Opinion
H045699
11-14-2019
THE PEOPLE, Plaintiff and Respondent, v. HOA DUC VU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1508743)
Defendant Hoa Duc Vu stands convicted by his plea of no contest to one count of unlawful importing, transporting, and/or attempted importing or transporting over 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)(3)) with the admission that he was armed with a firearm during the offense (Pen. Code, § 12022, subd. (a)(1)). On appeal, he challenges the denial of his motion to suppress evidence seized during searches of his home, vehicle, person, and storage unit. Defendant contends that officers' initial warrantless entry into his home—to which he consented—was illegal because his consent was given during an unlawful detention, making it involuntary. He further argues that neither exigent circumstances nor any other exception to the warrant requirement justified the warrantless entry. Defendant argues that evidence seized during the subsequent searches, which were carried out pursuant to search warrants, should have been suppressed as the fruits of the initial illegal entry. Finally, he maintains that the "good faith" exception to the exclusionary rule announced in United States v. Leon (1984) 468 U.S. 897 does not apply under the present circumstances. We will affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
I. BACKGROUND
The facts are taken from the transcript of the preliminary hearing and the hearing on defendant's suppression motion, which were held concurrently.
On the morning of April 9, 2015, a security specialist at a San Jose FedEx facility notified Detective Rafael Garcia that a package containing suspected contraband had been intercepted. When the FedEx security specialist opened the package, Detective Garcia observed a smaller box enclosed in gift wrap within it. The security specialist then opened the second box which contained $50,165 in cash. The cash had been divided into six stacks and wrapped in Saran Wrap and fabric softener sheets. Detective Garcia testified, based on his training and experience, that large amounts of currency sent by mail "normally [are] narcotic[s] proceeds." He also explained that it was "not unusual" for narcotics to be packaged in fabric softener sheets in an effort to avoid detection by drug sniffing dogs. A trained K-9 dog subsequently did alert to the presence of narcotics in the package which led Detective Garcia to opine that the currency had come into contact with narcotics.
At the time, Detective Garcia was employed by the Monterey County Sheriff's Department and was assigned to the Drug Enforcement Administration as part of a Narcotic Investigation Task Force operating in Northern California.
The package was addressed to Thanh Vu at an address in San Jose. Six task force officers responded to the address—a residence—later that same day. They observed two vehicles parked in the driveway, one of which—a Honda Accord—was registered to Thanh Vu.
At approximately 4:15 p.m., Detective Garcia and Agent Rubino approached the front door of the residence. Two other task force officers positioned themselves on the east side of the residence to observe the backyard area. The remaining two officers stood on the west side of the residence near the garage.
Detective Garcia and Agent Rubino knocked on the front door twice with no response. The officers then shouted "FedEx" as they knocked a third time. A man answered the front door. As the door opened, Detective Garcia noticed an "overwhelming" odor of fresh marijuana coming from inside, which he believed to be consistent with the "odor of marijuana . . . being cultivated."
The officers identified themselves and told the man that they were there to investigate a package. They asked if Thanh Vu lived there. The man said that he did not. Detective Garcia then asked the man if he knew who owned the Honda Accord that was parked in front of the home. The man responded that the vehicle belonged to his friend's girlfriend. When Detective Garcia asked if there was marijuana inside the home, the man indicated that there was none present. Detective Garcia then asked whether the man had a medical marijuana card and he responded that he did but that he did not have it "on his person." The man then declined the officers' request to search the home for marijuana.
As the officers were speaking with this man, defendant drove up to the home and parked in the driveway. A man later identified as Ha Thanh Vu was in the passenger seat. Both men then exited the vehicle. Defendant appeared "surprised and shocked." At the preliminary hearing, Detective Garcia testified that he had not instructed the men to exit the vehicle. As to whether another officer may have issued such a command, he responded: "I don't remember. I didn't hear them if any officer told them [sic] to get out." Later, Detective Garcia offered: "I don't recall what lead [sic] to the driver stepping out of the vehicle. Was he given an order, I don't know."
While defendant and his passenger share the same surname, their relationship is unclear from the record.
After the men got out of the vehicle, Detective Garcia approached defendant along with Agent Robinson. "[A]t some point," Agent Rubino also approached and spoke with the passenger. During this interaction, the officers were dressed in jeans and ballistic vests. According to Detective Garcia, the ballistic vests each contained handcuffs, a taser, magazines, and a handgun. The vests also identified the officers as law enforcement. The remaining officers were within 10 feet of the vehicle at this time.
Agent Robinson initially spoke to defendant. Detective Garcia stood next to Agent Robinson and listened but did not ask any questions. Defendant indicated that he lived at the residence. Agent Robinson asked: "Whose car are you driving?" or something to that effect. He also asked whether officers could search defendant's residence and vehicle. Defendant said yes. Although Detective Garcia could not recall the exact words defendant used, he remembered that defendant had indicated that officers were free to search either his "living area" or "living place." Prior to giving consent to search, defendant spoke with Agent Robinson for "maybe a minute" or two.
On cross-examination, defense counsel asked Detective Garcia whether Agent Robinson "put his hands on" defendant at any time. Detective Garcia testified that he didn't "remember seeing [Agent Robinson] putting hands on" defendant, but noted "this is 22 months ago . . . [so] a lot of what I remember also came off of my reports, too." When asked whether defendant "may have been patsearched during this conversation," Detective Garcia responded "[s]trong possibility." On redirect, Detective Garcia stated that he did not recall whether defendant was patsearched before giving consent to search. Detective Garcia noted that he eventually patsearched defendant inside the home.
Detective Garcia also overheard Ha Thanh Vu tell Agent Rubino that he lived at the residence and that he consented to a search of the home.
After receiving defendant's consent to search, all six officers entered the home. Detective Garcia testified that the odor of marijuana was stronger inside the home. In the living room, he observed two mattresses and a plastic bag that appeared to contain approximately half a pound of marijuana. Based on his training and experience, the detective believed that the amount of marijuana and the manner in which it was packaged were consistent with the sale and cultivation of marijuana. The fact that there were two mattresses in the living room also suggested to the detective that the bedrooms were likely being used for marijuana cultivation. Officers had walked approximately 10 feet into the home when defendant abruptly revoked his consent to search.
At approximately 9:30 p.m. that same evening, Detective Garcia obtained a warrant to search the home. During the subsequent search, officers discovered over 50 pounds of processed marijuana, empty fertilizer containers, lighting equipment that could be used to cultivate marijuana, $1,790 in cash, and two nine-millimeter firearms. Defendant admitted owning one of those firearms. During a later search of defendant's vehicle, officers recovered more than one additional pound of marijuana. Detective Garcia estimated the street value of the seized marijuana to be at least $50,000.
Defendant was arrested. During a search of his person incident to arrest, officers found a rental storage receipt and two keys. Officers searched the storage unit pursuant to a second warrant. Inside, they discovered additional lighting equipment that could be used to cultivate marijuana.
B. Procedural History
The Santa Clara County District Attorney charged defendant by information with maintenance of a place for unlawful activities involving controlled substances (§ 11366; count 1); unlawful importing, transporting, and/or attempted importing or transporting over 28.5 grams of marijuana (§ 11360, subd. (a)(3); count 2); misdemeanor possession for sale of marijuana (§ 11359, subd. (b); count 3), and misdemeanor cultivation of marijuana (§ 11358, subd. (c); count 4). The information further alleged that defendant was armed within the meaning of Penal Code section 12022, subdivision (a)(1), during the commission of counts 1 and 2.
Defendant filed a Penal Code section 1538.5 motion seeking to suppress all evidence obtained from his home, car, storage shed, and person. After hearing argument on the motion, the magistrate took the matter under submission. At a separate hearing, the magistrate denied the motion without making any factual findings on the record. Defendant then filed a renewed motion to suppress and a motion to set aside the information pursuant to Penal Code section 995. The superior court denied the renewed motion to suppress. The court denied the Penal Code section 995 motion with respect to count 2, but granted it with respect to count 1.
In exchange for the dismissal of the other charges and the grant of formal probation, the defendant subsequently pleaded no contest to violating section 11360, subdivision (a)(3), with the admission that he was armed within the meaning of Penal Code section 12022, subdivision (a)(1), during the offense.
A sentencing hearing was conducted on February 16, 2018. Before suspending imposition of sentence, the court granted defendant formal probation for a period of three years with various conditions, including that he serve six months in the county jail. The court also imposed various fines and fees. This timely appeal followed.
II. DISCUSSION
Defendant contends that the court erred in denying his suppression motion. He argues that the initial entry into his home was unconstitutional because his consent to search was invalid, having been obtained while he was unlawfully detained, and the exigent circumstances exception to the warrant requirement did not apply. While the evidence at issue was seized during the execution of subsequently obtained search warrants, he contends that those search warrants were invalid because they were based on evidence acquired during the initial illegal search. Finally, defendant maintains that the "good faith" exception to the exclusionary rule announced in Leon does not apply under the present circumstances. The Attorney General responds that defendant was never detained and even if he was, that detention was supported by reasonable suspicion. Alternatively, the Attorney General argues that the initial warrantless entry was reasonable under the exigent circumstances exception to the warrant requirement to prevent destruction of evidence. We conclude that exigent circumstances justified the initial warrantless entry. Accordingly, we do not address whether defendant was detained, whether officers had reasonable suspicion to carry out a theoretical detention, or whether the evidence should have been excluded based on a Fourth Amendment violation.
A. Standard of Review
When a renewed motion to suppress is submitted to the superior court on the preliminary hearing transcript, " 'the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.' " (People v. Hua (2008) 158 Cal.App.4th 1027, 1033 (Hua).) "If factual findings are unclear, the appellate court must infer 'a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.'" (People v. Middleton (2005) 131 Cal.App.4th 732, 738; see also People v. Munoz (2008) 167 Cal.App.4th 126, 132-133.) In exercising our independent judgment as to whether the search or seizure complied with the Fourth Amendment under those facts, "[w]e affirm the trial court's ruling if correct under any legal theory." (Hua, supra, at p. 1033; People v. Lenart (2004) 32 Cal.4th 1107, 1119; People v. Zapien (1993) 4 Cal.4th 929, 976.)
B. Fourth Amendment Principles
The Fourth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment, protects the individual against unreasonable searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 645-660.) To be reasonable under the Fourth Amendment, it is well established that a search or seizure must either be conducted pursuant to a warrant or a judicially recognized exception to the warrant requirement must apply. (Kentucky v. King (2011) 563 U.S. 452, 459; People v. Allen (2000) 78 Cal.App.4th 445, 448-449; People v. Williams (1999) 20 Cal.4th 119, 125-126.) When officers lack a search warrant, the People bear the burden of establishing "either that no search occurred, or that the search undertaken by the officers was justified by some exception to the warrant requirement." (People v. Camacho (2000) 23 Cal.4th 824, 830; see also Williams, supra, at p. 130.)
Voluntary consent and exigent circumstances are among the recognized exceptions to the warrant requirement. (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 874, 878.) "Exigent circumstances include 'those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent . . . the destruction of relevant evidence.' " (United States v. Fowlkes (9th Cir. 2015) 804 F.3d 954, 970.) " ' " 'There is no ready litmus test for determining whether [exigent] circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.' " ' " (People v. Ovieda (2019) 7 Cal.5th 1034, 1041.) " ' "As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or 'hunches,' but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary." ' " (Ibid.) An objective standard applies to this assessment; that is, the facts known to the officer must demonstrate that the belief that evidence might be destroyed was "objectively reasonable." (People v. Ortiz (1995) 32 Cal.App.4th 286, 292 (Ortiz).)
"In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards." (People v. Troyer (2011) 51 Cal.4th 599, 605; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.) We are bound by decisions of both the United States Supreme Court and the California Supreme Court interpreting the Fourth Amendment and "[a]lthough decisions of lower federal courts are not binding precedent, they are persuasive authority." (People v. Madrid (1992) 7 Cal.App.4th 1888, 1895.)
C. Exigent Circumstances Justified the Warrantless Entry
Defendant argues that the prosecution failed to demonstrate that exigent circumstances justified the warrantless entry into his home because there was no evidence of the potential imminent destruction of evidence and officers had evidence of only a "minor crime," possession of less than 28.5 grams of marijuana. He is mistaken.
The task force officers went to the residence after a FedEx security specialist discovered a suspicious package addressed to the home. The officers were aware that the package contained $50,165 in cash wrapped in a manner "not unusual" for narcotics, that a trained K-9 had alerted to the presence of narcotics in the package, and that large amounts of cash being sent through FedEx "normally [are] narcotics proceeds." When a man answered the door, Detective Garcia immediately noticed the overwhelming odor of cultivating marijuana. Yet the man denied that there was marijuana in the home. Given these facts, the task force officers could reasonably have inferred that they would find evidence of large-scale marijuana cultivation for sale in the residence.
Detective Garcia testified that in his experience narcotics are often destroyed in circumstances where officers arrive at a home "like the house that [he] arrived at" and discover the presence of narcotics. He indicated that narcotics can be destroyed using a "[v]ariety of different methods," including being flushed down the toilet. He also stated that he was concerned that occupants of the residence could hide the marijuana in a "basement or room" that officers would not be able to access during a later search. Under these circumstances, a belief that evidence might be imminently destroyed was objectively reasonable.
It is worth noting that whether the task force officers relied on the existence of exigent circumstances in deciding to enter the home without a warrant is irrelevant. (People v. Hull (1995) 34 Cal.App.4th 1448, 1452-1457 [exigent circumstances justified warrantless entry into residence to prevent evidence destruction regardless of whether the officer relied on that theory when he entered].)
The Third District Court of Appeal reached the same conclusion in Ortiz. There, officers noticed a woman counting tinfoil bindles of heroin as they walked past the open door of a hotel. (Ortiz, supra, 32 Cal.App.4th at p. 289.) Believing that the bindles contained heroin and fearing that it might be destroyed, the officers entered the room, arrested the woman, and seized the heroin. (Ibid.) The Third District Court of Appeal determined that the exigent circumstance that the heroin could be destroyed justified the officer's warrantless entry into the hotel room, which is considered a "home for purposes of the Fourth Amendment." (Id. at p. 291.) "Since it is common knowledge that those who possess drugs often attempt to destroy the evidence when they are observed by law enforcement officers," the appellate court determined that it was reasonable for the officer to believe the contraband that he observed was in danger of imminent destruction. (Id. at p. 293.)
We recognize that it would be more onerous to destroy pounds of marijuana than bindles of heroin. But it ultimately took approximately five hours to obtain a search warrant. Officers reasonably could have concluded that defendant and the other residents could have destroyed the marijuana in the time it would take to obtain a warrant. (Cf. People v. Robinson (1986) 185 Cal.App.3d 528, 532 [observation of large quantity of marijuana in apartment established exigent circumstances justifying entry]; United States v. Reid (11th Cir. 1995) 69 F.3d 1109, 1113-1114 [exigent circumstances based in part on "large quantities" of cocaine and cocaine deliveries].)
Officers arrived at the residence at approximately 4:15 p.m. and the search warrant was signed at approximately 9:35 p.m.
Defendant resists the conclusion that exigent circumstances justified the warrantless entry into his home. Citing People v. Celis (2004) 33 Cal.4th 667 (Celis) and Segura v. United States (1984) 468 U.S. 796 (Segura), he contends that because everyone "known to be associated with the home [was] already outside," officers could have set up a perimeter to ensure that no one entered the residence while they obtained a search warrant. Celis and Segura are not on point. In Celis, the California Supreme Court held that officers lacked reasonable suspicion to conduct a protective sweep of the defendant's home incident to his arrest because they did not have reasonable suspicion that anyone was inside the home at the time. (Celis, supra, at pp. 679-680.) Segura held that an unoccupied residence may be secured to prevent the destruction of evidence where there is probable cause to search but no exigent circumstances. (Segura, supra, at p. 810.) Here, three residents of the home were present and exigent circumstances existed. Neither Celis nor Segura holds that a warrantless search is improper in those circumstances.
Defendant also maintains that exigent circumstances could not justify the warrantless entry into his home because officers had evidence of only the minor offense of possession of less than 28.5 grams of marijuana. In support of this contention, he relies on the First District Court of Appeal's opinion in Hua and the Second District Court of Appeal's opinion in People v. Torres (2012) 205 Cal.App.4th 989. We are not persuaded.
In Hua, the First District Court of Appeal found that evidence supporting the conclusion that a defendant was in possession of less than 28.5 grams of marijuana could not provide exigent circumstances justifying a warrantless entry because such a violation was a nonjailable offense. (Hua, supra, 158 Cal.App.4th 1027at p. 1030, fn. 4.) Similarly, in Torres, the Second District Court of Appeal determined that officers did not have exigent circumstances justifying a warrantless entry of a hotel room based on the "strong smell" of burning marijuana. (Torres, supra, 205 Cal.App.4th at pp. 992-996.) The appellate court noted that the "police only smelled the odor of burning marijuana. They had no other information about marijuana possession or any other marijuana-related crime occurring in the hotel room. No evidence indicated the officers had reason to fear the imminent destruction of evidence of a jailable offense . . . [A] belief that evidence of a nonjailable offense will be imminently destroyed is not sufficient to justify a warrantless entry based on exigent circumstances." (Id. at p. 995.)
Unlike the situations presented in Hua and Torres, Detective Garcia noticed the "overwhelming" smell of fresh marijuana, suggesting large-scale cultivation and/or possession for sale, not someone smoking a joint. And he was aware that over $50,000 in cash, wrapped in a manner similar to narcotics, had been sent to the residence. These facts amply supported an inference that officers would find evidence of jailable offenses inside the residence.
Defendant finds it significant that the man who answered the door to the residence claimed to have a medical marijuana card. We do not. In light of the suspicious package and man's obvious dishonesty about the presence of marijuana, the officers could reasonably have concluded that the smell of marijuana was attributable to the cultivation or possession of marijuana for sale and not mere possession of medicinal marijuana. (Cf. People v. Waxler (2014) 224 Cal.App.4th 712, 723 [noting that the fact that "California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception"]; People v. Mower (2002) 28 Cal.4th 457, 469 ["contrary to defendant's position, the requirement that law enforcement officers have probable cause for an arrest does not mean that [the Compassionate Use Act] must be interpreted to grant such persons immunity from arrest"].)
In sum, we conclude that exigent circumstances justified the initial warrantless entry into defendant's home. Considering that the officers' initial entry into the residence was lawful, the search warrants that were subsequently issued were also valid. Given these conclusions, we need not address defendant's remaining contentions.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.