Opinion
B271014
09-15-2017
THE PEOPLE, Plaintiff and Respondent, v. FEDERICO EDSON OSUNA, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, and Shepard S. Kopp, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA434743) APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, and Shepard S. Kopp, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Federico Edson Osuna entered pleas of no contest to possession of a controlled substance (cocaine) for sale (count 1), and possession of a controlled substance (heroin) for sale (count 2), with an admission as to count 1 that the cocaine exceeded 20 kilograms. (Health & Saf. Code, §§ 11351, 11370.4, subd. (a)(4).) His pleas were entered following the denial of a suppression motion. (Pen. Code, § 1538.5.) Appellant appeals from the judgment entered following his pleas and admission, challenging the ruling on his suppression motion. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
1. Appellant's Motion
On October 15, 2015, appellant filed a suppression motion pursuant to Penal Code section 1538.5. Appellant argued that the police conducted an unlawful warrantless search of his garage, requiring suppression of the narcotics found inside. The prosecution filed opposition to the motion, contending the police obtained valid consent from appellant and his wife, and the search was conducted within the scope of the consent they provided.
2. Suppression Hearing Evidence
Appellant's motion was heard on November 9, 2015. The prosecution called four witnesses, and the defense presented no evidence.
a. Officer Puente
Bell Gardens Police Officer Angel Puente testified that about 7:30 p.m. on March 19, 2015, he went to the residence in South Gate, as part of a multi-agency narcotics task force. He and Detective Berg went to the door and spoke with V.P. V.P. said the residence was hers, her parents resided with her, her child was there, and her parents were in the back house. V.P. also mentioned that she and appellant lived together as a couple.
Puente said the residence of appellant and V.P. was a single-family dwelling, the rear portion of which had been converted into a back house where V.P.'s parents lived. A long driveway led to the back of the property and two garages. The north garage belonged to the parents and the south garage belonged to V.P. and appellant.
Puente told V.P. his team was conducting an investigation and he asked if she possessed narcotics or guns in her residence. V.P. said she did not and she appeared to be shocked by the question. Puente asked for consent to search the residence and garage, and V.P. gave Puente oral consent. Puente then read V.P. a written consent form, which authorized a "complete search of the above described person(s), place(s) and/or thing(s)," specifying the premises at the San Miguel address, V.P.'s person, and the personal property "at residence and garage." V.P. signed the consent form within 10 minutes of Puente's arrival. Puente and Berg were inside the residence when they obtained the written consent; everyone else was outside.
Puente testified, "[t]here was an attempt to get into the garage for five, ten minutes, and then the father went to help out." After entry, the police conducted a canine search and found 48 kilograms of cocaine and 10 kilograms of heroin in the south garage belonging to V.P. and appellant.
Puente was not present when the officers entered the garage. He was on the property, talking to V.P.'s father "near the north side of the garage where entry was attempted into the south garage." Puente testified "[Santa Monica Police Officer Brian Spencer] was with . . . [V.P.'s] father when they gained entry." Puente went to the garage and saw the garage door open and broken glass on the ground. One of the windows in the front of the garage was broken.
Appellant was at work when the police found the narcotics. Team detectives contacted appellant at his workplace, advised him of his Miranda rights, and brought him to the residence about an hour after Puente's arrival. At the residence, appellant was readvised of his Miranda rights and waived them. Puente and appellant stood in the driveway behind the house; Puente pointed at the garage, where the narcotics were "laid out," and questioned appellant about them. The garage was lit and it was "a clear shot to the entire interior of the garage." Appellant could see the narcotics as Puente was questioning him. In response to Puente's questions, appellant said he obtained some of the narcotics in a shipment received that day and the rest in a shipment received the day before.
Miranda v. Arizona (1966) 384 U.S. 436 .
b. Detective Bellante
Culver City Police Detective Andrew Bellante testified that he was also a member of the task force. About 7:30 p.m. on March 19, 2015, Bellante and another detective spoke with appellant at a Burger King in South Gate. Bellante told appellant that the detectives were conducting a narcotics investigation at appellant's residence, and he asked for permission to search appellant's residence. Appellant gave his consent. Appellant also signed a written consent to search, in the same format as the form used with V.P. The consent form authorized a "complete search," listing the premises at the San Miguel address and a vehicle.
Bellante knew the other officers were then at appellant's residence, and he told Puente by telephone that appellant had given consent to search. Bellante was with appellant at the Burger King between 30 and 45 minutes before he transported appellant to the residence. When the two arrived, he escorted appellant up the driveway and delivered him to Puente.
c. Officer Cheever
California Highway Patrol Officer Richard Cheever testified that he was a canine officer, who handled a trained and certified narcotics dog. Cheever and his dog conducted a search of the residence and garage at the San Miguel address. The dog alerted, and narcotics were found inside the garage in a pile of boxes near the rear wall.
Cheever was present when the officers entered the garage. He said a window was removed to unlock the door opening mechanism inside the garage. The court asked how the window was removed, and Cheever testified, "when the investigators or detectives were there, they were trying to open the window to gain access to the opener, and during that process, the window did break." The court asked, "They broke it?" Cheever replied, "I would say unintentionally, they broke it."
Cheever identified Officer Spencer as the police officer who broke the garage window. When Spencer broke the window, a man whom Cheever identified (incorrectly) as appellant's father was standing in the area and talking with the officers.
d. Officer Spencer
Santa Monica Police Officer Brian Spencer participated in the search of the San Miguel residence. He said the police gained entry to the garage as follows: "A windowpane was removed or attempted to be removed. In the removal process, it shattered. We were able to reach through and unlock the garage."
Spencer said V.P.'s father was in the area when this occurred. A few minutes earlier Spencer asked the father how to gain access to the garage, and the father responded that "the only access would be we'd have to get ahold of [appellant], or he could remove the window and reach in and pull the mechanical lever that would unlock the garage." Spencer was asked, "And so was it the father - the father-in-law Mr. Osuna [sic] had suggested to try to access through the window?" And Spencer answered, "Yes."
Spencer was asked how he tried to remove the window, and he responded, "Using a screwdriver to lift the pane out of the actual frame of the garage door." Spencer explained that the window had a metal frame that went around the pane of glass, and "I used the screwdriver almost like a lever to lift it up and out of the frame . . . ." Spencer was asked, "And it was in that process that the pane broke?" He answered, "Shattered, yes, sir. [¶] . . . [¶] . . . I tried to pry it." Spencer added that once the windowpane shattered, he reached in and pulled a rope that released the door mechanism and the officers were able to lift the door by hand.
Spencer said at some point that evening he had been told appellant had the garage door opener. Spencer knew Bellante had been assigned to detain and question appellant at his workplace, but he was not aware appellant had in fact been detained and did not know whether appellant had been contacted at the time Spencer was at the garage.
3. Argument and Ruling
Following the presentation of evidence, the hearing was continued to permit additional briefing. After supplemental briefs were filed, the hearing resumed on December 7, 2015. At the beginning of the hearing, the court said, "we're dealing with a very narrow issue of when they attempted to remove a window and the window broke, if that nullifies everything or not."
Defense counsel argued that attempting to pry out a glass pane was "likely to damage or destroy property," and "I don't think any reasonable person would understand those written consent waivers to include damage or destruction of property." The court responded, "I would agree that to go in and intentionally break or destroy, probably not envisioned. I don't agree with you. I don't believe this is the officer's intent. If they wanted to break a window, they wouldn't have tried to remove the pane or whatever they did with the screwdriver. They would have just knocked it in." The prosecutor argued appellant and his wife gave consent to do a "complete search" of the house and garage, and the fact the window inadvertently broke when the police were trying to conduct the search did not mean it exceeded the scope of the consent.
In rebuttal, defense counsel reiterated that "no one reasonably understands when they give consent that they are permitting an officer to damage or destroy their property." The court was not persuaded and replied, "I agree with you there, but an accident occurred, if you will. Something was inadvertent and not intended, and I don't think that negates the consent and the subsequent search. [¶] So the motion pursuant to 1538.5 is denied."
DISCUSSION
When reviewing a ruling on a Penal Code section 1538.5 suppression motion, we defer to the trial court's express and implied factual findings to the extent they are supported by substantial evidence, and exercise our independent judgment as to whether a search or seizure was reasonable under the Fourth Amendment based on the facts so found. (People v. Suff (2014) 58 Cal.4th 1013, 1053.) Where 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.) We review the trial court's ruling, not its reasoning, and will affirm an order denying a motion to suppress if it is correct on any theory of law applicable to the case. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Appellant claims the trial court erroneously denied his suppression motion, because the police exceeded the scope of the consent to search. Appellant acknowledges that he and his wife both consented to a search of their entire residence, including the garage. But as defense counsel did below, appellant argues that the scope of the consent was exceeded because the police broke the window while gaining entry to the garage.
Appellant's counsel originally filed a brief in this matter pursuant to People v. Wende (1979) 25 Cal.3d 436. On October 5, 2016, we requested briefing on issues pertaining to consent to search, scope of consent, and whether the trial court erred by denying appellant's suppression motion. We have received and considered the parties' briefs.
The proper scope of a consensual search is determined by the standard of "objective reasonableness." As the United States Supreme Court has observed, "we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. [Citation.] The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]" (Florida v. Jimeno (1991) 500 U.S. 248, 250-251; accord, People v. Tully (2012) 54 Cal.4th 952, 983-984 (Tully).)
As our Supreme Court has noted, "courts and commentators have observed that open-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way, and that a general consent to search includes consent to pursue the stated object of the search by opening closed containers." (People v. Jenkins (2000) 22 Cal.4th 900, 975.) " 'Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of [the] circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination.' [Citations.]" (Tully, supra, 54 Cal.4th at pp. 983-984.)
Judged by these principles, the police conduct in this case was objectively reasonable. Appellant and his wife consented to a "complete search" of their garage, and the officers were simply trying to gain access to the area of their consent. Appellant has offered no legal authority and no persuasive argument why the scope of consent is exceeded by inadvertent property damage occurring during that process. As the trial court aptly observed, a person consenting to search would not reasonably expect the police to intentionally destroy their property, but accidental damage of a limited nature is an entirely different matter.
Even appellant has conceded that "[a]ttempting to pry the window frame loose from the garage frame, in itself, probably did not exceed the scope of [appellant's] general consent to search, assuming that the police could and would have returned the window to its original condition." But appellant has provided no convincing reason why accidental damage to the window should invalidate appellant's consent and make the search unlawful.
It is significant that the specific means of entry into the garage was suggested by a resident of the property and a member of appellant's own family. The officers merely followed the suggestion of V.P.'s father that they "could remove the window and reach in and pull the mechanical lever that would unlock the garage." This was reasonable under the circumstances. (See United States v. Matlock (1974) 415 U.S. 164, 171 [valid consent can be shown by evidence that "permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected"]; People v. Gorg (1955) 45 Cal.2d 776, 783; In re D.C. (2010) 188 Cal.App.4th 978, 983.)
Appellant has relied on cases involving police officers who unlawfully extended the area of a consensual search by intentionally opening sealed containers or enclosed spaces. (See United States v. Osage (10th Cir. 2000) 235 F.3d 518, 519 [intentionally opening a sealed can in a suitcase]; United States v. Strickland (11th Cir. 1990) 902 F.2d 937, 939 [intentionally slashing a spare tire in a car trunk]; People v. Cantor (2007) 149 Cal.App.4th 961, 964 [intentionally opening a wooden box in the trunk of a car].) Nothing like that was involved in this case. The officers did not extend the area of the search; they gained access to the area of consent. And the officers did not act intentionally; they accidentally shattered the garage window.
There are also many contrary cases involving police officers who lawfully extended the area of a consensual search by intentionally opening sealed containers or enclosed spaces. (See People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1511 [search of area behind a truck bed liner]; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1409 [removing vent cover on door post in car]; United States v. Marquez (10th Cir. 2003) 337 F.3d 1203, 1206 [prying open RV storage compartment]; United States v. Flores (5th Cir. 1995) 63 F.3d 1342, 1362 [removing vent covers from interior panel of car]; United States v. Long (9th Cir. 1975) 524 F.2d 660, 661 [removing window of storage building].)
All the cases in this area - those which upheld as well as those which invalidated the scope of consensual searches - have evaluated the officers' conduct under the standard of "objective reasonableness." The trial court found the evidence in this case establishes objectively reasonable conduct by the police. For the reasons we have explained, that determination was fully supported by the evidence and the law.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON (MICHAEL), J. We concur:
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
EDMON, P. J.
LAVIN, J.