Opinion
E051550
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS MARTINEZ, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF146788)
OPINION
APPEAL from the Superior Court of Riverside County. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A warrantless search of defendant Jose Luis Martinez's home revealed about 25 grams of methamphetamine in his closet. In a bathroom drawer, there were two digital scales, "both with a white crystalline substance on them," and "numerous" one inch square baggies. Defendant was carrying $932, mostly in $20 bills. He admitted to the police that the methamphetamine was his and that he was selling it. At trial, however, he testified that it belonged to his brother.
A jury found defendant guilty on one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) He admitted one "strike" prior. (Pen. Code, § 667, subds. (b)-(i), 1170.12.) As a result, he was sentenced to four years (double the midterm) in prison, along with the usual fees and fines.
At the same time, defendant's probation in a previous case was revoked and he was sentenced for that offense. He did not file any notice of appeal in that case.
Defendant contends that the search of his home was neither a valid consent search nor a valid probation search. We will hold that it was valid on both theories. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant filed a written motion to suppress, asserting that the warrantless search was presumptively invalid. The People filed a written opposition, arguing, among other things, that defendant validly consented to the search and that the search was a valid probation search.
The trial court held an evidentiary hearing. The evidence at the hearing showed the following.
Deputy Frank Tiburzio asked Deputy Jeremy Harding to contact defendant. When Deputy Harding arrived at defendant's home, he found defendant standing by his pickup truck outside the "perimeter gate." He walked up to defendant and asked if he could talk to him. Defendant said yes.
Deputy Harding asked defendant if he was on probation or parole. Defendant said he was on probation. Deputy Harding then asked defendant if he could search "his person, [his] vehicle [and his] residence." Defendant said yes. Deputy Harding therefore conducted a patdown search. The patdown search did not produce "any contraband or weapons."
Deputy Harding "ran [defendant's] name through dispatch" and confirmed that he was on probation, but he was not able to determine whether defendant had any search terms. Deputy Harding called Deputy Tiburzio, who said he would look into whether defendant had search terms.
Deputy Harding handcuffed defendant and had him sit in the back of his patrol car. He summoned other officers to the scene. Meanwhile, he asked defendant to sign a written consent to search his person and property. Defendant complied. The officers then "cleared the residence" — i.e., they entered the home and searched it "to make sure there [wa]s no one there," "for officer safety."
Deputy Tiburzio learned from the superior court website that defendant did have probation search terms. Specifically, defendant was subject to an immediate search of his person or property. Deputy Tiburzio called Deputy Harding and informed him that defendant had search terms. This occurred approximately five to ten minutes after officers had already entered the home, but before they had yet found any "contraband."
At the end of the hearing, the trial court denied the motion, ruling that defendant consented to the search voluntarily (albeit while in custody) and that the search was also valid as a probation search.
II
DISCUSSION
A. General Legal Principles.
"In reviewing a suppression ruling, 'we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.]' [Citation.]" (People v. Lomax (2010) 49 Cal.4th 530, 563.) "[W]e consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision. [Citations.]" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
"Under the current provisions of the California Constitution, evidence sought to be introduced at a criminal trial is subject to suppression as the fruit of an unconstitutional search and seizure 'only if exclusion is . . . mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment . . . .' [Citation.]" (People v. Maikhio (2011) 51 Cal.4th 1074, 1089.) "The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials. Because a warrantless entry into a home to conduct a search and seizure is presumptively unreasonable under the Fourth Amendment [citation], the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. [Citation.]" (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. omitted.)
B. The Search as a Consent Search.
"It is settled that when voluntary consent to search has been given by the individual whose property is searched, the requirement of a search warrant is excused. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 466.) Here, the evidence amply established that defendant consented to search.
Defendant argues that his consent was involuntary and ineffective because it was given while he was unlawfully detained. Admittedly, the trial court found that defendant consented while he was in custody. It is crucial, however, to distinguish between defendant's oral consent and his written consent; the written consent was given while he was in custody, but the oral consent was not.
When Deputy Harding first contacted defendant, defendant was not detained. "Unlike a detention, a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment. It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so. There is no Fourth Amendment violation as long as circumstances are such that a reasonable person would feel free to leave or end the encounter. [Citations.]" (People v. Rivera (2007) 41 Cal.4th 304, 309.) Defendant could have simply declined Deputy Harding's request to talk to him.
During this initial, consensual encounter, Deputy Harding asked defendant if he could search his person and his home, and defendant said yes. It was only after that that Deputy Harding patted defendant down, handcuffed him, and placed him in the patrol car. None of this vitiated the oral consent to search that defendant had already given.
In his brief, defendant states, " . . . Deputy Harding conducted a pat down search of appellant's person. Harding then asked appellant if he could conduct a search of his person and residence and appellant said yes." (Italics added.) This misstates the record. It is crystal clear that Deputy Harding obtained defendant's oral consent to search first, and only then conducted the patdown.
After being placed in the patrol car, defendant also gave written consent to search. Legally, however, written consent was unnecessary. It simply served to memorialize, for evidentiary purposes, the oral consent that defendant had already given. It does not appear that it added any terms to the oral consent. The fact that defendant did give oral consent was uncontradicted. Thus, we need not decide whether he was lawfully detained or whether the written consent was either voluntary or valid.
In his reply brief, defendant argues that validity of the written consent is at issue, because it "appears" that the officers waited until they had written consent before searching his home, and thus it "appears" that they "relied" on it. This is, at most, only one possible inference from the record. More likely, the officers already had a belt, but they waited until they had suspenders. As noted previously, obtaining written consent was prudent, though not indispensable, because it memorialized the oral consent. In any event, focusing on the officers' subjective reliance "is fundamentally inconsistent with our Fourth Amendment jurisprudence. 'Our cases have repeatedly rejected' a subjective approach, asking only whether 'the circumstances, viewed objectively, justify the action.' [Citations.]" (Kentucky v. King (2011) __ U.S. _ , ______ [131 S.Ct. 1849, 1859, 179 L.Ed.2d 865.) Objectively, the officers had oral consent.
C. The Search as a Probation Search.
Separately and alternatively, the search of defendant's home was also valid as a probation search. "In California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term. [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 674-675, fn. omitted.)
A probation search, however, cannot be valid "if the officer is unaware that the suspect is on [probation] and subject to a search condition. Despite the [probationer]'s diminished expectation of privacy, such a search cannot be justified as a [probation] search, because the officer is not acting pursuant to the conditions of [probation]." (People v. Sanders (2003) 31 Cal.4th 318, 333 [parole search condition]; accord, In re Jaime P. (2006) 40 Cal.4th 128, 132-139 [juvenile probation search condition].) "[A] search cannot be validated by the discovery, after the fact, that the defendant was subject to a probation or parole search condition. [Citation.]" (People v. Brendlin (2008) 45 Cal.4th 262, 272-273.)
We may assume, without deciding, that the initial entry into defendant's home and whatever search then took place to "clear the location" were unconstitutional. Even if so, that search did not produce any contraband. It was only afterward that the officers learned that defendant was subject to a probation search condition. This authorized the subsequent search that did produce the contraband. Nothing that the officers did or found in the initial search seems to have had any effect on the subsequent search; it merely eliminated the need to check for other persons in the home. Thus, the initial search, even if unconstitutional, did not taint the subsequent search.
Segura v. United States (1984) 468 U.S. 796 [104 S.Ct. 3380, 82 L.Ed.2d 599] is all but on point. There, the police arrested one of the two defendants, then entered their apartment to secure it until they could obtain a search warrant. (Id. at p. 800.) When they checked it to see if anyone else was in the home, they saw evidence of drug trafficking in plain view. (Id. at pp. 800-801.) A search warrant was issued, based on an affidavit that did not mention any information obtained as a result of the entry. (Id. at pp. 801, 814.) Some 19 hours after the initial entry, the apartment was searched pursuant to the warrant; drugs and other evidence, including the evidence the officers had already seen, were seized. (Id. at p. 801.)
The Supreme Court accepted that the initial entry was unconstitutional. (Segura v. United States, supra, 468 U.S. at p. 804.) It held, however: "[T]he evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as 'fruit' of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence . . . ." (Id. at p. 799.) Here, identically, the evidence discovered during the valid probation search need not be suppressed, because the probation search was unrelated to the earlier entry.
Defendant argues that we should not apply the independent source doctrine, because the same officers performed both the initial search and the subsequent search. He argues that "a question arises as to whether the deputies were prompted to perform [the subsequent search] by the [initial] illegal [search]." However, there is no evidence that this occurred. To the contrary, Deputy Harding asked Deputy Tiburzio to check whether defendant had search terms before any of the officers had yet entered the home. It seems clear that, if it turned out that defendant did have search terms, the officers were going to search the home, regardless of what they found or did not find while "clearing the location."
Defendant also critiques the independent source doctrine itself. He relies heavily on Commonwealth v. Melendez (Pa. 1996) 676 A.2d 226, which held, as a matter of the Pennsylvania Constitution, that "'[a]pplication of the "independent source doctrine" is proper only in the very limited circumstances where the "independent source" is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.'" (Id. at p. 231, italics omitted.) We, however, must follow the federal Constitution, including Segura, which does not include any such limitation.
For the sake of completeness, we note that our holding that the search of defendant's home was a valid probation search does not extend to the patdown. Of course, as we have already held, the patdown was a valid consent search. For the sake of argument, however, if the patdown was not a valid consent search, it also was not a valid probation search, because Deputy Harding did not know yet that defendant had search terms.
The invalidity of the patdown, standing alone, however, would not require reversal, for two reasons. First, the trial court was never asked to suppress any fruits of the patdown. At the suppression hearing, Deputy Harding testified that it produced no "contraband." Thus, defendant raised no issue regarding the patdown.
By contrast, at trial, Deputy Harding testified that in the patdown, he found $932, mostly in $20 bills, and that this was evidence that defendant possessed the methamphetamine with the intent to sell. Startlingly, he even testified that he found unspecified "drugs" in the patdown. Even so, defendant did not object, move for a mistrial, or renew his suppression motion. There is simply no ruling regarding the patdown for us to review.
Second, and alternatively, even in this appeal, defendant has not challenged the patdown separately. He does not argue that, even assuming the search of the house was valid as a probation search, the fruits of the patdown still should have been suppressed. We deem any such contention forfeited.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.