Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR202609
Haerle, J.
I. INTRODUCTION
After his arrest in March 2009 for felony possession of cocaine, appellant pled no contest and was granted 3 years probation, with three months to be served in county jail. He appeals, claiming the arresting officer unlawfully entered the yard of his residence to detain him and that, accordingly, the trial court erred in denying his motion to suppress. We reject appellant’s argument and hence affirm his conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
During the mid-afternoon of March 28, 2009, Officer Kent Tribble of the Vallejo Police Department’s “special operations section” and other officers of that unit arrived at the 1200 block of Ohio Street in Vallejo in response to “numerous complaints to the watch commander’s office that day and reports from patrol officers” of “suspected drug activity” in that location.
All further dates noted are in 2009, unless otherwise stated.
Before getting into the events of that day, Tribble explained at the suppression motion hearing that the Vallejo Police Department’s special operations section “is a group of detectives that are assigned specifically to proactive enforcement and primarily drug-related street level drug dealing and mid level drug dealing.” He also explained that the area in question, the 1200 block of Ohio Street “is known to have a large amount of activity out front, ” is “associated with drug behavior, ” and that there are “adjacent residences that have been reported by citizens to have a lot of traffic in and out at all hours of the night.” Tribble’s unit had also made its own “personal observations from patrolling these areas, ” observations which were “consistent with narcotics activity” including persons “that have been arrested and apprehended by us for drug-related crimes, including possession and possession for sales, firearms possession, [and] numerous contacts over the last year or so.”
When, on the afternoon in question, Tribble and his colleagues got close to the 1200 block of Ohio Street, they saw “a couple of groups of people clustered around vehicles” on both sides of the block. Such, he continued, often indicated “people selling on the street, through vehicle windows.”
Tribble testified that he then saw appellant at that location, specifically on “the second step up of the porch of 1215 Ohio Street, ” a location at which there were also “two individuals around a white car that was parked parallel” to that house. Tribble was well familiar with appellant, having had “prior contact” with him as well due to shared information within the special operations section. More specifically, Tribble was aware “from personal experience that [appellant] had been contacted in prior drug-related investigations in that area and that he also had an arrest record involving weapons and violence.”
As soon as appellant saw Tribble, according to the latter’s testimony, appellant “looked shocked. Immediately his eyes got wide, he stood up and dropped a couple items on the porch, ran in through a security gate to the front door of the residence and pulled the security gate closed behind him.” Tribble promptly “ran to the west side fence separating the rear yard from the front and went over the fence toward the back of the residence anticipating his [i.e., appellant’s] exit out the back of the house.”
Once Tribble got into the back yard of the house (a single family residence), he saw appellant running through the yard and then throw “an object... over the south fence of 1215 Ohio.” That object, retrieved shortly thereafter by another officer, was found to be a bag containing 25 individually wrapped pieces of rock cocaine.
Appellant was, apparently, then promptly arrested. On June 1, he was charged by information with one count of possession of cocaine for sale, in violation to Health and Safety Code section 11351.5.
On June 24, appellant filed a motion to suppress; the District Attorney filed an opposition thereto on July 2 and the motion was argued to the trial court on July 10. That court denied the motion.
On June 10, 2010, appellant entered a plea of no contest. The same day, the court ordered him placed on probation for a term of three years, but also required him to serve 90 days in county jail and imposed various fines and fees. On July 15, 2010, the court awarded appellant 13 days of presentence custody credits.
Appellant filed a notice of appeal on or about June 21, 2010. That notice specifically states that it is based on the trial court’s denial of appellant’s section 1538.5 motion.
III. DISCUSSION
Both in the court below and here, appellant argues that there were no “exigent circumstances” requiring Officer Tribble to enter into the yard of the residence where, apparently, appellant then lived. We disagree: there surely were, namely appellant’s attempt to flee after seeing Officer Trimble.
In the trial court, appellant’s counsel argued that the improper entrance was to appellant’s “home.” In this court, his appellate counsel is more accurate by referring to the entrance as being to “the curtilage.”
The pertinent law regarding warrantless entry into a home or its curtilage was made clear by the United States Supreme Court in Minnesota v. Olson (1990) 495 U.S. 91 (Olson), where the Court approved the holding of the Minnesota Supreme Court that “exigent circumstances” specifically included such factors as the “ ‘hot pursuit of a fleeing felon, or imminent destruction of evidence [citation], or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.’” (Id. at p. 100, emphasis supplied.)
Not once but twice in the past decade our own Supreme Court has expressly adopted this standard. Thus, in People v. Celis (2004) 33 Cal.4th 667, 676 (Celis), it held: “The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.” (Additional emphasis supplied; see also, to the same effect, People v. Thompson (2006) 38 Cal.4th 811, 818 (Thompson).)
In an earlier case, People v. Souza (1994) 9 Cal.4th 224, 235 (Souza), that court said essentially the same thing in a case involving reasonable cause for detention: “[E]ven though a person’s flight from approaching police officers may stem from an innocent desire to avoid police contact, flight from police is a proper consideration—and indeed can be a key factor—in determining whether in a particular case the police have sufficient cause to detain.” (See also id. at p. 233.) And in another detention case, People v. Osborne (2009) 175 Cal.App.4th 1052, 1058, fn. 5 (Osborne), our colleagues in Division Four of this court quoted yet another United States Supreme Court decision, Illinois v. Wardlaw (2000) 528 U.S. 119, 124 (Wardlaw), to the effect that “ ‘nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight—wherever it occurs—is the consummate act of evasion....’ ”
The trial court specifically relied on this factor in denying appellant’s motion to suppress. It said, in the course of its verbal ruling: “They [the police] are summoned out there to check on drug activity. The defendant is sitting there, quietly doing nothing at the moment but as soon as he sees the officer, bang, he get[s] up and runs. Now that’s strange behavior.... [¶] [B]ased on everything the officer knew, he has an obligation to see what that was all about. And that’s what he did.”
We agree with this ruling, and not with appellant’s contrary arguments in his briefs to us. In those briefs, appellant argues (correctly) that normally the police may not enter either a person’s residence or its curtilage without a warrant unless there are “exigent circumstances, ” and that the burden of proof to show such circumstances rests on the prosecution. But then he contends the record here demonstrates no such “exigent circumstances.” In so arguing, appellant’s briefs ignore substantially all of the pertinent authority cited above. Thus, although Thompson is cited in appellant’s opening brief, the holding from it identical to that in Celis is not quoted. And, although the Attorney General quotes the portion of the Celis opinion also quoted above, neither it nor Thompson is cited in appellant’s reply brief. As already noted, that brief simply reiterates the conclusory “no exigent circumstances” argument. Finally, although appellant cites Wardlaw in his opening brief, he omits the highly pertinent quotation from that case relied upon by the Osborne court.
Appellant also downplays the uncontradicted testimony of Officer Tribble regarding, e.g., appellant’s “shocked” look when he saw the officer, his immediate discarding of items he was holding when he saw him, his flight into the backyard, including shutting the security gate to that yard, and his subsequent throwing of “an object” over a fence into another yard, etc.
We cannot and will not disregard either this strong evidence of exigent circumstances or the authority cited above. Thus, in view of (1) Officer Tribble’s testimony regarding his familiarity with appellant and vice versa, (2) the well-known drug activity in the area, (3) appellant’s apparent attempted flight once he saw Tribble and his unit, and (4) the authorities holding that the “need to prevent a suspect’s escape” (Olson, Celis and Thompson) are factors authorizing warrantless police entry into the curtilage of a private residence, the trial court here was clearly correct in its ruling denying the motion to suppress.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.