Opinion
A156849
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. PATRIZIO JOHN ROOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 230082; 18015074)
Following the denial of a motion to suppress evidence found during the search of his car, defendant pled guilty to one count of receiving stolen property. On appeal, defendant contends the motion to suppress should have been granted because the warrantless search of his car was not supported by probable cause to believe the car contained evidence of criminal activity. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's Arrest and the Search of His Car
The facts are taken from the preliminary hearing transcript.
On September 27, 2018, at approximately 10:17 p.m., San Francisco Police Officer Francis Cooke was dispatched to 38 San Pablo Avenue, a single-family house located in a primarily residential neighborhood, to investigate a burglary. Once he arrived, he spoke with A.W. and T.M. They told Cooke their late father, who had passed away four days earlier, had lived in the home. At present, A.W. was staying there temporarily, and T.M. lived nearby. Each had keys to the residence and were taking care of the property.
T.M. said she had arrived at the house around 9:08 p.m., entering through the front door. Initially, she noticed the lights were on and believed that was a little odd. Observing the door to her father's office was open, T.M. immediately began to suspect someone had been in the house because the door was always closed. During a walk-through of the house with Cooke, A.W. and T.M. discovered that one of the bedrooms had been ransacked. A.W.'s black laptop bag and its contents, her work laptop computer from the Los Angeles County District Attorney's Office and a book, "Servant's Leader," were missing. Prior to the burglary, these items had been in the kitchen.
Based on his conversation with A.W. and T.M., Cooke determined the burglary occurred somewhere between 1:00 p.m., when A.W. last left the residence, and 9:08 p.m., when T.M. entered the home.
During his investigation, Cooke went into the backyard where he noticed the backyard gate was damaged and appeared to have been forced open. In the backyard, he found a "green mesh-styled" bag containing three to four purses that A.W. and T.M. identified as their deceased mother's purses. Along with the purses, some jewelry and a cosmetic bag were taken from the ransacked bedroom. In determining the point of entry and exit of the premises, Cooke saw a hole that had been drilled into the deadbolt of the side door in the kitchen. As a result, the door was unlocked and the lock did not work. A.W. and T.M. confirmed this was new damage to the door.
Later, on September 28, about 2:30 a.m., San Francisco police officers were dispatched to a burglary in progress at 25 San Pablo Avenue. The residence at 25 San Pablo Avenue, is across the street from 38 San Pablo Avenue, the scene of the earlier burglary. The officers made their way to the back of the single-family residence at 25 San Pablo Avenue, where Officer Simon Wong saw Nathan White inside the house, running from the kitchen area to the stairs. After observing the French windows in the back were open, Officer Alexis Dedet climbed through the window, and opened the door next to the French windows, allowing additional officers to enter the building. Dedet first observed White crouching inside the living room fireplace. As Dedet grabbed White and threw him to the ground, the officer saw a metallic object "go flying away." It was a fixed-blade knife. On his person, White had textured gloves and a Leatherman multi-tool with pliers, knives, a file, a screwdriver, and little pry bars. Dedet had often seen a Leatherman multi-tool with individuals committing burglaries. On the arm of a leather couch directly below the French window, Dedet saw a footprint and, on the inner edge of the windows, the officer found an imprint of the outline of a knife blade. When Wong spoke with one of the two residents, she told him a purse originally located in the basement was now by the fireplace. She also told the officer that some cardboard boxes in the basement had been rummaged through.
Sergeant Erick Anderson arrived at 25 San Pablo Avenue at approximately 2:30 a.m. responding to a burglary in progress. By the time Anderson arrived, he knew a suspect had been taken into custody inside the residence. Officer Sargenti informed him the house had been cleared, but the backyard had not been searched. Using his flashlight to search the yard, Anderson found defendant laying on the ground in a "prone position," not moving, approximately 15 feet from an open window. Near defendant, a pair of black latex gloves was found. When defendant was taken into custody, Officer Marco Alvara discovered a set of car keys to a Lexus in defendant's pocket. Defendant told Alvara the car belonged to his mother and was parked approximately two blocks away, east on Portola Drive.
Eventually, Dedet told Anderson that he had the keys to defendant's car, a Lexus, which was "parked down the street." "Knowing that burglary suspects often arrive in vehicles in order to flee with the stolen property," Anderson immediately went to the street to determine if there was anyone else in the car waiting for "them" or if it had a warm hood, indicating it had recently arrived. Anderson located the Lexus parked "almost at the intersection of San Pablo and Portola," on the same block as 25 San Pablo Avenue. Without opening the car door, Anderson was able to see in "plain view," on the passenger side front floorboard, a "long slender piece of metal with grooves cut into one end." He recognized it as a "Slim Jim," used to open locked car doors, because he had been involved "in previous auto burglary arrests where the suspects arrested . . . had the burglary tool Slim Jim with them." At the time he found the Lexus, he was also aware of a residential burglary report taken approximately three hours earlier across the street at 38 San Pablo. Dispatch also informed Anderson the Lexus was registered to defendant.
Believing there was probable cause to search the Lexus for "additional burglary tools," and "possible stolen property from the earlier burglary at 38 San Pablo," Sergeant Anderson "assigned" Officer Alvara, to search the vehicle. Alvara stated he was looking for evidence related to the burglary at 25 San Pablo Avenue. Before Alvara conducted a search of the vehicle, like Anderson, he observed the slim jim by looking through the vehicle's window. Inside the car, Alvara located "multiple burglary tools" in different areas. Notably, on the back seat, he discovered a black drawstring bag containing a battery-powered drill and drill bits. Because Alvara was part of the burglary investigation earlier at 38 San Pablo Avenue, he had seen damage to a door there which he opined "was consistent [with] someone who had used a drill on the door." When Alvara searched the trunk, he discovered a black computer bag, containing a laptop computer with a bar code sticker indicating it was associated with Los Angeles County District Attorney's Office and a book, The Servant Leader.
Officer Andrew Sargenti conducted an inventory search of the Lexus. Because the Attorney General is not relying on the inventory search to justify the warrantless search, we do not discuss it.
Defendant was charged in an information with first degree residential burglary (Pen. Code, § 459; counts I & IV), receiving stolen property (§ 496, subd. (a); counts II & V), and possession of burglar tools (§ 466; count IX). It was further alleged defendant had suffered a prior strike conviction. (§§ 667, subd. (a)(1), (d)-(e), 1170.12, subds. (b)-(c).) B. The Motion to Suppress
All statutory references are to the Penal Code.
Defendant filed a motion to suppress under section 1538.5, and the trial court denied the motion. Subsequently, he filed a motion to set aside the information. (§ 995.) The court denied defendant's section 995 motion and his renewed motion to suppress evidence. After defendant pled guilty to count V, receiving stolen property, the court suspended imposition of sentence and placed defendant on three years of probation.
Defendant's motion to suppress evidence discovered during the search of the Lexus was considered by the court in conjunction with the preliminary hearing. After hearing testimony and argument from counsel, the court denied the motion. Considering the "totality of the facts, known to all police who responded to both the 25 San Pablo and 38 San Pablo investigations," the court found that "collectively" they knew defendant and his codefendant, White, were caught in the act of a residential burglary. Applying the automobile exception to the warrant requirement, the court further found there was probable cause to search defendant's car because White was caught in a fireplace inside the 25 San Pablo residence, defendant was caught in the yard of the same residence, prone on the ground, trying to conceal himself from the police, and a pair of black latex gloves was recovered near where defendant had been hiding. "Based on this evidence alone," the court concluded the police had probable cause to arrest defendant and White for residential burglary at 25 San Pablo Avenue. "On top of this," the court indicated the police were aware another residential burglary had been committed on the same street "just a few doors down on the prior day just hours before at 38 San Pablo." Though entry was made into each residence by a different means, the court stated this "assumes that residential burglars always break into different houses using the exact same modus operandi regardless of the unique characteristics of each targeted house without regard to whether one house has an unlocked window that can be exploited as a means of entry and another does not. It defies common sense that a burglar who finds an open window to a house would simply ignore the ease of such a point of entry in favor of nevertheless breaking down a doorway or a locked window." The court additionally noted defendant had keys to the Lexus on his person, and "[u]nless one assumes that burglars carry with them all the fruits and all of the instrumentalities of their burglaries with them at all times, it was reasonable to believe that the fruits and instrumentalities of the defendants' criminal activity would be found in that car." The court further observed that defendant claimed the car was not his but his mother's, "deflect[ing] . . . ownership of the car on an apparently innocent third party." Finally, bolstering the police officers' suspicion that there was incriminating evidence in the car, the court cited to the presence of the slim jim which the officers could see through the window. Considering all these facts and circumstances known to the officers, the court concluded the automobile exception applied because probable cause justified the warrantless search of the Lexus.
In part II., post, we will explain and consider the application of the automobile exception.
When defendant renewed his motion to suppress pursuant to a section 995 motion, based on the totality of circumstances, a different judge denied the motion, because the two burglaries were on the same block within a period of "zero to twelve hours," a set of keys was found on "someone who has been proned out trying to conceal [himself] while the burglary is in progress," the key fob opened up a car that was "close by, and on the seat of the car" there was an item that "may be possible to purchase legally," but is "commonly known and used to be a tool for . . . entering vehicles that are locked."
II. DISCUSSION
A. Standard of Review
" ' "A defendant may move to suppress evidence on the ground that '[t]he search or seizure without a warrant was unreasonable.' [Citation.] A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. [Citation.] 'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " ' " (People v. Johnson (2018) 21 Cal.App.5th 1026, 1031.) B. The Automobile Exception
" '[T]he Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause.' [Citation.] Under the automobile exception to the warrant requirement, '[w]hen the police have probable cause to believe an automobile contains contraband or evidence they may search the automobile and the containers within it without a warrant.' " (People v. Waxler (2014) 224 Cal.App.4th 712, 718.) Probable cause to search exists "where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found [citation]." (Ornelas v. United States (1996) 517 U.S. 690, 696.) Said another way, "[p]robable cause for a search exists where an officer is aware of facts that would lead a [person] of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched." (People v Dumas (1973) 9 Cal.3d 871, 885.) A probable cause inquiry therefore relies on an objective standard; we do not consider an officer's subjective beliefs. (People v. Evans (2011) 200 Cal.App.4th 735, 753.) We apply the totality of the circumstances test to determine whether there was probable cause for the warrantless search. (Illinois v. Gates (1983) 462 U.S. 213, 230-231.) C. There Was Probable Cause to Search the Lexus
Defendant contends the facts known to Officer Alvara and Sergeant Anderson at the time they searched defendant's Lexus did not support the trial court's conclusion that there was probable cause for the officers to believe contraband or evidence, specifically evidence of the burglary at 38 San Pablo Avenue, would be found inside the vehicle. We are not persuaded.
When the Lexus was searched, the officers knew that within no more than 12 hours before being dispatched to the burglary at 25 San Pablo Avenue, there had been a burglary across the street at 38 San Pablo Avenue. Shortly after White was taken into custody inside the residence at 25 San Pablo Avenue, defendant was found by Sergeant Anderson hiding in the backyard, about 15 feet from the residence, attempting to escape detection. Near defendant, a pair of latex gloves was found. Though not a burglary tool, gloves were evidence from which the officers could infer defendant was involved in the burglary with White. Moreover, after defendant was taken into custody for the burglary at 25 San Pablo, Officer Alvara discovered a set of keys in defendant's pocket. Defendant told Alvara the vehicle was parked approximately two blocks away. Because Anderson knew that burglary suspects often arrive in vehicles to flee with the stolen property, and was informed by another officer the Lexus was parked down the street, he immediately left the residence to determine if anyone else was in the vehicle or if its hood was warm, indicating recent arrival. He located the Lexus almost at the intersection of San Pablo Avenue and Portola Drive, on the same block as 25 San Pablo Avenue, and presumably within a block of the residence at 38 San Pablo Avenue. When Anderson found the vehicle, he was aware of the residential burglary report taken approximately three hours earlier at 38 San Pablo Avenue, and he was informed by dispatch that the Lexus was registered to defendant. Importantly, prior to conducting a search of the Lexus, Anderson observed in plain view a slim jim, which is used to open locked car doors. Alvara also observed the slim jim in plain view. Believing there was probable cause that additional burglary tools and possible stolen property from the earlier burglary were inside the vehicle, Anderson directed Alvara, who was involved in the investigation of 38 San Pablo Avenue, to search the Lexus. And, in fact, Alvara found multiple burglary tools, including a power drill. In the trunk, he discovered a computer bag containing a laptop computer stolen in the 38 San Pablo Avenue burglary. As the trial court remarked, "Unless one assumes that burglars carry with them all the fruits and all of the instrumentalities of their burglaries with them at all times, it was reasonable to believe that the fruits and instrumentalities of the defendants' criminal activity would be found in that car."
In sum, given the close proximity of the two burglarized residences across the street from each other, the time period between the burglaries, the location of defendant's vehicle near San Pablo Avenue, the officers' observation of the slim jim—an auto burglary tool—inside defendant's vehicle, defendant's attempt to evade detection by hiding in the backyard of 25 San Pablo Avenue, and the latex gloves located near him, the officers, based on the totality of the circumstances, had probable cause to search for burglary tools and stolen items.
In arguing the search of the Lexus does not come within the automobile exception to the warrant requirement, defendant parses individual facts known to the officers and examines them in isolation. Defendant asserts, in particular, that the evidence does not show he attempted to distance himself from the Lexus because at the time of the search, Anderson did not know about his statement to Alvara regarding his mother's alleged ownership of the vehicle, and Alvara did not know about the broadcast indicating the vehicle was registered to defendant. Even assuming neither officer knew defendant was attempting to distance himself from the vehicle, the officers were still aware of enough facts to justify the warrantless search of the Lexus. Defendant, in addition, criticizes the trial court's logical observation that unless one assumes burglars carry with them all the fruits and instrumentalities of their criminal activity, it was reasonable for the officers to believe they would find the fruits and instrumentalities inside the car. Defendant further maintains the presence of the slim jim fails to connect him to the earlier burglary.
We find defendant's analysis troublesome. Rather than evaluating whether under the totality of circumstances, the officers had probable cause to search the Lexus, he fixates on specific facts, standing alone, to argue the vehicle search was illegal. In short, because the totality of the facts known to the officers "would lead a [person] of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular placed to be searched," we conclude the warrantless search of the vehicle was lawful under the Fourth Amendment. (See People v. Dumas, supra, 9 Cal.3d at p. 885.)
Accordingly, the trial court properly denied defendant's motion to suppress the evidence found during the search under the automobile exception.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.