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People v. Lott

California Court of Appeals, Second District, Seventh Division
Sep 12, 2007
No. B190728 (Cal. Ct. App. Sep. 12, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TARRUS MARICK LOTT, Defendant and Appellant. B190728 California Court of Appeal, Second District, Seventh Division September 12, 2007

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle, Judge, Los Angeles County Super. Ct. Nos. TA064712, TA082355

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

ZELON, J.

Tarrus Marick Lott pleaded no contest to one count of possession for sale of cocaine for which he received a two-year state prison sentence. Lott appeals from an order denying his motion to suppress evidence, contending that the entry into his apartment was not supported by exigent circumstances (Pen. Code, § 1538.5). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged Lott with possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and specially alleged he had suffered a prior serious or violent felony juvenile adjudication within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(d); 1170.12, subds. (a)-(d)). Lott filed a motion to suppress the evidence seized from his apartment.

The prosecution’s evidence at the suppression hearing was that Los Angeles County Sheriff’s Deputy Aaron Gutierrez and his partner Deputy Brandon Dean arrived at an apartment in response to “a 911 hang-up call” on the night of December 4, 2005. When the deputies were within 20 feet of the apartment, Deputy Gutierrez heard “a male voice yelling, a female voice screaming, and a child [sic] voice crying.” Based on what he was hearing and his experience, Deputy Gutierrez suspected that a domestic assault was occurring.

Deputy Gutierrez knocked on the apartment’s front door several times, first with his hand and then with his flashlight, and announced his presence, stating “Sheriff’s Department, Sheriff’s Department.” The sounds of yelling, screaming, and crying continued uninterrupted; no one came to the door. Deputy Gutierrez turned the doorknob to see whether the front door was unlocked to enable him and his partner to intervene in the suspected assault and to help any victim(s). The door was unlocked, and Deputy Gutierrez opened it to discover Lott yelling as he pushed against a bedroom door to force it open. Sounds of a woman screaming and a child crying were coming from inside the bedroom. It also appeared that someone inside the bedroom was pushing back against the door to prevent Lott from opening it.

Deputy Gutierrez entered the apartment, walked directly to Lott, touched him on the shoulder and stated, “Sheriff’s Department. Stop what you’re doing. Stop.” Lott stopped pushing against the bedroom door. As Deputy Gutierrez grabbed his arm, Lott threw down some rock cocaine. The bedroom door was slightly open, and the rock cocaine landed on the floor and on a table inside the bedroom.

Deputy Gutierrez took Lott into custody and escorted him to the front room of the apartment. Deputy Dean identified himself and opened the bedroom door. Two women and two children were inside the bedroom. They all appeared to be upset; the children were crying. Lott told the deputies that what they had heard was just an argument over who should have some car keys.

Two witnesses appeared in Lott’s defense. His mother, Willie May Perry testified that she lived in the apartment in Compton and that Lott stayed with her sometimes. On the night of December 4, 2005, Lott, his girlfriend Nisa, and two young children were with Perry. There was an argument over some car keys, but it involved neither physical force nor threats of physical force or violence. At some point, Perry told Lott to leave the apartment to “go cool off.” As Lott was leaving, Perry called 911, but she hung up the phone as soon as he was gone and then locked the front door.

Lott returned, knocked on the front door and it was opened by one of the children. The argument over the keys resumed. Perry testified that she was upset that night and “could have been a little loud,” and that her son was shouting, but he “wasn’t that loud.” Perry did not recall whether the children were crying before the deputies arrived. Perry did not notice anything in Lott’s hands or see him discard anything that night. After Lott had been handcuffed, one of the deputies reached behind Perry’s nightstand and retrieved a baggie containing some rock cocaine that Perry denied belonged to her.

Lott’s girlfriend, Nisa Peters, was the second defense witness. She testified there was no argument or “loud talking” that night, instead merely a discussion between Lott and his mother about some missing car keys that everyone was attempting to find. The two children were playing as usual, but they began to cry when the deputies arrived and forced Lott to the floor. Peters never saw Lott throw or drop anything. Nor did she see the deputies recover anything. Peters never heard the deputies knock on the front door or announce themselves; they just entered the apartment and grabbed Lott.

At the conclusion of the hearing, the court framed the issue as whether the deputies’s warrantless entry was justified by exigent circumstances. After the court heard counsels’ lengthy argument, it denied the motion, finding the deputies’ reasonable belief there was an ongoing domestic assault inside the apartment justified their warrantless entry.

After the denial of his motion to suppress evidence, Lott withdrew his premotion plea of not guilty and, in accordance with a negotiated agreement, waived his constitutional rights, and pleaded no contest to an amended count of possession for sale of cocaine (Health & Saf. Code, § 11351). Pursuant to the plea bargain, the charge of possession for sale of cocaine base and the prior strike allegation were dismissed on the People’s motion. Lott was sentenced to the lower term of two years in the state prison.

As a result of his arrest in this case (Los Angeles Superior Court case No. TA082355), Lott’s probation in Los Angeles Superior Court case No. TA064712 was revoked and the matter was to be set for a probation violation hearing. However, as part of his plea bargain in case No. TA082355, Lott was found to be in violation of probation in case No. TA064712 (in which imposition of sentence was originally suspended) and Lott was sentenced to a concurrent state prison term of two years. Lott filed a notice of appeal from the judgments in both cases.

DISCUSSION

Lott contends the trial court should have granted his motion to suppress because sheriff’s deputies had no right to enter the apartment without a search warrant, and their warrantless entry was not supported by exigent circumstances.

In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Brendlin at p. 1113; People v. Ramos (2004) 34 Cal.4th 494, 505.)

Although warrantless searches of a residence are presumptively unreasonable, federal and state constitutional standards both recognize warrantless entries are justified under certain types of exigent or emergency circumstances. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [98 S.Ct. 2408, 57 L.Ed.2d 290].) Most importantly for our purposes, the United States Supreme Court has held “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Brigham City v. Stuart (2006) ___ U.S. ___ [126 S.Ct. 1943, 1946, 164 L.Ed.2d 650].) Exigent circumstances justifying warrantless entry have been found to exist in domestic disturbance cases unless entry is unnecessary based on information made available at the scene. (People v. Higgins (1994) 26 Cal.App.4th 247, 252 (Higgins). As Lott contends, a warrantless entry cannot be justified by a general rule or blanket assumption that domestic disturbances are always dangerous. Dependent on factors found at the scene, exigent circumstances can exist in domestic disturbance cases because they “‘commonly involve dangerous situations in which the possibility for physical harm or damage escalates rapidly.’ [Citation.]” (Ibid.)

According to Lott there was insufficient evidence to support the trial court’s finding that the immediate warrantless entry into the apartment was reasonable under the circumstances. Specifically, Lott argues the trial court’s reliance on Higgins, supra, 26 Cal.App.4th 247 and People v. Neighbors (1994) 223 Cal.App.3d 1115 (Neighbors) to deny the motion to suppress was misplaced because unlike the officers in those cases, in this case the sheriff’s department had received no reports of domestic violence occurring at the apartment, and the arriving deputies did not perceive any signs of physical violence or imminent harm. Instead, Deputies Gutierrez and Dean only heard “some loud voices” as they stood outside the apartment, which did not constitute exigent circumstances requiring their warrantless entry.

We agree with the trial court that while the circumstances here may not be as compelling as those of Higgins and Neighbors, they were sufficient for the deputies reasonably to conclude that their immediate entry was necessary to stop an on-going domestic assault. In Higgins, officers responded to a report of a domestic disturbance involving “‘a man shoving a woman around.’” (Higgins, supra, 26 Cal.App.4th at p. 249.) Upon arrival, they saw a man inside the residence, heard a shout and knocked on the door. They were met by a frightened, nervous woman with marks on her face indicative of having been recently struck or slapped. (Ibid.) She claimed she was all right, had fallen down the stairs, and her boyfriend had left. (Id. at p. 250.) Believing she was a victim of domestic violence, the officers entered, discovered marijuana in plain view, and arrested the boyfriend. (Id. at pp. 249, 251-252.) The trial court determined the officers’ belief the woman had been injured and was under the threat of continued violence was reasonable and their warrantless entry was justified. (Id. at p. 255.)

In Neighbors, police responded to a call of an assault with a deadly weapon at a residence. (Neighbors, supra, 223 Cal.App.3d at p. 1121.) The victim, a baby, had been severely cut on the face. The mother said that a man had broken a bottle over the baby’s head while they were visiting his residence. (Ibid.) The mother’s friend told police the man was intoxicated and had another child, possibly his son, with him at his residence. (Ibid.) The officers went to the man’s residence, saw blood and glass on the front porch and steps of the residence, and knocked on the front door, announcing themselves. They received no response, although one officer saw someone inside the residence. (Ibid.) That officer kicked in the door of the residence, believing forced entry was necessary for the safety of another child inside and to preserve evidence. The defendant was standing inside, holding a rifle pointed at police. (Ibid.) He was arrested. The child was found in a bedroom. (Id. at pp. 1121-1122.) The trial court determined the entry by police into defendant’s residence was justified by exigent circumstances consisting of a reasonable perception of immediate danger to a child. (Id. at p. 1123.)

Here, merely because the deputies did not arrive in response to a domestic violence report, or witness domestic violence or its resulting injuries, or speak with a victim prior to entering the residence does not mean their conduct was unreasonable under the Fourth Amendment. “‘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.’” (Higgins, supra, 26 Cal.App.4th at p. 251.)

Deputies Gutierrez and his partner were responding to a 911 hang-up call traced to a particular apartment. They arrived to hear a man yelling, a woman screaming, and a child crying, the “tone” or nature of which suggested a domestic assault was in progress. When Deputy Gutierrez’s repeated knocks and announcements of his presence went unanswered, and the sounds of the assault continued unabated, it was reasonable for the deputies to assume the victims were already seriously injured and/or under imminent threat of serious injury. Indeed, as the trial court noted, one reason for the 911 hang-up call could have been the caller was forced by someone else to terminate the call. With this in mind, the fact the deputies could only hear the sounds they attributed to possible domestic violence without being able to see what was occurring or to speak with anyone involved before they entered the apartment, actually strengthened the reasonableness of their decision to do so. The motion to suppress was properly denied.

The trial court reasoned, “All right. Factually, it appears as though - - and I think this is important. They got the 9-1-1 call, which was a hang-up. That can go down, I think, to the detriment to the offense [sic] more so at the time from [sic] a call of domestic violence occurring. It could be reasonable to infer that when they have a hang-up, that the hang-up is due to, not a volitional act on the person [sic] making the call, but a non-volitional act from another person forcing them to hang the phone up.”

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P. J., JOHNSON, J.


Summaries of

People v. Lott

California Court of Appeals, Second District, Seventh Division
Sep 12, 2007
No. B190728 (Cal. Ct. App. Sep. 12, 2007)
Case details for

People v. Lott

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TARRUS MARICK LOTT, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 12, 2007

Citations

No. B190728 (Cal. Ct. App. Sep. 12, 2007)