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People v. Botsacos

Court of Appeals of California, Second Appellate District, Division Four.
Nov 18, 2003
B161834 (Cal. Ct. App. Nov. 18, 2003)

Opinion

B161834.

11-18-2003

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BOTSACOS, Defendant and Appellant.

Ed Tolmas for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant Christopher Botsacos appeals from a trial court order denying his motion to quash a search warrant and to suppress evidence under Penal Code section 1538.5. Following the courts order, appellant pleaded no contest to the first count charged against him, the felony of cultivating marijuana (Health & Saf. Code, § 11358), and the second count, the felony of possession of marijuana for sale (Health & Saf. Code, § 11359), was dismissed. We conclude that probable cause supported the search warrant, and that, under the circumstances, the polices entry into and securing of appellants home prior to issuance of the warrant did not require suppression of the evidence ultimately found in the home after execution of the search warrant. Accordingly, we affirm.

FACTS

On November 9, 2002 police officers were conducting a narcotics investigation in Long Beach which began at 9:00 a.m. They were watching the residence at 3470 Canehill when they saw David Pipoly leave the residence and carry a black backpack to a pickup truck and drive away. The officers followed Pipoly who drove first to a residence at 4148 Greenbriar Road in Long Beach. Pipoly parked behind a Mercury Marquis. He went into the home. About five minutes later, he left the house with his backpack and a blue trash bag. Pipoly put the backpack inside his truck and the trash bag in the truck bed. About five minutes later appellant left the same home carrying a box that he put into the trunk of the Marquis. Appellant drove away but was not followed by police.

The police followed Pipoly who drove to 4820 Hazelbrook Street. There, he threw the trash bag into a dumpster across the street. After Pipoly left, a police officer found several plants resembling marijuana in the bag. Meanwhile, Pipoly drove to appellants home at 4519 East Village Road in Long Beach, arriving there at around 1:00 p.m. Appellant was sitting in front of his home.

One of the officers saw Pipoly exit his vehicle with the backpack and walk toward and enter appellants home. He then came out of the house with the backpack. While Pipoly and appellant were on appellants driveway, two officers identified themselves and requested that Pipoly consent to a search of his pickup truck, which he gave. The police found the backpack inside the truck. The backpack was empty, but smelled of marijuana. The officer inquired about the blue trash bag which Pipoly had thrown away. Pipoly told the police that he found the trash bag in the back of his truck. He confirmed that he lived at 4820 Hazelbrook Street.

The officers requested consent to search appellants home, which he denied. He told the officers that a person was inside. Five of the officers entered appellants home out of concern that evidence may be destroyed while they obtained a search warrant. The officers announced their presence and found one person, Myrna Delossantos, in the home. She was in an upstairs bedroom. Delossantos was carrying a bucket containing water which appeared to have floating bits of marijuana leaves in it. In plain view were various items of lighting equipment and a heating system. In the adjacent bathroom there were drops of water on the carpet leading from the opened toilet, which appeared to have marijuana leaves floating on the surface. There was an odor of marijuana in the bedroom where Delossantos was found. While searching to see if anyone else was in the home, the police noticed that a shed attached to the back of the garage contained a 55-gallon drum, lighting and heating equipment.

One of the police officers who entered the home, Special Agent Cheryl Kau, prepared an affidavit for a search warrant. She wrote that based on her training and experience, she knew "that individuals involved in narcotic activities will frequently purchase . . . cardboard boxes and plastics bags for the sole purpose of concealing controlled substances and currency. . . . These items . . . are frequently placed into vehicles to further avoid detection." Kau wrote that when the two police officers on appellants driveway told appellant and Pipoly that the police had found a blue trash bag containing marijuana plants, appellant, as well as Pipoly, "became visibly nervous . . . . Due to the above observations and discovery of the marijuana plants, along with the strong likelihood that someone was inside the residence, a decision was made to enter and secure the residence pending a search warrant. It should be further noted that Agents/Detectives were concerned that individuals within the residence would attempt to destroy any evidence inside." Kau opined that the items in the bedroom and the shed were being used to grow marijuana indoors.

Pending issuance of the warrant, appellant was detained. The warrant was eventually issued at 9:07 p.m. The warrant was then executed resulting in collection of the contraband appellant challenges.

Pursuant to section 1538.5, appellant moved to quash and traverse the search warrant, and suppress all evidence seized from his person, home, car or other property locations. He based his motion on the following alternative grounds set forth in the statute: (1) that the search and seizure without a warrant was unreasonable; or (2) that the search and seizure with a warrant was unreasonable. (§ 1538, subd. (a)(1)(A) and (B).)

At the hearing on appellants section 1538.5 motion, Officer Kau testified that she believed that prior to the police entry into his home, appellant indicated to one of the officers that there was another person in his home.

Appellant testified that on the day in question, a Police Officer Guerrero approached him and Pipoly. Guerrero identified himself as a narcotics officer, and said that he wanted to speak with Pipoly. Later, addressing appellant, Officer Guerrero said, "If you dont let us enter your home, if you make us get a search warrant, we will tear your home up." Appellant responded that this threat put appellant under duress. Guerrero then said: "Okay. This is what were going to do. Were going to secure your home." They then waited for another ten minutes before Officer Kau arrived. He opined they were in front of the house approximately one half hour. It was then that the police entered the house.

Appellant further testified that the officers entered his home with their weapons drawn "in a defensive or a combat pose." They went through the front door, which was ajar. After the officers exited the home, they escorted and handcuffed appellant, Pipoly and Delossantos, and the officers sat the three in appellants television room. Although appellant was not told he was under arrest, he knew he could not leave.

Appellant further testified that, without his consent, around mid-afternoon before the search warrant was executed, his cell phone was taken from him, and Officer Guerrero copied the phones directory. Appellant accused the police of searching his home. In response, Officer Guerrero took appellant on a tour of his home. During the tour, appellant observed some unusual things, including that the lights in his bedroom closet and sauna were on, that items were "moved and disturbed" in the sauna room, and that appellants computer was turned on. Appellant also "heard the mechanical sound of the [garage] circuit breaker panel opening and closing. Then all the electricity in the home turned off, complete electrical shutdown." Appellant testified, "I could tell in the sounds and what I observed later on when I returned the next day that they had removed the seal of the electric meter and had pulled the meter and reconnected the meter."

Following appellants testimony, the court denied the motion to traverse. The court then addressed appellants motion to suppress evidence. The court stated, "Everything that went on that day and relationships among the people involved and the residences and finding of the bag with the marijuana gave them more than sufficient evidence to go in there. [¶] And the door was open, as testified to by the defendant as well. [¶] And, according to the witness, the defendant told . . . somebody that there was an individual in the house. [¶] And, therefore, they have a right to go in and get that person out for officer safety and before any evidence is . . . destroyed."

The trial court found "more than sufficient probable cause for the issuance of the warrant based on the totality of the circumstances and, more importantly, the nexus that is shown in the affidavits as to the individuals involved." The court noted that "it will be up to a jury whether or not they are going to believe the defendants version of the facts, but he has a very strong bias to say what hes saying. And based on what Ive heard so far, I tend to believe the police officer."

The trial court denied the motion to suppress, after which appellant withdrew his plea of not guilty and pleaded no contest to count 1. Count 2 was dismissed.

DISCUSSION

Essentially, appellant contends that the activity prior to the warrant being obtained was illegal. He does not argue issuance of the warrant was invalid per se, or that there was no probable cause to support it. Rather, he suggests that the information obtained to support the warrant was tainted by the entry into his house before the warrant was obtained and his illegal detention pending issuance of the warrant.

Subdivision (a)(1) of section 1538.5 authorizes a motion for the suppression of evidence obtained as a result of an unreasonable police search or seizure conducted with or without a warrant.

"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) We review the evidence in the light most favorable to the order denying suppression of the evidence. (People v. Ellis (1993) 14 Cal.App.4th 1198, 1200.)

While a warrantless entry by police into a home is presumptively unreasonable (People v. Williams (1988) 45 Cal.3d 1268, 1297, criticized on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 560-561), police may enter a home if there is probable cause to believe that contraband or evidence of a crime is on the premises "and there are `exigent circumstances justifying the warrantless or prewarrant entry." (People v. Bennett (1998) 17 Cal.4th 373, 384.) Implicit in the prosecutions burden to prove exigent circumstances "is a showing there was insufficient time to obtain a warrant. [Citations.]" (People v. Camilleri (1990) 220 Cal.App.3d 1199, 1206.) "[W]hen the police `have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. [Citations.]" (People v. Gentry (1992) 7 Cal.App.4th 1255, 1261.)

The record here contains sufficient evidence to establish a likelihood of marijuana-related activity taking place in appellants house. Notably, earlier in the day the police discovered that the trash bag disposed of by Pipoly contained marijuana plants. After Pipoly consented to a search of his truck, the backpack smelling of marijuana was discovered. Appellant was seen with Pipoly placing a box into the trunk of his car. Later, Pipoly was seen entering and leaving appellants home with the backpack. Significantly, when appellant and Pipoly were told that the trash bag containing marijuana was found, they became noticeably nervous. This evidence, received before entry into the house, was sufficient to establish probable cause that criminal activity may be afoot.

In addition to the evidence of potential illegal activity, Officer Kau testified that they had been informed another person was in the house. This was sufficient to establish the necessary exigent circumstances to enter and secure the house.

Appellant suggests that his detention was illegal. But his argument on this issue relates back to his contention that the officers improperly entered his house before the warrant was obtained. We have found that entry justified. No other legal authority or argument is presented.

DISPOSITION

The order is affirmed.

We concur: VOGEL (C.S.), P.J. EPSTEIN, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.


Summaries of

People v. Botsacos

Court of Appeals of California, Second Appellate District, Division Four.
Nov 18, 2003
B161834 (Cal. Ct. App. Nov. 18, 2003)
Case details for

People v. Botsacos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BOTSACOS, Defendant…

Court:Court of Appeals of California, Second Appellate District, Division Four.

Date published: Nov 18, 2003

Citations

B161834 (Cal. Ct. App. Nov. 18, 2003)