. Jolley testified that although he and the fire fighters had determined active extinguishing efforts were not necessary, they were required by law and policy to investigate to be sure there was no smoldering material and to understand the cause of the fire. He explained that fires can reignite after appearing to have been extinguished, that a fire cannot be deemed finally extinguished until after digging through the area for hidden smoldering material, and that a resident would not necessarily know whether he or she had fully extinguished a fire.
The fire chief and another battalion chief responded to the scene, as did deputies from the Sheriff's office, whose role was to secure the scene during the fire investigation. Fire Chief Sampson assumed control of the investigation and Jolley continued to assist. Prior to Sampson's arrival, Jolley's "working supposition," based on observations and appellant's statements, was that a propane tank appellant had left on exploded as a result of contact with combustible materials in the container. A container of black powder near the exploded propane tank had exploded, another was charred but had not exploded, and there was burned wiring and charring on the inside of the container, roof and inside of the door. There was a safe inside the container, on the floor to the left of the drill press, that appeared to be in the area where the fire originated.
Fire Chief Richard Sampson, also an expert on fire investigation, testified that he was asked to assist in the investigation at appellant's property as well as to possibly help obtain a warrant to enter an adjacent building. When he arrived, the firefighters from two engines were rolling up their hoses after having wet down the inside of the container. There was still heat coming off the fire but no flames. After being briefed by the others at the scene, Sampson proceeded to investigate the origin of the fire. He testified that this "origin and cause investigation" is required for all fires and cannot be conducted until the fire has been suppressed.
Sampson walked into the container, the roll-up door of which was up, and saw a white washer or dryer on the right hand side with the remains of an exploded propane torch on top. There was still heat inside the container. There was soot on the roof of the container and a short distance down the sides. Sampson observed a V pattern in the soot coming from the roof toward the remains of the burn on top of the washer/dryer, a pattern indicating that the origin of the fire was near the smaller part of the V with smoke rising to cause the V-shaped soot. The origin of the fire appeared to be the propane tank on top of the washer/dryer, although to definitively determine whether that was the origin it would be necessary to rule out all other potential causes by examining the container for other soot patterns and ignition sources.
On top of the washer/dryer, Sampson saw a black powder, or gun powder, container that looked like it had exploded; there was an intact can of powder on a ledge toward where the V pattern was extending out. Next to the washer/dryer was a drill press on top of a three-foot square black metal safe. Sampson saw brass colored metal shavings on the drill press, extending down onto the safe, onto the open door of the safe, and onto the ground, and saw a 12-gauge shotgun shell on the ground. The door of the safe was open about an inch and a half or two inches, enough to see it was dark inside. There was no visible evidence of fire on the safe and Sampson did not determine whether there was heat specifically coming out of the safe. While he did not see evidence of fire emanating from inside the safe, he could not tell definitively that there was no fire hazard inside when he first looked at it. For example, the appearance of the exploded propane canister led him to believe material shot out from it, meaning hot portions of the container could have landed in the container and potentially in the safe.
Sampson used a flashlight to look into the safe and saw that the metal shavings extended into a "lip" just inside. He also saw an orange colored large diameter wire. He asked the other investigators whether the container had been "searched and cleared" and, receiving no answer, stated his understanding that appellant had been arrested and had a criminal history and asked, "Why is there a shotgun shell? [¶] What's that black powder in here? What is in here? What's going on?" Appellant had been arrested at the scene for being under the influence of methamphetamine.
Sampson testified that he asked a deputy to come over, pointed out what he had observed in the container and asked if they had "cleared the safe." Explaining what he meant by this phrase, Sampson testified, "I was still feeling heat coming out of the container. I had a can of black powder that exploded at sometime, apparently, recently, from what I could see, as part of the fire. I have a round of ammo on the floor with all that heat. I was concerned there was some other explosives, or ammo, or something that could have fallen in. [¶] I've already had brass colored shavings falling in. We wanted to make sure there was nothing inside that safe or anywhere else in the container that would explode or otherwise endanger us during the investigation."
The deputy opened the safe the rest of the way as Sampson shone his flashlight inside. Sampson saw an extremely large roll of large diameter wire tubing and it occurred to him that it might be "det cord." He discussed this with the deputy, who decided to call the bomb squad. Deputy Sheriff Owen Yoch testified that Sampson brought his attention to the exploded gun powder container, the shotgun shell on the floor below the safe, and the dryer immediately next to the safe, which "looked like it had melted" and had things "melting off the top." According to Yoch, Sampson said he had seen what might be explosive "det cord" in the safe, the door of which was open an inch or two. Yoch opened the door wider, saw what looked like "det cord," took a photograph and called the bomb squad.
Sampson testified that he asked the deputies if he could talk to appellant to confirm what had been going on in the container to start the fire, to confirm he was living at that location, and to find out what else was in the container that might endanger the investigators if they continued to search. Appellant had been cited and released after his arrest and agreed to accept a ride back to his property when a deputy told him the fire marshal had questions for him. When appellant returned to the scene, Sampson questioned him for about 20 minutes. Appellant was very cooperative and the tone of the conversation was "fairly relaxed." Sampson made it clear appellant was free to leave and did not have to answer his questions, but appellant "seemed very willing to help out." At some point, Sampson asked if appellant had any firearms and appellant said he had several; he said he had a rifle but did not have a shotgun. Sampson asked about firearms because after finding the shell in the container, he wanted to know whether there was a shotgun that went with it. Appellant said the rifle was loaded and was inside the mobile home that was behind where Sampson and appellant were standing. Sampson estimated that the mobile home was about four to six feet away and its door another ten or twelve feet away.
Deputy Sheriff Mark Myers drove appellant back to the scene after he was released and was present for the conversation between appellant and Sampson. When he heard appellant say he had a loaded rifle in his mobile home, Myers asked if he could "go make the rifle safe" and appellant said "yes" and told Myers it was in a closet. Inside the mobile home, Myers found a .22-caliber rifle three or four feet inside the door, in an alcove or closet. He unloaded the rifle and ran the serial number, then ran a criminal history for appellant and found that he had a prior felony conviction. Appellant was again arrested.
DISCUSSION
At the suppression hearing, defense counsel argued that the search of the safe was for purposes of finding evidence of a crime rather than part of the fire investigation, noting that it was a deputy sheriff, not the fire chief, who opened the safe and that there was no evidence of fire emanating from the safe. The court disagreed: "Chief Sampson inquired whether anyone had cleared the safe. We can only clear a safe by opening it.
[¶] The chief was concerned about what was in the safe. The safe was entitled to be opened. . . . [T]he chief expressed some concern about what was in there for the reasons that he stated. And opening it, was perfectly appropriate; and finding what was in there was found."
"In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Miranda (1993) 17 Cal. App.4th 917, 922.) We independently review the trial court's application of the law to the facts. (People v. Alvarez, supra, 14 Cal.4th at p. 182.)" (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
"Section 1538.5, by its terms, authorizes a motion to suppress if '[t]he search or seizure without a warrant was unreasonable.' (Italics added.) 'The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists.' (People v. Curley (1970) 12 Cal. App.3d 732, 746.) Therefore, defendants must do more than merely assert that the search or seizure was without a warrant. The search or seizure must also be unreasonable; that is, it must not fall within any exception to the warrant requirement. To address properly both concepts included in section 1538.5, defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances. . . . The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. (Badillo [v. Superior Court (1956)] 46 Cal.2d [269,] 272; Stats. 1997, ch. 279, § 5.)" (People v. Williams (1999) 20 Cal.4th 119, 129-130.)
"A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. (Michigan v. Clifford (1984) 464 U.S. 287, 293; Michigan v. Tyler [(1978)] 436 U.S. [499,] 509.) The exigency justifying the warrantless entry does not end immediately when the fire is extinguished. An investigation of the fire's origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Accordingly, 'officials need no warrant to remain for "a reasonable time to investigate the cause of a blaze after it has been extinguished." [Citation.]' (Michigan v. Clifford, supra, 464 U.S. at p. 293, fn. omitted, citing Michigan v. Tyler, supra, 436 U.S. at p. 510.) Further, the interests of public safety may justify a warrantless postfire investigation where necessary to ensure against any immediate danger of future fire hazard. (Clifford, supra, at p. 297, fn. 8.) Such investigation may continue over a period of time with entry and reentry. (Id., at p. 293, fn. 3; Michigan v. Tyler, supra, 436 U.S. at p. 511.)" (People v. Avalos (1988) 203 Cal.App.3d 1517, 1521 (Avalos).)
In Avalos, after a residential fire was extinguished, firefighters checking for residual fires inside the residence found evidence of a methamphetamine laboratory in a bathroom and summoned sheriff's officers. After being shown the laboratory equipment and chemicals, a sheriff's deputy began to prepare a warrant; while he was doing so, the defendant arrived at the scene, was arrested and was found to be in possession of a bag of methamphetamine. The defendant moved to suppress, claiming the equipment was discovered as a result of an illegal entry. Avalos held the entry to fight the fire and subsequently to search for continuing fire danger was justified by exigent circumstances and the reentry less than an hour later was a continuation of the initial entry and investigation warranted by the potential hazard of an apparent methamphetamine laboratory in a house where there had just been a fire. (Avalos, supra, 203 Cal.App.3d at p. 1523.)
By contrast, in Michigan v. Clifford, many hours after a residential fire had been extinguished and firefighters and police had left the scene, the fire investigator began an investigation because the fire department suspected arson. He quickly determined the fire had started in the basement, then continued to thoroughly search the entire house. These warrantless searches were held invalid because they were not justified by any exigent circumstances. The Court explained that the "aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner's consent to inspect fire-damaged premises," such as "an immediate threat that the blaze might rekindle" or the need to " 'preserve evidence from intentional or accidental destruction.' " (Michigan v. Clifford, supra, 464 U.S. at p. 293 and fn. 4, quoting Michigan v. Tyler, supra, 436 U.S. 499, 510.) "Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases." (Michigan v. Clifford, supra, 464 U.S. at p. 293.) However, where "reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency." (Ibid.)
Michigan v. Clifford also discusses the parameters of a permissible search based upon a warrant or an exception to the warrant requirement. As relevant here, the Court explained, "The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. If, for example, the administrative search is justified by the immediate need to ensure against rekindling, the scope of the search may be no broader than reasonably necessary to achieve its end. A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal warrant upon a traditional showing of probable cause." (464 U.S. at pp. 294-295.) In applying this rule, however, the "plain-view doctrine must be applied in light of the special circumstances that frequently accompany fire damage. In searching solely to ascertain the cause, firemen customarily must remove rubble or search other areas where the cause of fires is likely to be found. An object that comes into view during such a search may be preserved without a warrant." (464 U.S. at p. 295, fn. 6.)
Appellant contends that the warrantless opening of the safe, which revealed the detonation cord, constituted an unlawful search. The cord was not in plain view, as the interior of the safe could not be seen without opening the door of the safe further than the amount it was open when Sampson came upon it. Appellant argues there were no exigent circumstances to justify opening the safe door because it was already clear from the V pattern of soot that the fire had been caused by the propane torch which was on top of the dryer, not the safe, and Sampson did not testify that the metal shavings that had fallen over the edge of the safe were hot. According to appellant, Sampson's assertion that he was investigating a continuing fire threat from inside the safe was a pretext while his true concern was to investigate possible criminal activity: He notes Sampson's testimony that he came to the scene to help investigate and possibly help "with a warrant to make entry into an adjacent building," that at the time sought to open the safe he understood that appellant had been arrested and had a criminal history, and that because of appellant's criminal background, he wondered whether appellant "was supposed to be in possession" of the shotgun shell and black powder.
As we have said, on appeal we must uphold the trial court's factual findings if supported by substantial evidence: "The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power[.]" (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410.) The trial court accepted Sampson's testimony regarding his reasons for the opening of the safe. At the time of Sampson's investigation, there was still heat from the fire inside the container. The safe was immediately next to the dryer, upon which was the exploded propane torch. Containers of what appeared to be gun powder were nearby, and a shotgun shell was on the ground. Sampson could see that material from outside the safe—the metal shavings—had fallen inside its door and testified that he could not be sure hot material from the exploding propane canister had not fallen into the safe. Accordingly, he asked whether the safe had been "cleared." Sampson testified, "I was still feeling heat coming out of the container. I had a can of black powder that exploded at sometime, apparently, recently, from what I could see, as part of the fire. I have a round of ammo on the floor with all that heat. I was concerned there was some other explosives, or ammo, or something that could have fallen in. [¶] I've already had brass colored shavings falling in. We wanted to make sure there was nothing inside that safe or anywhere else in the container that would explode or otherwise endanger us during the investigation."
Sampson testified, "[D]ue to the fact that the safe was opened; and that was a gap that anything coming out of the safe, from exploding canister of gun powder, some of that material may have come down and bounced inside the safe, I could not rule that out, no. . . . When that exploded—and looking at the canister, the way the canister, the container was, open material, it would lead me to believe that material was shot out from that. Whether it was completely consumed—depending on moisture level of how well that container had been maintained over time, there could have been portions of that container that could have flew out that were hot. I would not be able to determine whether that landed only (indicating)—so where in the container—which could also be that safe."
The trial court's determination that the safe was opened as part of the ongoing investigation into the cause of and possible continuing danger presented by the fire was clearly supported by substantial evidence: With heat from the fire still present in the container, evidence of several types of explosive material near where the fire appeared to have originated, and evidence that material from outside the safe had fallen into it, it was reasonable for Sampson to be concerned about the possibility of continuing fire danger posed by the contents of the safe. The motion to suppress was properly denied with respect to the detonation cord.
As for the rifle, appellant consented to the entry into his mobile home for purposes of securing the weapon. "The Fourth Amendment's prohibition against warrantless searches of homes does not apply when voluntary consent to the search has been given by someone authorized to do so." (People v. Rivera (2007) 41 Cal.4th 304, 311.) Appellant contends, however, that he did not consent to seizure of the rifle for use as evidence against him, and that his consent was vitiated by the pretext of a fire investigation and false pretenses employed by the deputy sheriff who asked permission to secure the weapon.
In People v. Reyes (2000) 83 Cal.App.4th 7, 9, upon which appellant relies, a narcotics agent dressed in jeans and a T-shirt came to the door of a house, asked the defendant if he owned the white truck in the alley and falsely told the defendant he had hit the truck; the defendant walked out to the alley with the undercover officer, where he was met by several officers in full raid gear who asked to speak with him and, according to their testimony, he consented to a search of his person for illegal narcotics. Reyes found that the ruse used by the police vitiated the defendant's consent to the search "because the police lure was one that almost no one, crooked or not, would refuse." (Id. at p. 10.)
By contrast, in People v. Colt (2004) 118 Cal.App.4th 1404, 1407, 1409, the court rejected the defendant's claim that the police used a ruse to lure him out of his motel room, where he was observed to be exhibiting symptoms of being under the influence of a central nervous system stimulant, arrested, and found to be in possession of methamphetamine. In that case, an officer investigating suspicion that the defendant was selling methamphetamine from his motel room knocked on the door of the room and then, "[for] officer safety," stood to the left of the door while other officers stood out of sight to the right. (Id. at p. 1407.) The defendant walked outside and looked left and right, and the officer approached and talked to him, noticing the symptoms of being under the influence. (Ibid. ) Distinguishing People v. Reyes, supra, 83 Cal.App.4th 7, Colt declined to view the officer's conduct as a ruse: "[H]ere there was no misrepresentation or false statement by an officer posing as a civilian. There was no statement at all. There was no ruse at all. Sergeant Allen simply knocked on the door and stepped out of sight for officer safety. It was not unreasonable for the officers to take precautionary self-defense measures, i.e., concealing themselves, when seeking an interview with a suspected methamphetamine seller." (118 Cal.App.4th at p. 1409.)
The present case also involved no ruse. Appellant agreed to talk with the fire chief, knowing it was the fire chief and knowing sheriff's deputies were present. He was told he was not required to answer the chief's questions but chose to do so. The fire chief asked about weapons because of the shotgun shell he saw at the scene of the fire; he explained at the hearing that he was concerned about additional items in the container that might endanger the fire investigators. We see no pretext or false pretenses in Deputy Sheriff Myers's request to secure the weapon when appellant said he had a loaded rifle in the mobile home: Appellant was aware the request was made by a deputy sheriff. Myers entered the mobile home and found the weapon with appellant's consent. No more was required.
Apart from his argument that the ruse employed to elicit his statements about the rifle vitiated his consent, appellant offers no authority for his assertion that his consent to enter the mobile home to secure the rifle did not provide consent to seize the rifle for use as evidence against him. The absence of exigent circumstances which appellant stresses—the rifle was in the mobile home and therefore not in proximity to any danger posed by the fire, and appellant did not have immediate access to it—is irrelevant where a search or seizure is authorized by consent.
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DISPOSITION
The judgment is affirmed.
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Kline, P.J.
We concur:
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Lambden, J.
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Richman, J.