Opinion
A156865
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOSEPH CONNOR 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17-SF-008285-A)
Defendant Patrick Joseph Connor was living in the garage of a private residence that was searched by sheriff's detectives pursuant to a search condition imposed on a third party under mandatory supervision of the county probation office. The detectives found methamphetamine on defendant's person and in the garage, and defendant was charged with one count of possession of a controlled substance for sale. After the trial court denied his suppression motion, defendant pleaded no contest to the charge and was sentenced to probation. On appeal, defendant contends the evidence should have been suppressed because the detectives lacked reasonable grounds to believe the supervised individual still lived in the residence, and defendant's detention and the search of the garage were outside the permissible scope of the search condition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We rely on the facts developed at the suppression hearing. On May 3, 2017, San Mateo Sheriff's Detective Patrick Taylor and two other officers went to a residence located at 222 Vermont Avenue (the Vermont Avenue home) at approximately 2:15 p.m. to conduct a probation search on Shawn Buxton. Buxton had been under mandatory supervision of the San Mateo County Probation Office since November 2013, which subjected his person, property, and residence to warrantless searches and seizures.
Defendant makes several references in his opening brief to testimony from the preliminary hearing. However, the motion to suppress was not made at that hearing. (Pen. Code, § 1538.5, subd. (f).) There is no indication in the record that the parties stipulated, expressly or impliedly, to consideration of the preliminary hearing transcript at the suppression hearing, and defendant does not demonstrate an applicable hearsay exception for the former testimony. (People v. Ramsey (1988) 203 Cal.App.3d 671, 678.) Accordingly, we will not consider the preliminary hearing transcript here. (People v. Fisher (1995) 38 Cal.App.4th 338, 341.)
Taylor previously had at least 25 different contacts with Buxton at the Vermont Avenue home, the last occurring in November 2016, and the Vermont Avenue address was the most recent on file with the probation office before the May 3, 2017, probation search. Taylor testified at the suppression hearing that he had "recently done a records' check on Mr. Buxton with the intention that we were going out to the coast that day, and the address was still listed as 222 Vermont, according to probation."
When Taylor arrived at the Vermont Avenue home, the front door was "wide open." Although no one was in the living room, Taylor could hear people "yelling at each other" inside. Taylor knew from previous experience that the home was constantly in a "disheveled" state and that multiple people lived there. He also knew from prior contacts that one of the occupants of the home, T.S., had physical limitations and slept on a bed in the living room, but neither T.S. nor his bed was in the living room on the day in question. The yelling appeared to be coming from a bedroom that Taylor recalled was occupied by Buxton and his wife.
Pursuant to rule 8.90 of the California Rules of Court, governing "Privacy in Opinions," we refer to certain individuals by their initials.
As Taylor and another detective stood at the front door, a woman named A.P. came out of the bedroom. A.P. made eye contact with the detectives, who were wearing clothing and hats marked with sheriff's stars and labels. As A.P. turned to go back into the bedroom, Taylor announced that they were from the "sheriff's office" and called for A.P. and the others to come out.
Taylor then entered the house and called the occupants into the living room. Four individuals—A.P., defendant, and two others—emerged from the bedroom. Buxton was not present. Taylor specifically asked defendant if anyone lived in the garage, and defendant said, "no, it's a common area." When asked where he lived in the house, defendant told Taylor that he "stays in pretty much anywhere in the house. People have access to the whole residence."
Taylor then performed warrant checks on the occupants of the house and learned that defendant had an outstanding arrest warrant. Taylor began issuing defendant a citation and promise to appear and advised defendant to keep his hand out of his pockets. Taylor also asked defendant if had anything illegal on his person, to which defendant responded, " 'What if I did?' " Defendant then reached into his pocket, pulled out a "metal cylinder," and attempted to discard it. Taylor handcuffed defendant and retrieved the cylinder, which contained methamphetamine. He conducted a further search of defendant's person and found "[a] large amount of currency."
Taylor then searched the garage. According to Taylor's testimony, "[i]t was not apparent that anybody was currently residing in the garage at the time. There was items—there was a large bed in the center of the garage. The laundry machines were both out in the garage and there was stuff strewn across the bed to make it hard for someone to sleep actually on the bed." Taylor searched "the area on top of the bed" and found a methamphetamine pipe and a digital scale. Next to the bed was a green metal locker, which had an unfastened lock on it. Taylor searched the locker and found a methamphetamine pipe with residue in it and a prescription pill bottle bearing defendant's name with a brown substance in it. Taylor also found a metal tin containing bags of a crystalline substance that he recognized as methamphetamine, empty resealable bags, and another prescription pill bottle with defendant's name on it. Elsewhere in the garage, Taylor found documents bearing defendant's name.
Defendant was charged by information with one felony count of possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) He brought a motion to suppress the evidence obtained from Taylor's search of the Vermont Avenue home. (Pen. Code, § 1538.5.) After an evidentiary hearing, the trial court denied the motion, finding there was "no violation justifying suppression of any evidence in this matter." Defendant then pleaded no contest, and the court suspended imposition of sentence and placed defendant on three years of supervised probation. Defendant timely appealed.
DISCUSSION
A defendant may move to suppress evidence on the ground that "[t]he search or seizure without a warrant was unreasonable." (Pen. Code, § 1538.5, subd. (a)(1)(A).) On review, we " ' "defer to the trial court's 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." ' " (People v. Suff (2014) 58 Cal.4th 1013, 1053.) In California, we review suppression issues under federal constitutional standards. (People v. Robles (2000) 23 Cal.4th 789, 794 (Robles).)
A warrantless search is per se unreasonable under the Fourth Amendment absent a recognized exception. (U.S. Const., 4th Amend.; Katz v. United States (1967) 389 U.S. 347, 357.) An exception may exist where an individual is subject to a warrantless search condition of probation (People v. Sandee (2017) 15 Cal.App.5th 294, 300-301 (Sandee)) or parole (Pen. Code, § 3067, subd. (b)(3); People v. Schmitz (2012) 55 Cal.4th 909, 916 (Schmitz)). Warrantless probation and parole searches are reasonable so long as the status of the probationer or parolee is known to the officer, and the search is not arbitrary, capricious, or harassing. (Samson v. California (2006) 547 U.S. 843, 846; Schmitz, at p. 916.) Additionally, for probation searches, the search must be within the scope of the search condition under an objective test of the language of the condition. (Sandee, at p. 304.)
In this case, Buxton was on mandatory supervision under Penal Code section 1170 at the time of the challenged search. Mandatory supervision, though monitored by county probation officers (Pen. Code, § 1170, subd. (h)(5)(B)), is "more similar to parole than probation." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423.) Here, there is no dispute that Buxton was subject to a search condition that permitted warrantless searches of his property and place of residence, or that Taylor and the other searching officers were aware of Buxton's mandatory supervision status at the time of the search.
In appealing the denial of suppression, defendant challenges the reasonableness of the search of the Vermont Avenue home at every step of the way. He first argues the officers failed to comply with the "knock-notice" rule before entering the home. He then contends that after the officers entered, they lacked reasonable grounds to commence the search because it should have been apparent to them that Buxton no longer lived there. Defendant also asserts the officers impermissibly detained the occupants of the home and ran warrant checks on them. Finally, defendant argues the officers exceeded the reasonable scope of Buxton's search condition when they searched the garage, locker, and metal tin. We address these arguments in seriatim.
Defendant additionally contends that Taylor conducted illegal pat searches of the occupants upon initial entry into the home, but he relies for this argument on the preliminary hearing transcript. As discussed above, it is inappropriate to consider the preliminary hearing transcript in this appeal (see ante, fn. 1), and there was no testimony at the suppression hearing that the occupants of the house were pat searched upon the officers' initial entry.
A. Knock-Notice Rule
The knock-notice rule requires police officers, before attempting to forcibly enter a home, to first knock on the door, announce their identity and purpose, and wait a reasonable period of time. (People v. Byers (2016) 6 Cal.App.5th 856, 863.) The rule "protects human life because 'an unannounced entry may provoke violence in supposed self-defense by the surprised resident'; protects property by providing residents an opportunity to prevent a forcible entry; and protects 'those elements of privacy and dignity that can be destroyed by a sudden entrance.' " (In re Frank S. (2006) 142 Cal.App.4th 145, 151 (Frank S.).) The knock-notice rule may be satisfied with substantial compliance. (People v. Miller (1999) 69 Cal.App.4th 190, 201.) Substantial compliance requires that officers identify themselves prior to entry, but may be found where they fail to state their purpose before entering. (People v. Keogh (1975) 46 Cal.App.3d 919, 927.)
Here, substantial evidence supports the trial court's implied finding that Taylor and his accompanying detectives substantially complied with the knock-notice rule. It was undisputed that the three detectives were in uniform when A.P. saw them standing outside the "wide open" front door of the house and that Taylor announced they were from the sheriff's office prior to their entry. On these facts, the purposes underlying the knock-notice rule were not frustrated. That is, there was no threat of provoking violent self-defense by surprised residents, of causing property damage, or of violating privacy by a "sudden" entry. (Frank S., supra, 142 Cal.App.4th at p. 151.)
In any event, defendant concedes the remedy for a knock-notice violation does not include suppression of evidence where the officers are lawfully in the home for a valid search. (Frank S., supra, 142 Cal.App.4th at p. 148, citing Hudson v. Michigan (2006) 547 U.S. 586.) As will be demonstrated, the detectives here were lawfully in the home pursuant to Buxton's search condition, and suppression was the only remedy defendant sought in his motion. Thus, any perceived error regarding the knock-notice rule was harmless.
B. Reasonable Grounds to Believe Buxton Resided at the Vermont Avenue Home
Defendant claims once the detectives learned that Buxton was not present and that A.P. currently occupied the room where Buxton and his wife previously stayed, the detectives should have realized that Buxton no longer resided in the home, and they should not have commenced a full search of the premises. At most, defendant contends, the search should have been limited to finding evidence of Buxton's continued residence. We are not persuaded.
A searching officer must have objectively reasonable grounds to believe the supervised individual resides at the searched location. (People v. Downey (2011) 198 Cal.App.4th 652, 661-662 (Downey).) This is a factual question for resolution by the trial court. (People v. Tidalgo (1981) 123 Cal.App.3d 301, 307.) In Downey, the court determined that substantial evidence supported the finding that police officers had reasonable grounds to believe the probationer resided at the searched apartment based on utility bills for the apartment bearing the probationer's name, even though the probationer was not present at the time of the search and, according to the defendant, had "moved out" months before. (Downey, at pp. 656, 659.)
Similarly, in the instant case, there was substantial evidence supporting the detectives' reasonable belief that Buxton resided at the Vermont Avenue home, despite the fact that he was not present at the time of the search. Taylor testified he had more than 25 previous contacts with Buxton at the Vermont Avenue home, which was the address on file with the probation office just prior to the search. Moreover, Buxton's absence at the time of the search and A.P.'s claimed occupancy in Buxton's former bedroom did not amount to meaningful indicators that Buxton no longer lived there, as Buxton's absence could have been temporary, and his living arrangements within the home could have changed. And contrary to defendant's suggestion, there was no testimony at the suppression hearing that any of the occupants expressly told Taylor that Buxton no longer lived at the Vermont Avenue home. Nor are we pointed to any evidence in the record that Buxton had "moved" away at the time of the search, as defendant argues in his reply brief. Given the totality of the circumstances, we conclude substantial evidence supports the trial court's implied finding that the officers had objectively reasonable grounds to believe that Buxton resided at the Vermont Avenue home at the time of the search.
C. Initial Detention and Warrant Check
At the outset of the search, Taylor detained each of the occupants of the house and ran their criminal histories. Defendant challenges the validity of that detention. The People respond that Taylor was permitted to briefly detain defendant and the other occupants in order to ascertain their identities and relationships to Buxton and the home, and also to protect the searching officers.
The People contend defendant lacks standing to challenge the detentions on behalf of the others. We construe defendant's challenge as directed against his own detention.
In order to justify a detention, a police officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio (1968) 392 U.S. 1, 21.) Detentions of persons incident to the execution of search warrants on private residences have been upheld by the United States Supreme Court and the California Supreme Court. (See Michigan v. Summers (1981) 452 U.S. 692, 702-703 (Summers); People v. Glaser (1995) 11 Cal.4th 354, 374-376 (Glaser).) These courts found that the limited intrusions were outweighed by the law enforcement interests at stake, including facilitating the orderly completion of the searches and minimizing the risk of harm to the officers. (Summers, at pp. 702-703; Glaser, at pp. 374-375.) In Glaser, the detention took "two minutes or less" (id. at p. 367) and was "limited to the time and means needed to resolve the questions of identity and occupancy and to protect the safety of those present while those questions are resolved" (id. at pp. 374-375).
Notably however, Glaser refused to adopt a rule that a person's mere arrival or presence at a location being searched justifies a detention for the purpose of determining the person's identity and connection to the searched premises. "Such blanket approval of detentions in the course of searches would present too great a danger of 'slippage into a guilty by association pattern whereby anyone seen near prospective drug activity becomes fair game for a stop and frisk.' " (Glaser, supra, 11 Cal.4th at p. 374.)
In People v. Gutierrez (2018) 21 Cal.App.5th 1146 (Gutierrez), the Court of Appeal held that a prolonged detention of a defendant incident to a routine compliance search of a probationer's home was unreasonable under the Fourth Amendment. The defendant "was ordered out of the house, subjected to a patdown search on the front porch or in the front yard, and directed to sit on the front porch evidently for the duration of [the probationer's] probation search, a period ranging from 30 to 50 minutes." (Gutierrez, at p. 1159.) The detention was "unduly prolonged" for "an independent investigatory purpose" to determine whether the defendant was subject to search terms himself. (Id. at pp. 1159-1160.) In concluding there were no specific and articulable facts justifying the detention, the court noted there was no evidence to suspect that the defendant was dangerous or that any criminal activity had occurred or was afoot; the search was not prompted by a probation violation but was a routine or random compliance search; and, even assuming that a limited detention and pat search were justified for officer safety, the continued detention for 30 minutes or more was not. (Id. at pp. 1160-1161.)
With these authorities in mind, we turn to the instant matter. Unlike Summers and Glaser, the search in question was not conducted pursuant to a search warrant. Nor does it appear that the search was prompted by any suspicion that Buxton had violated the terms of his mandatory supervision. (Cf. People v. Rios (2011) 193 Cal.App.4th 584, 589; People v. Matelski (2000) 82 Cal.App.4th 837, 841.) Rather, as in Gutierrez, the search of the Vermont Avenue home appears to have been a random or routine compliance search. (Gutierrez, supra, 21 Cal.App.5th at p. 1160.) In such searches, the need to detain a defendant for officer safety purposes "is not as compelling as when a search warrant has been issued or when a police officer has a reasonable basis to believe criminal activity is occurring." (People v. Hannah (1996) 51 Cal.App.4th 1335, 1345.)
Still, officer safety concerns were not wholly lacking in this case. The detectives were tasked with searching the residence of a convicted felon under mandatory supervision. They immediately encountered unknown persons inside the house yelling at each other. A.P. showed little regard for the detectives standing at the front door, and in returning to the bedroom may have been warning the others about the officers' arrival. The situation appeared unstable and distracting to a careful examination of the residence. Under these circumstances, there were specific and articulable facts supporting the implied finding that the detectives reasonably conducted a "protective sweep"—a limited search of the premises designed to ensure officer safety—by calling all of the occupants of the home into the living room. (People v. Ledesma (2003) 106 Cal.App.4th 857, 860, 863-864 [finding protective sweep incident to probation search reasonable].)
The record does not disclose the underlying criminal activity that led to Buxton's supervised status. By definition, however, mandatory supervision under Penal Code section 1170, subdivision (h), applies to felons sentenced under the Criminal Justice Realignment Act of 2011. (Pen. Code, § 1170, subd. (h); People v. Borynack (2015) 238 Cal.App.4th 958, 964.)
It was also reasonable for Taylor to briefly question defendant as part of the search of the residence. In the analogous case of probation searches, a lawful search of a residence shared by a probationer and nonprobationers may extend to common or shared areas of the residence. (Robles, supra, 23 Cal.4th at pp. 798-799.) Here, the living situation in the Vermont Avenue home was ambiguous, but Taylor knew from previous experience that multiple people lived in the house. When asked, defendant acknowledged he lived in the house and told Taylor that "people have access to the whole residence." Thus, it was reasonable for Taylor to ask defendant about common areas of the house and to rely on defendant's answers in order to determine the appropriate scope of the search.
The running of warrant checks calls for a separate analysis. An investigatory detention is unconstitutional when " 'extended beyond what is reasonably necessary under the circumstances [that] made its initiation permissible.' " (People v. McGaughran (1979) 25 Cal.3d 577, 586; Gutierrez, supra, 21 Cal.App.5th at pp. 1159-1160 [30 to 50 minute detention incident to probation search was unreasonably prolonged]; People v. Brown (1998) 62 Cal.App.4th 493 [warrant check did not unreasonably prolong traffic detention].) There is no fixed time limit for a constitutionally valid detention. (People v. Gomez (2004) 117 Cal.App.4th 531, 537.)
Here, there was no evidence of the duration of defendant's detention, let alone the time it took to conduct the warrant check. Taylor was not examined as to the duration of the warrant check, and defendant raised no contention below that it unreasonably prolonged the detention. Nor was there any testimony suggesting an unreasonably lengthy detention, such as defendant expressing a desire to leave the room or to otherwise terminate the encounter. On this record, and viewing the evidence in the light most favorable to the ruling, we cannot conclude the warrant check unreasonably prolonged defendant's detention so as to violate the Fourth Amendment.
In sum, the initial detention was lawful based on officer safety grounds and the need to ascertain the proper scope of the search, and there was no evidence that the warrant check unreasonably prolonged the lawful initial detention. The ensuing detention of defendant, though unrelated to the search of Buxton's presumed place of residence, was justified when Taylor learned that defendant had an outstanding arrest warrant and observed defendant attempting to discard a suspicious object. Accordingly, no unreasonable seizure occurred.
D. Search of Garage
Finally, defendant argues that Taylor's search of the garage was constitutionally invalid because it exceeded the reasonable scope of Buxton's search condition. He also appears to argue that the search of the closed but unsecured locker inside the garage, and the metal tin container inside the locker, were illegal in the absence of a search warrant. We are not persuaded.
The privacy expectation of a cohabitant is the same whether a search is undertaken pursuant to another cohabitant's condition of probation or term of parole. (People v. Sanders (2003) 31 Cal.4th 318, 330.) Although a garage attached to a home may give rise to a legitimate expectation of privacy therein (Robles, supra, 23 Cal.4th at pp. 795-796), officers acting pursuant to a valid residential and property search condition may search those areas of a residence, and the property therein, that they reasonably believe the supervised individual has complete or joint control over (id. at pp. 798-799). Because defendant explicitly told Taylor that the garage was a common area to which everyone had access, Taylor had reasonable grounds to believe that the garage was an area jointly controlled by Buxton and therefore that the garage and the containers therein were within the scope of a valid search of his presumed place of residence.
Defendant essentially argues that, notwithstanding what he told Taylor, the indicia of defendant's belongings in the garage defeated the reasonableness of Taylor's belief that the garage was a common area. But substantial evidence supported the trial court's implied finding to the contrary. Taylor testified that upon his entry into the garage, it was not apparent that anyone was currently living there. Moreover, Taylor found a methamphetamine pipe and scale on "top" of the bed, as well as a methamphetamine pipe with residue in it in the closed but unsecured locker adjacent to the bed. Not only did Taylor's findings precede his discovery of any indicia suggesting defendant's occupancy of the garage, but nothing Taylor found negated what defendant expressly told Taylor about the garage being a common area. Thus, it was appropriate for Taylor to continue searching the garage and its contents as property over which he reasonably believed Buxton had joint control.
To the extent defendant argues there was insufficient evidence in the record of the scope of Buxton's mandatory supervision search condition to determine the search of the garage was valid, he forfeited the issue by failing to raise it below. (People v. Redd (2010) 48 Cal.4th 691, 716.)
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Jackson, J.