Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCS196402, Yvonne Campos and Raymond Edwards, Jr., Judges. Affirmed.
BENKE, J.
Michael Blas Rodriguez was found guilty of possession of methamphetamine and resisting an officer. He was granted three years' probation. Rodriguez appeals, arguing the trial court erred in denying his Penal Code section 1538.5 motion to suppress evidence seized at the time of his arrest.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
A. Motion to Suppress
In his motion to suppress, appellant argued police officers, without a warrant or other lawful justification and without probable cause, entered an apartment where he was staying and arrested him. Therefore, he contended, the seizure and search of his wallet, which contained methamphetamine, were illegal and the methamphetamine subject to exclusion. Appellant argued that even assuming the officers' entry into the apartment was lawful, there was no constitutional justification for the seizure and search of his wallet as incident to his arrest, and on that basis alone the methamphetamine was excludible.
Appellant also argued the officers illegally seized a glass smoking pipe from the apartment. Appellant was acquitted of being in possession of that pipe and we do not consider the legality of its seizure.
B. Facts
On September 3, 2005, at approximately 11:22 in the evening, National City Police Officer Levi Hart heard a radio dispatch from the National City Police Department stating that a man with a knife had broken into apartment J at 2641 Highland Avenue. The dispatch stated there were children in the apartment and that the call between the person reporting the break-in and the dispatcher had been disconnected.
Officer Hart and other National City police officers proceeded to the front door of the apartment. The door was closed, but there were lights on inside. As he stood at the door, it opened and two women walked out of the residence. Hart asked them: "Where is he?" The women replied: "He is inside." Hart directed the women to a safe location, and as he did so, appellant, who was in the apartment, walked to the front door. Hart told appellant to come out. Appellant asked why. Hart replied: "Because I told you to." When appellant refused, Hart told him that if he did not come out he would enter the apartment and get him. Appellant responded, "I don't give a fuck," and still refused to come outside.
As he confronted appellant at the door, Hart was concerned about the report of children being inside the apartment, that a man was armed with a knife and that the man at the door, appellant, was uncooperative. Hart thought appellant might be the person who reportedly broke in and had a knife. Hart decided to advance on appellant. As he did so, appellant tried to shut the door. Hart pushed the door open and entered the hallway. Hart tried to use his pepper spray on appellant, but when the sprayer did not work, he grabbed appellant around the upper body and pulled him to the ground. Two or three other officers, including Officers Redikop and Segal, assisted him. One of the other officers provided handcuffs. During the altercation, Hart was concerned there might be another intruder in the apartment, and he could not see where the children were who were reportedly in the apartment.
The officers stood appellant up. Hart, Redikop and perhaps Segal walked appellant to the front door. They wanted to get appellant out of the apartment because of the report of children being present and because they had not confirmed how many intruders might be in the apartment. Hart did not believe Segal left the apartment after appellant's arrest. As Redikop walked appellant to a police car, Hart reentered the apartment to look for the children. As Hart turned, he noticed Segal holding a wallet that Hart had seen in plain view on a coffee table in the room where appellant was arrested. At that moment Hart did not know appellant's exact location, and he did not know exactly when Segal seized the wallet. Hart recalled Segal opening the wallet, looking inside it and saying: "Okay. That is the guy we have outside." Methamphetamine was found in the wallet.
There is some confusion in the record concerning when appellant's wallet was seized. Officer Redikop testified at the preliminary hearing. A transcript of his testimony was introduced at the section 1538.5 hearing. At the preliminary hearing, defense counsel read to Officer Redikop a portion of his report concerning the incident, stating that after appellant was placed in a patrol car, Officer Segal returned to the apartment to locate identification for the suspect. When defense counsel at the section 1538.5 hearing asked Hart about Redikop's testimony, Hart stated it was possible Segal left the apartment and then returned. Hart stated he pointed the wallet out to Segal and Segal seized it.
Hart walked down the hallway of the small apartment looking for children. He found none. At some point while Hart was looking for the children, Segal opened the wallet and found methamphetamine and appellant's identification.
C. Trial Court Ruling
The trial court found exigent circumstances justified the officers' warrantless entry of the apartment and that the seizure of appellant's wallet was lawful as incident to his arrest.
DISCUSSION
Appellant argues there was no sufficient exigency allowing the officers to enter the apartment without a warrant. Appellant argues in any case his wallet was not lawfully seized as incident to his arrest because at the time of the seizure, he was out of the apartment sitting in the back of a police car.
At several points in appellant's opening brief, reference is made to the content of documents appended to appellant's section 1538.5 motion but excluded−properly−from evidence by the trial court. While counsel acknowledges the documents are not in evidence, reference to them in the opening brief is irrelevant and improper.
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
A. Entry
We quickly dispose of appellant's claim there was no exigency justifying the officers' warrantless entry of the apartment. A warrantless entry of a residence is lawful when there is probable cause to believe that entry is necessary to protect persons in the residence or to prevent the escape of a suspect. (People v. Thompson (2006) 38 Cal.4th 811, 817-818.)
As appellant reads the record, at the time Hart entered the apartment he was aware, based on later police dispatches, there were no children present. As we read the record, however, while a dispatch at some point so stated, Hart was unaware of that information at the time he entered the apartment. At the time he was acting, Hart believed an armed
man had broken into the apartment and that children were present. Hart spoke with a man in the apartment who was totally uncooperative. Hart had probable cause to conclude that a warrantless entry of the apartment was necessary for the protection of persons in the residence and to prevent a suspect's escape.
B. Search Incident to Arrest
Appellant argues even if the officers' entry into the apartment was lawful, the seizure of his wallet was not. He acknowledges the search incident to arrest exception to the warrant requirement. He contends, however, that because at the time the wallet was seized he was secured in the rear of a police car far from the location of his arrest, the seizure could not be justified by that exception.
1. Law
When the arrestee is no longer present, we conclude the proper analysis of searches justified as incident to an arrest is described in People v. Rege (2005) 130 Cal.App.4th 1584. Rege holds, based on Chimel v. California (1969) 395 U.S. 752, 763 [89 S.Ct. 2034], and New York v. Belton (1981) 453 U.S. 454, 458 [101 S.Ct. 2860], that incident to an arrest, the arrestee and the area within his immediate control may be searched for weapons and evidence. The search of that area may be conducted after the arrestee has been removed as long as the search is " 'reasonably contemporaneous [with the arrest] and nothing has occurred in the meantime to render it unreasonable.' " (People v. Rege, supra, 130 Cal.App.4th at p. 1590, quoting the concurring opinion of Bedsworth, J. in People v. Summers (1999) 73 Cal.App.4th 288, 294-295.)
Not all courts and judges agree with this approach. Some hold that once a defendant is secured and is no longer able to grab a weapon or destroy evidence, the rationale allowing the warrantless search is absent and no justification for it exists. (See e.g., State v. Gant (Ariz. 2007) 162 P.3d 640; People v. Rege, supra, 130 Cal.App.4th at pp. 1591-1593, dissenting opinion of Gaut, J.) Those who would allow searches reasonably contemporaneous to arrest even when the arrestee is no longer present base their conclusion on the need to provide officers with reasonably workable, bright line rules applicable in perhaps confused, uncertain and dangerous situations. (People v. Rege, supra, 130 Cal.App.4th at pp. 1588-1590; People v. Summers, supra, 73 Cal.App.4th 288, concurring opinion of Bedsworth, J., pp. 294-295.)
The United States Supreme Court has granted certiorari in State v. Gant, supra, 162 P.3d 640, a case in which a majority of the Arizona Supreme Court found a search following an arrest was unlawful because the arrestee was no longer present. (Arizona v. Gant No. 07-542 [128 S.Ct. 1443].) Our Supreme Court has granted review in People v. Leal (S162271, review granted June 11, 2008), raising the same issue but deferring the matter pending decision in Gant.
Formerly published at 160 Cal.App.4th 701.
3. Analysis
Whatever the future may hold with regard to the continuing evolution of the law of searches incident to arrest, at this moment case authority holds that officers may search the immediate area of an arrest even when the arrestee has been removed as long as the search is reasonably contemporaneous with the arrest and nothing has occurred to render it unreasonable. (People v. Rege, supra, 130 Cal.App.4th at pp. 1589-1590.) During the search, it is permissible for officers to seize articles customarily carried by an arrested person, such as a man's wallet or woman's purse, even if the arrestee is secured and no longer a danger. (People v. Belvin (1969) 275 Cal.App.2d 955, 958.) With these authorities in mind, we focus on whether the seizure of appellant's wallet was reasonably contemporaneous with his arrest and whether anything occurred to render the search unreasonable.
As is often the case in search and seizure situations, the officers here, concerned as they were with their lives, the lives of what might have been hostage children and the arrest of a combative suspect, understandably do not provide a complete or consistent account of the events and the timing of events surrounding appellant's arrest and removal from the apartment. Still, the time period and circumstances surrounding what occurred are clear and support the reasonableness of the officers' actions.
The officers entered the apartment with an unclear understanding of what might have been a very dangerous situation. Even after their physical confrontation with appellant and his arrest, the situation was not meaningfully clearer. The exact distance appellant was from the house, how far Officer Segal had gone from the residence, if he had left the residence at all, before returning and seizing the wallet is not precisely set forth in the testimony. It is clear, however, that the seizure of the wallet occurred very soon after appellant's arrest and before he was taken to the police station. The seizure of the wallet also occurred before the officers were fully in control of and fully understood the situation they faced inside the apartment. They did not know who appellant was, if appellant was the intruder or if there were other suspects. As mentioned, they did not know if there were children in the apartment, and, if so, where they were. While appellant, to one degree or another, might have been physically secured just outside the residence, the situation inside the apartment was not secure, and in order to stabilize the environment and protect others who might be inside, the officers could properly search the area where appellant was arrested.
The judgment is affirmed.
I CONCUR: McCONNELL, P. J.
McDONALD, J., dissenting.
I concur with the conclusion of the majority opinion that the officer's entry into the apartment was justified by exigent circumstances. I disagree with the conclusion of the majority opinion that the search of Rodriguez's wallet was a permissible warrantless search incident to his arrest; the search of the wallet was "characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest." (U.S. v. Caseres (2008) 533 F.3d 1064, 1070.)
A jury found Michael B. Rodriguez guilty of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 1) and resisting an officer (Pen. Code, § 148, subd. (a)(1), count 2). The jury found Rodriguez not guilty of possessing paraphernalia used for narcotics (Health & Saf. Code, § 11364, count 3). The court stayed imposition of sentence on count 1 and granted Rodriguez three years' formal probation. The court stayed imposition of sentence on count 2 and placed Rodriguez on three years' probation to be served concurrently with probation granted on count 1. On appeal, Rodriguez claims the trial court erred by denying his Penal Code section 1538.5 motion to suppress evidence.
Because my understanding of the record is somewhat different from the majority opinion, the facts, as I understand them, are set forth in detail.
FACTS
On September 3, 2005, Officer Levi Hart received a radio dispatch that a man with a knife was breaking into an apartment in which children were present. On his way to the apartment, Officer Hart received a second dispatch that only one man, and no children, lived in the apartment. The dispatcher could not contact anyone inside the apartment. When officers arrived at the apartment, the door was closed and some lights were on inside. One officer got the attention of a woman in the apartment, who came outside. Officer Hart asked her, "Where is he?" She replied, "He is inside."
At that point, Rodriguez came to the open door of the apartment. Officer Hart asked him to come outside. Rodriguez replied, "What for?" When he refused to come outside, Officer Hart told him to come outside or Officer Hart would come inside and get him. Rodriquez again refused. The officer then attempted to enter the apartment, but Rodriquez tried to shut the door. After Officer Hart attempted unsuccessfully to subdue him with pepper spray, he grabbed Rodriguez and pulled him to the ground.
After the struggle, officers arrested Rodriguez for resisting an officer, and Officer Redikop handcuffed Rodriguez, removed him from the apartment and placed him in a patrol car parked in the street near the apartment complex. After Officer Redikop placed Rodriguez in the patrol car, officers reentered the apartment to look for children or an intruder. The officers searched the small apartment and did not find anyone. After reentering the apartment after the arrest while Rodriguez was in custody in the police car on the street outside the apartment, and finding no one else present in the apartment, Officer Redikop found a glass smoking pipe on the living room floor by the couch. Another officer, Officer Segal, found a wallet on the coffee table near where officers had subdued Rodriguez. Officer Segal opened the wallet and found Rodriguez's identification and some methamphetamine.
PROCEDURAL BACKGROUND
Rodriguez filed a Penal Code section 1538.5 motion to suppress evidence of the methamphetamine found in his wallet and the pipe found in the apartment. The court denied the motion.
The court found that despite the confusion involved with the dispatches, the officers believed a man with a knife had broken into the apartment. The court reasoned that when the woman told Officer Hart, "he's inside," her response lent credibility to the officers' actions. The officers assumed there was a man with a knife, and the officers did not request more information from the woman because of the exigency of the situation. The court determined the officers' belief was reasonable because the woman impliedly confirmed that the man the officers were looking for was inside the apartment and the officers' warrantless entry into the apartment was justified by the exigent circumstances. The court also found the officers legally seized and searched the wallet incident to Rodriguez's arrest for resisting an officer.
At trial, Officer Segal testified he found the wallet and what he believed to be methamphetamine inside the wallet. Officers Hart and Redikop testified they saw the plastic bag inside the wallet. Officer Redikop also testified that on the way to the police department he showed Rodriguez the wallet and asked him if it was his. Rodriguez said it was. A criminalist testified the substance the officers found inside the wallet was methamphetamine. The jury found Rodriguez guilty of counts 1 and 2 and not guilty of count 3.
DISCUSSION
Rodriguez contends the Fourth Amendment prohibited the officers' warrantless entry into the apartment because exigent circumstances did not justify the entry. He claims the second dispatch negated any exigent circumstances. Also, Rodriguez contends the Fourth Amendment prohibited the warrantless seizure and search of his wallet. He argues the search was not a lawful warrantless search incident to his arrest because, when the search occurred, he was in custody in a patrol car outside the apartment and not then near or in control of the apartment in which the wallet was seized.
A
Warrantless searches and seizures of a home are presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 586.) The government can overcome the presumption of unreasonableness by showing the warrantless entry is within one of the "specifically established and well-delineated exceptions" to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357; People v. Thompson (2006) 38 Cal.4th 811, 817-818.) An exception to the warrant requirement exists when exigent circumstances demand a warrantless entry. (People v. Panah (2005) 35 Cal.4th 395, 465.) " ' "Exigent circumstances" means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.' " (People v. Lucero (1988) 44 Cal.3d 1006, 1017, quoting People v. Ramey (1976) 16 Cal.3d 263, 27.) There is "no ready litmus test" for exigent circumstances, and we measure each claim of an extraordinary situation by the facts known to the officers. (Ibid.) The threat must be "so imminent and serious" that a reasonable police officer would believe a warrantless entry to be necessary to save lives. (People v. Blackwell (1983) 147 Cal.App.3d 646, 651.)
Here, substantial evidence supports the court's finding that the officers reasonably believed a person within the apartment could be in imminent danger. Although the second dispatch informed the officers no children lived in the apartment, it did not alter the first report that a man with a knife had broken into the home. Thus, when Officer Hart asked the woman where "he" was, and she responded that he was inside, Officer Hart reasonably believed an intruder with a knife was in the apartment.
The officers reasonably believed a warrantless entry was necessary to save lives. Although the second dispatch informed the officers that only one man lived in the apartment, the danger of an armed intruder is an imminent and serious threat to anyone in the home. A reasonable officer would believe a warrantless entry necessary to prevent danger to life in these circumstances. Because substantial evidence supports the officers' belief that a man armed with a knife broke into the apartment, and this belief was reasonable under the Fourth Amendment, the trial court did not err by finding exigent circumstances justified the warrantless entry into the apartment.
B
Another exception to the search warrant requirement is a search incident to an arrest. (Chimel v. California (1969) 395 U.S. 752.) It is reasonable for an officer to search the person arrested to remove weapons the person might use to resist arrest. (Id. at p. 763.) It is also reasonable for an officer to search the person arrested for evidence to prevent its concealment or destruction. (Ibid.) For these two purposes, it is likewise reasonable for an officer to search the area " 'within [the person's] immediate control,' " meaning the area within which the person might reach a weapon or conceal or destroy evidence. (Ibid.) The warrantless search of Rodriguez's wallet was not justified by the incident to arrest exception and was therefore unreasonable under the Fourth Amendment.
This case presents the situation referred to but distinguished by People v. Summers (1999) 73 Cal.App.4th 288, which found a warrantless search within the incident to arrest exception. In Summers the defendant at the time of the search and his arrest "was still being removed from the cramped premises; one roommate was present and free of police control, and another was unaccounted for when the weapon was [seized]. This was a fluid situation in close quarters; and the court could properly find . . . that the circumstances justified reasonable precautions for the safety of everyone involved." (Id. at p. 291.)
As articulated by People v. Summers, supra, 73 Cal.App.4th at pages 290 to 291, "[t]he justification for Chimel [v. California, supra, 395 U.S. 752] [incident to arrest] searches is officer safety, not officer opportunism, i.e., a postarrest license to embark on a general search. [Citation.] That is to say, where there is no threat to the officers because the suspect has been immobilized, removed, and no one else is present, it makes no sense that the place he was removed from remains subject to search merely because he was previously there." In Summers, the court found, under the facts of the case, a threat to officer safety remained at the time of the search. Here, the search of Rodriguez's wallet did not occur in his immediate vicinity over which he had control during his arrest. The search occurred while Rodriguez was handcuffed and confined in a patrol car and was conducted a period of time after the arrest. The wallet, on the coffee table, although near where the arrest occurred, was not within Rodriguez's immediate control during the search; he was confined in the patrol car. Also, when Officer Segal seized the wallet, officers had already checked the apartment for other people and found no one. The officers had control of the apartment and the situation had stabilized with no threat to officer safety or preservation of evidence. Thus, the Fourth Amendment prohibited the warrantless seizure and search of the wallet. The trial court erred by denying Rodriguez's Penal Code section 1538.5 motion to suppress evidence of the wallet and its contents.
The scope of the incident to arrest exception is currently under review by both the California Supreme Court (People v. Leal, review granted June 11, 2008, S162271) and by the United States Supreme Court (Arizona v. Gant (Ariz. 2007) 162 P.3d 640, cert. granted Feb. 25, 2008, ___ U.S. ___ [128 S.Ct. 1443, 170 L.Ed.2d 274]).
At trial, the only evidence showing Rodriguez possessed methamphetamine was testimony regarding the wallet and its contents. Had the court excluded the wallet from evidence, there would have been insufficient evidence to convict Rodriguez on count 1. I would reverse the conviction on count 1 and otherwise affirm the judgment.