Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-50298
BLEASE, Acting P. J.
Following the denial of her motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Rebel Gurreri pleaded nolo contendere to possessing marijuana for sale, transporting marijuana, and maintaining a place to sell marijuana. On appeal she argues the trial court erred in denying her motion to suppress evidence. We shall conclude the search of defendant’s motel room was justified by exigent circumstances because the police had probable cause to believe a burglary was in process, and that defendant and her children were in danger. We shall further conclude that defendant did not have a reasonable expectation of privacy in the duffle bag in which officers discovered marijuana, because she directed her companion to throw the bag out the window when the officers knocked on the door. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We present the facts as we must consider them: in the light most favorable to respondents, resolving all factual conflicts in favor of the trial court’s disposition of the motion. (People v. Woods (1999) 21 Cal.4th 668, 673.)
Around 10 p.m. on March 9, 2005, City of Rocklin Police Officer Jeff Kolaskey received a call from the Comfort Suites motel in Placer County. The dispatch indicated that someone had been seen climbing in through a window on the second story of the building. Kolaskey contacted the front desk clerk, who told him a guest had seen someone climb up the back of the building, remove a screen, and enter a room on the second floor. Kolaskey then spoke with the guest, who told him they had seen a male on the roof area enter one of the second floor rooms overhanging the pool where a window screen had been removed. Kolaskey contacted the desk clerk again, who told him the climber had entered room 214. Records indicated a female had checked into the room.
Kolaskey and two partners went to room 214. Before knocking, they listened at the door for around 20 seconds, during which time they heard a male and female voice. The officers felt it was probable that there was a burglary going on inside the room. They knocked on the door. A female voice asked who it was, and Kolaskey identified himself as a Rocklin police officer and asked her to open the door. The door did not open immediately, and they heard the woman say “Steven” several times.
Defendant then opened the door. Kolaskey asked who else was in the room, and she indicated only she and her two children were in the room. She then walked away, leaving the door open. Kolaskey interpreted her actions as consent to enter to determine if there was someone else in the room. The children were in bed, awake, and a man, later identified as Steven Ogletree, was also in the room. Ogletree was standing next to the window. The window curtains were pulled open, the window was open, and the screen was removed.
Kolaskey told defendant to stand with his partners while he went to the window and looked outside. He was looking to see if anyone had just left through the window. Kolaskey saw a duffel bag sitting on the roof just below the window. Kolaskey asked who the bag belonged to, but got no reply. He picked up the bag and brought it inside the room. He asked again who owned the bag, but got no reply. He opened the bag and discovered several large bags of marijuana, enough to fill the duffel bag.
After defendant was given a Miranda warning, she gave permission to search the room. In defendant’s suitcase, Kolaskey found a brown paper bag that contained a large amount of money. Officer Jason Westgate asked defendant for consent to search her vehicle located in the parking lot. Defendant consented, and Westgate discovered $4,000 in currency and a bag of coins.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Officer Brandon Olivera interviewed Ogletree after he waived his Miranda rights. Ogletree told him that when defendant heard the officers at the door, she instructed him to throw the duffel bag out the window.
The trial court issued a written ruling on defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5. The court ruled that the initial entry was justified because of exigent circumstances. The court stated that the officers were “justifiably concerned about the safety of the person in room 214.” The court stated that it was immaterial whether the police entered at the implied invitation of the defendant, or whether they forced their way in (as claimed by defendant) because at the time of the entry, the police believed there was a possibility of a burglary in progress, including the reasonable potential of a hostage situation. The trial court found the officer’s entry was authorized because, although they heard a male voice inside (and someone reported seeing a male enter through the window), they did not see Ogletree until they were inside.
The trial court determined it was proper for Kolaskey to cross to the open window to see if anyone had escaped through it. Citing In re Baraka H. (1992) 6 Cal.App.4th 1039, the court found that when defendant instructed Ogletree to discard the bag, and since neither of them attempted to reassert possession or control, they relinquished any reasonable expectation of privacy in the bag.
The trial court denied defendant’s motion to suppress the evidence. Defendant subsequently pleaded nolo contendere to possessing marijuana for sale, transporting marijuana, and maintaining a place to sell marijuana. The trial court sentenced her to five years formal probation on the condition she serve one year in county jail and be eligible for alternative sentencing after one half the sentence has been served.
DISCUSSION
I
Exigent Circumstances Justified the Search
The presumption that a warrantless search is unreasonable may be overcome by a showing of a few well-defined exceptions to the warrant requirement. (People v. Ormonde (2006) 143 Cal.App.4th 282, 291.) Relevant here are “‘“‘the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling . . . .’”’” (Ibid.) Entry into a home, or in this case a motel room, based on exigent circumstances requires probable cause to believe the entry is justified under one of these circumstances. (Ibid.) We defer to the trial court’s factual findings where they are supported by substantial evidence, and determine independently whether the search was reasonable under such facts. (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial court did not determine whether defendant gave her implied consent to the search, because it found exigent circumstances. Defendant argues the circumstances did not justify a warrantless entry. We conclude the trial court was correct in determining there were exigent circumstances that justified the entry.
As she did at trial, defendant relies on People v. Superior Court (Peck) (1974) 10 Cal.3d 645. In that case, law enforcement officers responded to a report that a man had been seen entering an apartment through a rear window. (Id. at p. 648.) The officer arrived at the apartment with the apartment manager. The manager verified that the man who answered the door was the tenant. (Ibid.) The tenant assured the officer there was no burglar in the apartment, and said he entered through the window because his wife had left the apartment with the key. (Ibid.) The officer stepped past the tenant into the apartment, where he discovered contraband. (Ibid.)
The court held the search could not be justified on the ground the officer had a duty to search for burglars. (Peck, supra, 10 Cal.3d at p. 650.) The court held any reasonable suspicions of an ongoing burglary were dispelled by: (1) the manager confirming the defendant lived in the apartment, (2) the defendant’s reasonable explanation for crawling through the window, and (3) the fact that the defendant stepped out of the apartment, which made a hostage situation unlikely. (Ibid.)
As the trial court found here, the circumstances of this case are distinguishable. “Here the police did not see their male suspect until after entry into the hotel room, defendant Ogletree did not step out of the apartment to give a plausible explanation for his conduct, and the hotel clerk did not verify defendant Ogletree’s right to be on the premises prior to entry by the police.” We add to this the fact that the officers heard a male voice, but were told by defendant that only she and her children were in the room.
We agree with the trial court that the officers had probable cause to enter the room based on the report of a man entering the window, the fact that only a woman was registered in the room, the sounds of a man speaking in the room, the defendant’s assertion that only she and her children were in the room, and the officer’s inability to see either the children or another adult from the doorway. Under these circumstances there was probable cause to believe there was a risk of danger to the officers and the other persons inside the motel room. Because we find sufficient exigent circumstances, we need not consider whether the search was authorized under the community caretaking exception pursuant to People v. Ray (1999) 21 Cal.4th 464.
II
No Reasonable Expectation of Privacy in the Duffle Bag
Defendant argues the placing of the duffel bag on the roof outside the motel room window did not constitute abandonment. We disagree.
In determining whether a person challenging an allegedly unlawful search had a constitutionally protected expectation of privacy regarding the item searched, the court engages in a two part inquiry: did the defendant manifest an expectation of privacy in the item, and is society willing to recognize the expectation as reasonable? (In re Baraka H., supra, 6 Cal.App.4th at p. 1044.) The burden is on the defendant to prove a protectible expectation of privacy. (Ibid.)
When a defendant discards incriminating evidence upon the approach of officers, “it operates as a relinquishment of any reasonable expectation of privacy with respect to the item discarded, ” unless the action is caused by improper police conduct. (In re Baraka H., supra, 6 Cal.App.4th at p. 1047, and cases cited therein.) When the officers entered the motel room, the bag was already out of defendant’s apparent possession and control, and was located in a common area of the motel. Defendant made no attempt to reassert possession of the bag, and did not claim it was hers when asked. The officers had no obligation to treat the bag as being clothed with an expectation of privacy.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., BUTZ, J.