Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F08024
SCOTLAND , P.J.
A jury convicted defendant Edward Charles Caston of possessing a firearm as a convicted felon and possessing a short-barreled shotgun, and found that he had three prior serious felony convictions within the meaning of the “three strikes law.” He was sentenced to state prison for two concurrent terms of 25 years to life.
On appeal, defendant contends that the trial court erred by denying his motion to suppress the firearms and related evidence as fruits of an unlawful prior search of the place where that evidence was found. We shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
Defendant’s motion to suppress evidence was heard and denied at the preliminary examination. The motion was renewed in the superior court. (Pen. Code, § 1538.5, subd. (i).) The renewed motion was based on the transcript of the preliminary examination and on a motion for judicial notice of a magistrate’s written ruling granting a suppression motion in a prior case. (Sacramento Superior Court Case No. 03F10971.) Therefore, the superior court evaluated two searches, a December 2003 search in case No. 03F10971 and the September 2004 search in this case. We review the ruling of the superior court.
The Prior Search in December 2003
Detectives Mayes and Ponce went to a Fifth Avenue residence to arrest Candace Farr on an arrest warrant. In the process, Ponce went into a bedroom, found defendant there, and escorted him to the living room. Mayes questioned defendant about his identity while Ponce made a second sweep of the bedroom. Defendant identified himself as John Johnson, “supplied a number of different social security numbers, each time changing the numbers,” and said he “never had” a driver’s license or an identification card.
Believing that defendant was hiding something or concealing his real identity, Detective Mayes entered the name “John Johnson” in his law enforcement computer, but defendant’s photograph did not come up in the Department of Motor Vehicles (DMV) database under that name. Mayes so advised Detective Ponce, who went into the bedroom a third time to search for identification. Ponce did not see any weapons and did not find any identification.
Detective Mayes then made a fourth entry into the bedroom, again to find information regarding defendant’s identity. This time, he discovered a nightstand sandwiched between a bunk bed and a wall. A .25 caliber handgun with live ammunition in the chamber was in the nightstand. Under the covers of the bed on which defendant had been found, Mayes found a .357 caliber handgun, also loaded with live ammunition.
Detective Mayes advised Detective Ponce of the weapons, and Ponce made a fifth entry into the room to observe the weapons where they were found. Defendant was arrested and, while on the ride to jail for booking, he advised the detectives of his true name.
The magistrate concluded the first and second entries into the bedroom were lawful protective sweeps pursuant to Maryland v. Buie (1990) 494 U.S. 325 [108 L.Ed.2d 276]; but the third, fourth, and fifth entries were not permissible under the Fourth Amendment: “First, the officers did not articulate any reason to question that their safety remained at issue or that they needed to continue any further protective sweep or that any other persons were in the home who potentially posed a threat to them or others. They did not articulate any exigency, or any facts for exigency. Rather, both suspected the defendant was not being truthful about his identity, appeared nervous and about to flee. Further searches for identification are not the kind of searches authorized or contemplated by Buie. [¶] . . . [¶] . . . The officers were allowed to conduct a protective sweep, which they did; they had all persons inside the home detained. The only reason they had to re-enter a bedroom they had been in two times previously was to see if they could find identification for one of the detainees. That was not a valid, constitutional reason for effectuating additional entries into the bedroom to search. . . .”
Thus, the magistrate granted defendant’s motion to suppress evidence of the firearms.
The Present Search in September 2004
In July 2004, the California Department of Justice notified Detective Elliston that defendant was possibly in violation of his annual registration requirement under Penal Code section 290. After checking various computer databases, Elliston determined that defendant had been convicted of rape in 1986 and, thus, was required to register as a sex offender for the rest of his life. He also learned that defendant had not registered since July 2002.
A state computer database provided a registration address for defendant on Channel Court. Defendant’s July 2002 registration form also bore the address on Channel Court. In August 2004, Detective Elliston went to that address to contact defendant, without success. Then, after obtaining defendant’s “last known address” from the Sheriff’s Department known persons database, Elliston went to the residence on Fifth Avenue (Detective Mayes had furnished this address to the database after defendant’s arrest in December 2003). Elliston was unable to contact defendant at the Fifth Avenue address. Consequently, on August 12, 2004, a warrant was issued for defendant’s arrest based on his failure to register as a sex offender.
Detective Elliston informed Detective Mayes about the arrest warrant. Elliston thought Mayes could find defendant because Mayes had arrested defendant in December 2003. Mayes obtained a printout of defendant’s last known address on Fifth Avenue and gave it to Sergeant Winn, the team leader for the special enforcement detail. Mayes told Winn that he and Detective Ponce had arrested defendant at that address in December 2003 for possession of two firearms, one of which was stolen. Mayes also described the location of defendant’s bedroom.
Sergeant Winn and three other detectives went to the Fifth Avenue residence on September 10, 2004, with the arrest warrant for defendant Edward Caston. When they asked an occupant if “Ed” was there, the person initially walked away. When told to stop, he came back to the door, unlocked the security screen, and came outside, pulling the interior wooden door closed. Someone inside the house locked the door with a dead bolt. The person ultimately allowed the detectives to enter after they said they could do so forcibly. Inside, they located defendant in a bedroom. He fled, however, climbing out a kitchen window. The detectives tracked him to neighbor’s garage and placed him under arrest. They then search the bedroom and found three firearms defendant, a convicted felon, was not allowed to have in his possession.
In denying defendant’s motion to suppress the firearms and other evidence found in the bedroom, the magistrate held the detectives had probable cause and a reasonable belief that defendant was in the house.
Thereafter, defendant retained new counsel, who renewed the suppression motion in superior court (Pen. Code, §§ 995, 1538.5, subd. (i)), arguing that the evidence should be suppressed because it was the fruit of the unlawful arrest in December 2003, and that prior counsel was ineffective for having failed to raise the issue previously.
In denying the second motion to suppress, the trial court stated: “In this case, in the 2003 case, the Motion to Suppress was granted, but it was really the absence of justification for searching the residence that was the grounds for the Suppression Motion to be granted. [¶] The only matters that were suppressed in that case were the weapon[s] found during the search. In fact, the Court found that the entrance to that residence [in] December 2003 was proper to execute a search warrant and also that the protective sweep of the residence was justified. It was in the course of those that the defendant’s identification was [discovered], and so the Motion to Suppress really postdates the information that was then used by the detectives in the current case. [¶] . . . [¶] [O]nce the officers got to the residence, the men in the residence had the suspicion--the one man in the chair who refused to get out of the chair and open the door gave kind of Cryptic answers. And the second man who came to the door started to close the door then came back out and had the door locked behind him. With those suspicious circumstances along with the most recent information in the sheriff’s files given that address for the defendant, it does appear[] to me that there was probable cause to believe the defendant was in the residence at that time. So your motion in that regard[] as well is denied.”
DISCUSSION
Defendant contends that his suppression motion should have been granted because, but for his unlawful arrest during the December 2003 search, the officers would not have known his identity as a sometimes occupant of the Fifth Avenue house and, thus, would not have sought to arrest him there in September 2004. The contention fails even if discovery of defendant’s identity, and thus his connection to the Fifth Avenue residence, was the fruit of an unlawful arrest in December 2003.
“The general principles governing the subsequent exploitation of illegally seized evidence are familiar. Not all evidence is ‘“fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”’ [Citation.] Although sophisticated argument may prove a causal connection between information obtained illegally and evidence subsequently offered, such connection may have become so attenuated as to dissipate the taint. [Citations.] An intervening independent act by the defendant, if sufficiently an act of free will, may produce the requisite degree of attenuation. [Citation.]” (People v. Coe (1991) 228 Cal.App.3d 526, 531 (hereafter Coe); see People v. McInnis (1972) 6 Cal.3d 821, 825; Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170; People v. Thierry (1998) 64 Cal.App.4th 176, 179-184.)
“The commission of a new crime by the defendant will ordinarily be an intervening independent act of the defendant’s free will which purges the primary taint of prior police misconduct. [Citations.]” (Coe, supra, 228 Cal.App.3d at p. 531.) For example, “[i]n People v. Caratti [(1980) 103 Cal.App.3d 847 (hereafter Caratti)], an officer illegally searched the defendant’s car and found marijuana. The defendant was not prosecuted for that offense, but the officer who conducted the search encouraged a third person to act as an informant. The informant introduced an undercover officer to the defendant, who subsequently sold illegal drugs. The defendant argued the undercover sale was the product of the prior unlawful search and seizure. The court rejected this contention, finding that the commission of the new offense was a voluntary intervening independent act which dissipated the taint.” (Coe, supra, 228 Cal.App.3d at pp. 531-532, citing Caratti, supra, 103 Cal.App.3d at pp. 851-852; see also People v. Eastmon (1976) 61 Cal.App.3d 646, 653-654; People v. Guillory (1960) 178 Cal.App.2d 854, 856.)
Although the officer in Caratti exploited his knowledge of the defendant’s identity as a marijuana user, gained from the unlawful search, the later crime resulted from the defendant’s voluntary and independent decision to sell marijuana. Thus, the exclusionary rule did not apply to the later crime. (Caratti, supra, 103 Cal.App.3d at p. 852 [“If the defendant commits an intervening independent act which breaks the causal chain between the illegality and the evidence, the evidence is sufficiently attenuated and there is no exploitation of the illegality”].)
So it was in Coe. There, tools used to commit burglaries had been unlawfully seized from one of the defendants and were later returned to him after police applied small identifying marks to the tools and photographed them. (Coe, supra, 228 Cal.App.3d at p. 530.) The defendants then used some of the tools to commit other burglaries, and left them at the scenes of some of those new crimes. (Id. at p. 529.) Because the tools had been seized and marked as a result of their prior unlawful seizure, detectives were able to connect them to the defendants and used the information to obtain a warrant to search their homes. Incriminating evidence was seized during those searches. (Ibid.) The defendants argued that the search warrants should have been quashed and the incriminating evidence should have been suppressed as “‘fruit of the poisonous tree’” because issuance of the search warrants was “based in part upon inadmissible evidence tainted by a prior illegal search.” (Id. at p. 530.) The appellate court disagreed. It was true that “‘but for’ the prior illegal seizure the police would not have had the opportunity to examine the tools, but this is not sufficient to show exploitation of the illegality.” (Id. at pp. 532-533.) Because the new burglaries were intervening acts of the defendants’ free will (id. at p. 531), it “‘would stretch the exclusionary rule beyond tolerable bounds’” to suppress evidence seized as a result of the defendants’ subsequent crimes. (Id. at p. 533.) Therefore, “the trial court properly denied the motions to suppress evidence, because any taint from the prior illegal search was dissipated by [the defendants’] intervening independent acts . . . .” (Id. at p. 535.)
And so it is in this case. Just as in Caratti (where knowledge of defendant’s identity as a marijuana user was gained during an illegal search and then was used to arrest him for his subsequent criminal act of selling marijuana) and in Coe (where knowledge of the defendants’ identity as burglars who used certain tools of the trade was gained during an illegal search and then used to arrest them for their subsequent criminal conduct of committing other burglaries), the detectives in this case used their knowledge of defendant’s identity and presence at the Fifth Avenue residence gained from the December 2003 search to arrest him for his later criminal act of failing to register as a sex offender and to seize the guns that he unlawfully possessed at the time of his arrest. And just as in Caratti and Coe, the use of this knowledge did not constitute an exploitation of any earlier illegality that would justify suppression of the guns and other evidence later found in defendant’s possession. Because any taint from the prior search was dissipated by defendant’s intervening failure to register as a sex offender, the trial court did not err in denying defendant’s motion to suppress the evidence. (Coe, supra, 228 Cal.App.3d at p. 535; Caratti, supra, 103 Cal.App.3d at p. 852.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the crimes of which defendant was convicted were committed in 2004, not 2005, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J., RAYE , J.