Opinion
C083664
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID LESTER JACKSON, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on July 24, 2018, be modified as follows:
On page 5, in the first sentence of the first paragraph, beginning with "Deputy Feldman, an officer of 16 years," the words "what he recognized as" are inserted between "containing" and "methamphetamine. As modified this sentence now reads:
Deputy Feldman, an officer for 16 years, testified he entered room 227 and saw a plastic bag containing what he recognized as methamphetamine in plain view on the bed.
On page 5, in the last paragraph, in the sentence "Defendant had only been allowed to enter the room with the permission of Perkins and Gardner," the word "and" is deleted and replaced with the word "or" and the words "or both" is added before the period. As modified the sentence now reads:
Defendant had only been allowed to enter the room with the permission of Perkins or Gardner, or both.
There is no change in the judgment.
Appellant's petition for rehearing is denied. BY THE COURT:
/s/_________
Blease, Acting P. J.
/s/_________
Mauro, J.
/s/_________
Renner, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE005574)
Defendant David Lester Jackson pleaded no contest to firearm and drug charges. On appeal, he contends the trial court improperly denied his renewed motion to suppress evidence discovered during a search of a motel room, including a firearm, drugs, and indicia of drug sales. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The magistrate heard defendant's motion to suppress (Pen. Code, § 1538.5) during the May 5, 2016 preliminary hearing. At the hearing, three sheriff deputies testified.
Undesignated statutory references are to the Penal Code.
Deputy Lawrence Stafford, who had been a peace officer for nine years, testified as an expert with respect to methamphetamine and heroin. On March 16, 2016, Stafford and his partner Deputy Gabriel Maggini were in an unmarked car in the parking lot of a local motel in a high crime area. Stafford had made several arrests at the motel, the majority of which were for narcotics possession and sales. The officers wore tactical vests with the word "[p]olice" written across the chest and back.
A few minutes after arriving at the parking lot, Deputy Stafford noticed a parked vehicle with its lights on and an expired registration, in violation of Vehicle Code section 4000, subdivision (a). Stafford also thought it suspicious that no one got in or out of the car. Stafford and Maggini approached and saw three occupants in the car, including Coltin Fernandez, Raquel Perkins, and Kelsey Kofoid. Stafford recognized Perkins because he had arrested her in October 2015 for possession of narcotics for sale. Stafford knew that arrest had led to Perkins being on searchable probation; he also confirmed her probation status in a database. Perkins appeared "very nervous" and repeatedly said, "oh my God, oh my God. I just got out." Fernandez told Stafford that he and Kofoid were heroin addicts and were at the motel to purchase narcotics from Perkins. Perkins complied with Stafford's request to get out of the car and provide identification. Stafford searched her person but did not find anything illegal.
There was a purse on the floor of the car's back seat, where Perkins had been sitting. Pursuant to Perkins's probation conditions, Deputy Stafford searched the purse and found a separate canvas bag inside containing 1.37 grams of heroin and 7.13 grams of methamphetamine, both usable amounts. Stafford also found indicia of drug sales, including a digital scale, 100 small plastic bags, and cash. In Stafford's opinion, Perkins possessed the drugs for sale. Perkins was handcuffed, placed under arrest, and detained in a police car.
Perkins told Deputy Stafford she was staying in room 227 at the motel. Stafford testified he understood Perkins to mean she was staying the night and had belongings in the room. Stafford never asked Perkins nor motel management whether she was registered with the motel as an occupant of room 227. Deputy Travis Sanders found a keycard on Perkins and gave it to Deputies David Feldman and Maggini. Stafford asked Maggini and Feldman to search room 227. They returned 15 minutes later with defendant in handcuffs. Stafford heard defendant say, "I stole that bag."
Similar to Stafford, Maggini, who had been a peace officer for 18 years, testified as an expert on heroin and methamphetamine for personal use and sales. Maggini testified Perkins said she had rented room 227, and he verified her statement by having the motel front desk clerk confirm that Perkins' room key would open that room. Maggini searched room 227 pursuant to Perkins's probation conditions and based on contraband they found in her purse. When Maggini approached room 227 for the search, he noticed it was dark: the curtains were drawn and no lights were on. Maggini testified he did not anticipate anyone would be in the room, since Perkins had told him there was no one else there.
Maggini testified Deputy Feldman used the key to open the door, and Maggini saw defendant and Stephanie Gardner in the room. The officers had not knocked or announced their presence prior to opening the door, and Maggini did not have his gun out when they opened the door. Gardner was sitting on the bed, while defendant was near the window. There were bags, women's clothes, food, and other property strewn about the room. There was nothing in the room to indicate defendant was staying in the room overnight. Maggini informed Gardner and defendant the officers were there to perform a probation search based on Perkins staying in the room. Defendant and Gardner complied with Maggini's request to sit on the couch.
The deputies did not knock on the door first.
After performing a protective sweep of the room, Maggini spoke with Gardner and defendant. Gardner was "very friendly" and "pretty cooperative" and told Maggini she had only met defendant that day. She had rented the room and was sharing it with Perkins. She identified certain bags as hers and gave Maggini permission to search them. Gardner also said some items were Perkins's but did not identify anything as belonging to defendant. Maggini testified he and Deputy Feldman searched every bag in the room.
Maggini testified defendant was initially cooperative until Maggini picked up a black "standard" backpack near the window (in the same general area where defendant had been standing) and a pile of women's clothes. There were no identifying features on the backpack, such as a name tag or distinctive key chain. Defendant claimed the bag was his and objected to any search. Given that the backpack was one of several bags in the room where Perkins was staying, Maggini searched the bag, pursuant to Perkins' probation search conditions. In addition, Maggini testified, there was no way to verify whether the backpack was defendant's, and, in his experience, people will "[f]requently" lie about ownership of items that police intend to search. Maggini told defendant his objection was noted. Defendant asked if he could call his attorney, and Maggini responded yes. Maggini then opened the backpack and searched it. Maggini found a glass pipe for smoking methamphetamine, a digital scale, 34 grams of methamphetamine, seven grams of heroin, and a loaded firearm that appeared operable. In addition, there was a paper copy of defendant's driver's license inside. In Maggini's opinion, the drugs found in the backpack were possessed for the purposes of sales.
Deputy Feldman, an officer for 16 years, testified he entered room 227 and saw a plastic bag containing methamphetamine in plain view on the bed. He did not have his gun drawn when he initially entered the room, although he briefly pulled it out when he saw Gardner and defendant. When Feldman saw Gardner and defendant's hands were "empty," he put back his gun. Gardner told Feldman that defendant was not staying in the room. Gardner said it had been too dark when defendant arrived for her to notice whether he was wearing a black backpack. She had not noticed the backpack prior to defendant's arrival.
In support of his motion to suppress, defendant argued he had a reasonable expectation of privacy in the backpack. Defendant further argued that, even if Perkins had waived her Fourth Amendment rights by agreeing to probation, "she certainly has not waived [defendant's] Fourth Amendment rights." According to defendant, he was merely a transient in the motel and there was no evidence Perkins had access, control, or dominion over the backpack. The prosecution argued the question was not who owned the backpack, but rather whether the officers had a reasonable belief that Perkins had access to or control over the backpack.
The magistrate denied defendant's motion to suppress. The court found the police were entitled to enter the motel room, based on Perkins's probation search condition. There was also evidence Perkins was possibly involved in a criminal enterprise, considering "what was going on in the car and . . . in the motel room," including the drugs on the bed. Given Perkins' statement to the police she had rented the room and Gardner's statement they were sharing the room, only Perkins and Gardner had the right to privacy in that room. Defendant had only been allowed to enter the room with the permission of Perkins and Gardner. Although defendant claimed ownership of the backpack, everything else in the room was owned by Gardner or Perkins. Other than defendant's statement to police, there was nothing indicating he owned the backpack. As such, reasoned the court, Perkins jointly controlled all of the items in the room, including the backpack.
Defendant renewed his motion to suppress in June 2016. During the July 2016 hearing, the trial court asked defense counsel if "everyone believed the entry into the motel room is not objectionable," and counsel responded, "Right. That's not part of this motion." The trial court denied the motion, reasoning the police had reasonable justification to search the room. The officers knew Perkins was on probation and found contraband in the car. In addition, Perkins carried the keycard on her person and told police no one else was in the room. Once inside the room, the police only saw women's clothing, giving them reasonable cause to believe the items in the room were under Perkins's control and the right to search all the items. The police did not have to accept defendant's claim to the backpack, since it was "nondescript" and "could have been possessed by anybody."
On November 16, 2016, defendant pleaded no contest to possession for sale of heroin (Health & Saf. Code, § 11351; count one), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count two), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count three). He also admitted a prior serious felony (§§ 667, subds. (b)-(i), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). Per the parties' agreement, on December 16, 2016, the trial court imposed an aggregate term of 12 years 8 months in state prison.
Defendant filed a timely appeal.
DISCUSSION
Defendant contends the court erred in denying his motion to suppress. According to defendant, the prosecution failed to establish the police had information that Perkins was subject to a probation search condition that extended to the property inside the motel room. In the alternative, defendant argues his trial counsel rendered ineffective assistance of counsel by failing to raise the argument in the trial court. Defendant further argues the officers could not have objectively and reasonably believed that Perkins had joint access or control of the backpack, making it outside the scope of her consent. He also argues the search cannot be justified as an objectively reasonable mistake by the officers, the manner of the search was unreasonable, and no exigent circumstances existed to justify the search.
"Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards." (People v. Lenart (2004) 32 Cal.4th 1107, 1118.) "In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment." (Id. at p. 1119.) We consider whether the search was justified from the standpoint of an objectively reasonable police officer. (Ornelas v. United States (1996) 517 U.S. 690, 696 .)
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials." (People v. Parson (2008) 44 Cal.4th 332, 345, fn. omitted.) " '[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.' " (People v. Ayala (2000) 23 Cal.4th 225, 255.) "Defendant bears the burden of showing a legitimate expectation of privacy. [Citation.] Among the factors to be considered are ' " 'whether the defendant has a [property or] possessory interest in the . . . place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy[,] and whether he was legitimately on the premises.' " ' [Citation.]" (People v. Roybal (1998) 19 Cal.4th 481, 507.) "[Defendant] may not vicariously challenge the alleged violation of another's interests." (People v. Hoag (2000) 83 Cal.App.4th 1198, 1203.)
"When a defendant raises a challenge to the legality of a warrantless search or seizure, the People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement. [Citations.] A probation search is one of those exceptions. [Citations.] This is because a 'probationer . . . consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term,' except insofar as a search might be 'undertaken for harassment or . . . for arbitrary or capricious reasons.' " (People v. Romeo (2015) 240 Cal.App.4th 931, 939 (Romeo).) "A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent." (People v. Bravo (1987) 43 Cal.3d 600, 605.) Where a warrantless search is justified by a probation search condition, officers may also search common areas shared by nonprobationers, over which the probationer has complete or joint control. (People v. Smith (2002) 95 Cal.App.4th 912, 916, citing United States v. Matlock (1974) 415 U.S. 164, 171 [39 L.Ed.2d 242, 250].)
The "permissible scope of a probation search is circumscribed by the terms of the search clause, and the scope may vary." (Romeo, supra, 240 Cal.App.4th at p. 951; see also People v. Woods (1999) 21 Cal.4th 668, 674 [probationers may validly consent in advance to warrantless searches in exchange for opportunity to avoid service of a state prison term].) Thus, "mere knowledge that someone is on probation and subject to search, without more, may be insufficient where there is a challenge to the search." (Romeo, at pp. 951-952.)
1. Perkins's probation search conditions
Relying on Romeo, defendant contends the trial court's finding the search was lawful was not supported by sufficient evidence that Perkins's probation search conditions extended to the search of property or premises under her control. According to defendant, in addition to the officers' testimony that they believed Perkins was on "searchable probation," the prosecution was required to introduce evidence of the specific terms of her probation. The People contend defendant (1) has no standing to challenge Perkins's search conditions, and (2) forfeited the issue by failing to raise this in the trial court.
Regardless of whether defendant had standing to challenge the sufficiency of the prosecution's evidence establishing the search of the backpack was within the scope of Perkins's probation search conditions, he forfeited the issue by failing to raise it before the magistrate or the trial court. (People v. Redd (2010) 48 Cal.4th 691, 716 [" 'when defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion' "].) Although defendant argued in the trial court that the search was illegal, as the magistrate explained during the May 2016 hearing, the crux of defendant's argument was whether the officers "reasonably concluded that the backpack was jointly controlled," given defendant's statement that the backpack was his, and that the officers found it near the window, or close to where defendant was when they entered the motel room. Moreover, defense counsel informed the trial court during the July 2016 hearing that whether "entry into the motel room" was "objectionable," was, "not part of this motion." Because defendant did not put the prosecution on notice that he would challenge the sufficiency of the evidence regarding the specific terms of Perkins's probation, he has forfeited the issue on appeal.
In a related argument, defendant argues his trial counsel provided ineffective assistance of counsel by failing to object to the sufficiency of the prosecution's evidence regarding the terms of Perkins's probation. To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) Reversal is appropriate only if: "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) All other ineffective assistance of counsel claims, "are more appropriately resolved in a habeas corpus proceeding." (Mai, at p. 1009; see also Mendoza Tello, at p. 267.)
Assuming arguendo that counsel erred in failing to object to the prosecution's evidence regarding the terms of Perkins's probation, defendant's argument is based on the supposition that the prosecution was required to present evidence of Perkins's probation terms. Although Romeo acknowledged that presenting a probation order may be better practice, the court did not view such presentation as mandatory. (Romeo, supra, 240 Cal.App.4th at p. 952.) Moreover, it is likely that, if defendant had made such an objection in the trial court, the prosecution would have responded with evidence establishing the search conditions included Perkins's residence or places she was renting or staying at. Such evidence would have made the prosecution's case stronger. Thus, experienced counsel could rationally conclude the risks of an objection outweighed the benefits. Accordingly, we reject defendant's claim of ineffective assistance of counsel.
2. The record supports the officers' reasonable belief that the backpack was under Perkins's joint access or control
Defendant contends the search was unreasonable because the information available to the officers at the time of the search indicated the backpack belonged to defendant. Defendant argues there was no evidence Perkins knew defendant was in the motel room. In addition, the police found the backpack near the window, which was the same area where defendant was standing when they entered the room. According to defendant, no evidence contradicted his repeated claims of ownership.
"While those who associate with parolees or probationers must assume the risk that when they share ownership or possession with a parolee or probationer their privacy in these items might be violated, they do not abdicate all expectations of privacy in all personal property. The key question remains: whether there is joint ownership, control, or possession over the searched item with the parolee or probationer." (People v. Baker (2008) 164 Cal.App.4th 1152, 1159.) "The issue critical to consent is not whether the consenting party had actual access, but whether it was 'objectively reasonable for the searching officer to believe that the person giving consent had authority to do so . . . .' " (People v. Carreon (2016) 248 Cal.App.4th 866, 876.) Objective reasonableness is a question of law, not fact. (Ibid.)
The record supports the conclusion that the officers were entitled to enter the motel room. The officers knew Perkins was on searchable probation, based on Deputy Stafford's personal knowledge and the confirmation from the database. In addition, the officers had found heroin, methamphetamine, and evidence of drug sales in Perkins's purse. Perkins told the officers she had rented and was staying in room 227 and there was no one else in the room. The officers found a key card on her, which the motel verified as the room key. It was reasonable for the officers to continue their search for contraband in the motel room.
When the officers entered the motel room, they saw defendant, Gardner, and narcotics in plain view on the bed. Although defendant claimed ownership of the backpack and it was found in the general area where he had been standing, nothing else suggested the backpack was his. In Maggini's experience, people "frequently" lie about ownership of items that police intend to search. There were no distinctive markings or identification on the backpack and it was found near a pile of women's clothes. The rest of the room was also filled with women's clothes and other bags, and the officers searched all of the bags. Gardner identified some of the bags as hers and other items as Perkins's, but she did not identify anything as belonging to defendant. Gardner told the officers she had not noticed whether defendant had a backpack with him when he entered the room. In addition, Gardner confirmed Perkins's statement that Perkins was staying in the room. Under the circumstances, the officers could reasonably believe Perkins had joint control over the room and all its contents, including the backpack.
Given our conclusions, we need not reach defendant's argument that the exigent circumstances exception is inapplicable, nor whether the search can be justified as an objectively reasonable mistake by the officers.
3. The officers' manner of search was not unreasonable
Defendant contends the officers' manner of search was unreasonable and violated his Fourth Amendment rights. According to defendant, the officers should have asked the motel manager who was registered to the room and provided knock notice prior to entering the room, even though the manager confirmed Perkins's key card was for the room she identified as hers, and Perkins told the officers no one else was in the room. Defendant also argues the officers improperly entered the room with their guns drawn, despite their testimony that they did not have their guns drawn initially. According to Feldman, he briefly drew his gun when he saw defendant and Gardner but "put it back" when he realized their hands were empty.
These issues go to whether the officers unreasonably entered the room, and defense counsel informed the trial court during the July 2016 hearing that whether "entry into the motel room" was "objectionable," was, "not part of this motion." As such, defendant has forfeited the issue on appeal. (People v. Redd, supra, 48 Cal.4th at p. 716 [" 'when defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion' "].)
Regardless, we reject defendant's contentions. It was not unreasonable for the officers to assume Perkins had rented the motel room, given that she told Deputy Maggini she had done so and had a room key, which was verified by the motel manager as the correct key. In addition, it is not always necessary for officers to knock and announce, including if it would be " 'futile.' " (Hudson v. Michigan (2006) 547 U.S. 586, 589-590 .) Police only need a " 'reasonable suspicion . . . under the particular circumstances" that one of the grounds for failing to knock and announce exists, and courts "have acknowledged that '[t]his showing is not high.' " (Ibid.) Here, the officers had a reasonable suspicion no one was in the room, given that Perkins was detained and had told Maggini no one else was there. Moreover, the room was dark when Maggini approached, suggesting there was no one there.
Given our conclusions, we need not reach defendant's argument that the exigent circumstances exception is inapplicable.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.