Opinion
C080564
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JON DISCAR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRM201430562)
After an officer saw him making butane honey oil on his back patio, defendant Timothy Jon Discar pleaded no contest to manufacturing a controlled substance. On appeal, he challenges the denial of his suppression motion, contending the officer unlawfully (1) looked through his kitchen window and (2) looked through a small gap in his back patio fence. We will affirm.
BACKGROUND
At the preliminary hearing, defendant moved to suppress. Testifying at the hearing was the officer who saw defendant making butane honey oil.
The officer testified he was responding to a "suspicious circumstance" at a Davis apartment complex at 2:11 a.m. A caller had reported a female screaming. Noise complaints had been an ongoing problem, but when officers tried to contact those responsible, the occupants would turn off the lights and not answer the door. The officer explained, it "made me handle it more as a noise complaint."
The officer and his partner arrived at the apartment, which was on the first floor. They knocked on the front door several times but got no answer.
To the right of the front door was a kitchen window. The blinds were closed, but there was a partial opening at the bottom. The officer looked through the opening and saw people in the apartment and people on the back patio.
The officer told his partner he would go around the back to tell them to answer the door. The officer then walked through the center of the apartment complex to the backside of the apartments. As he approached, he could see into the patio through the slats surrounding it. From four or five feet away, his suspicion was aroused. From a foot away, he saw through the slats several people, including defendant, who appeared to be making butane honey oil.
The officer testified, "Given the size of the gap [between the slats], you could have seen it any number of distances away."
When he saw defendant, the officer was standing on a dirt area. The dirt area and the patio were next to a grass common area with a pool further away. In the other direction, the dirt area connected to a paved pathway. There were no "no trespassing" signs or anything blocking the officer's way.
The defense provided multiple photos of the apartment complex, including the patio and surrounding area.
The officer told the people on the patio to answer their door. The officers met defendant at the front door, identified him, and advised him of the noise complaint. Sometime later, a search warrant was executed and contraband and indicia of butane honey oil manufacturing was found in the apartment.
At the hearing, the trial court noted the prosecution was relying on the plain view doctrine, and the patio fence could be seen through fairly easily. Defense counsel responded that the "the big issue is actually where the observations were taken," and noted the officer was not on a sidewalk or paved walkway. He argued the dirt pathway next to the patio was not "held out as a public location for people to walk through." But, in response to the court's questions, defense counsel agreed the apartment complex was not a gated community, nor was there anything limiting the grass area to tenants. The court allowed the parties to brief the issue.
In a supplemental brief, the defense argued defendant had a reasonable expectation of privacy. The patio was not open to the public, it was surrounded by a fence, and no public pathway led up to it. Rather, the patio was 25 feet from the end of the paved walkway and a line of rocks separated the paved walkway from the dirt.
At the following hearing, the trial court denied the motion to suppress, concluding defendant lacked a reasonable expectation of privacy. It noted the patio was enclosed by slats allowing it to have been seen into from several feet away: "It's hard to have an expectation of privacy when you have open slats in your fence." And the patio was in view of other surrounding apartments.
Further, the dirt area by the patio was "well-worn" and appeared to be commonly used as a path between buildings to a nearby grassy play area and to a common area. The apartment complex was not gated, there were no barriers or signs indicating no trespassing, and nothing indicated the tenants or landlord did anything to provide privacy to the back patio. The court added: "I think both the general public and anybody that was in distress would expect the officer to walk around back on a well-worn dirt area towards the grassy play area, and if he could see in, take a look. And in this case, it was plain view."
The court also noted: "The Defense also made something of the fact that the officer had peered into the apartment earlier and the blinds were closed, and he could kind of see in there, but nothing was discovered when he did that. That just gave him more of a policing reason to go into the back."
The motion to suppress was later renewed before the superior court. In denying the renewed motion, the court noted the officer was in an impliedly open area. Defendant later pleaded no contest to manufacturing a controlled substance.
DISCUSSION
I
Defendant Has Forfeited His Challenge to the Officer Looking Into the Kitchen Window
Defendant first contends his home was unlawfully searched when the officer stepped off the front concrete walkway and peered through a small gap in the kitchen window blinds. He argues all fruit of that unlawful search must be suppressed, including the observation of defendant making butane honey oil. The People respond that the challenge is forfeited for failure to raise it below. We agree with the People.
" '[A] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.' " (People v. Tully (2012) 54 Cal.4th 952, 980.) And, here, defendant's suppression motion was based exclusively on the officer looking into the patio area.
Defendant, nevertheless, maintains he raised the issue by asking the officer on cross about looking through the window and by offering photos of the window as exhibits. He also notes when the trial court denied his motion, it stated, "The Defense also made something of the fact that the officer had peered into the apartment earlier and the blinds were closed . . . ." We are not persuaded.
Asking the officer about looking into the window and offering a photo of the window (amongst many other photos of the complex) was not the same as actually arguing that looking through the window was unlawful. And even if the court's statement somehow preserved the challenge, it did not preserve the separate question of whether the discovery on the patio was fruit of the poisonous tree. That issue was never raised below.
Had it been raised the trial court might have reasonably concluded that officers responding to a complaint of a woman screaming would check the back side of the apartment after no one answered the door—regardless of whether they had looked into the window and saw people inside.
Defendant's first contention is forfeited.
II
Looking Into the Patio Area Was Not an Unlawful Search
Defendant next contends looking into the back patio area constituted an unlawful search. He argues he had a reasonable expectation of privacy in the back patio area, especially at that time of day, and the officer lacked authority to come within a foot of the fence and look through the gaps. He maintains, the officer was not standing in an area open to public or common use. We disagree.
The Fourth Amendment sets forth a reasonableness standard. (People v. Camacho (2000) 23 Cal.4th 824, 830 (Camacho).) Under that standard, we ask "did the defendant exhibit a subjective expectation of privacy?" and "is such an expectation objectively reasonable, that is . . . one society is willing to recognize as reasonable?" (Id. at pp. 830-831.)
Fourth Amendment protection, however, does not extend to what a person knowingly exposes to the public, even in one's home. (Camacho, supra, 23 Cal.4th at p. 831.) Officers need not shield their eyes when passing a home on a public thoroughfare. (Ibid.) Further, taking measures to restrict some views of one's activities does not preclude an officer from observing clearly visible activities from a public vantage point where the officer has a right to be. (Ibid.)
In reviewing the trial court's determination, we uphold factual findings if supported by substantial evidence. (Camacho, supra, 23 Cal.4th at p. 830.) But we independently review whether the search was reasonable. (Ibid.)
Here, the trial court properly concluded the officer's observation into the patio was lawful. The trial court found the officer was standing in an area commonly used as a path to a grassy area and another common area. And the patio's goings on were plainly visible because of the open slats. Those factual findings were supported by testimony as well as photo exhibits of the apartment complex.
Defendant's argument that "large river stones border the paved walking ways, creating a distinct visual and physical barrier" is undermined by the finding that the dirt path was well worn and appeared to be commonly used. --------
Given that context—combined with the fact that the officers were responding to a complaint of a woman screaming and no one had answered the door—going around the back to contact the occupants was not unlawful and did not violate defendant's reasonable expectation of privacy. (See Camacho, supra, 23 Cal.4th at p. 836 ["had the officers on their arrival at defendant's house heard a raucous party, confirming the anonymous complaint that brought them there in the first place, and had they then banged on the front door to no avail, their entry into the side yard in an attempt to seek the source of the noise would likely have been justified"].)
The trial court properly denied defendant's motion to suppress.
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
BUTZ, J.