Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC752787
RUSHING, P.J.
I. Statement of the Case
Defendant Jay Brian Rouse appeals from a judgment entered after he pleaded no contest to possession of phencyclidine (PCP) for sale and resisting arrest and admitted that he had a prior strike conviction and served a prior prison term. (Health & Saf. Code, § 11378.5; Pen. Code, §§ 148, subd. (a)(1), 667, subds. (b)-(i), 667.5, subd. (b).) On appeal, he claims the court erred in denying his motion to suppress. (Pen. Code, § 1538.5, subd. (m) [authorizing appeal]; Cal. Rules of Ct., rule 8.204(a)(2)(B).)
We conclude that the court properly denied the motion and affirm the judgment.
II. Standard of Review
In ruling on a motion to suppress, the trial court is vested with the power to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw factual inferences. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Accordingly, we review the evidence in the light most favorable to the trial court’s ruling and accept its express and implied findings of fact if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.) The trial court also selects the applicable rule of law and applies it to the facts to determine the legality of police conduct, and both of these determinations are subject to our independent review. (People v. Carter (2005) 36 Cal.4th 1114, 1140; People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Glaser (1995) 11 Cal.4th 354, 362.) Our review is based on the evidence presented to the trial court at the suppression hearing, which we summarize below. (Cf., e.g., People v. Marks (2003) 31 Cal.4th 197, 219, fn. 3 [review of competency determination limited to evidence presented at competency hearing].)
III. Evidence and Ruling
Officer Kevin Allan, a member of a special drug investigation unit of the San Jose Police Department (Department), testified that sometime before December 28, 2006, the Department received two anonymous calls saying that defendant was selling PCP from 485 Mignof Lane in San Jose and drove a Saturn. Officer Allan confirmed that defendant lived at that address, learned that he had been previously arrested, and obtained a prior booking photo, which described him as a white adult male in his 40’s, approximately six feet tall, and 200 pounds. The photo also showed that defendant had a mustache.
On December 28, 2006, Officer Allan and his partner Officer Jimenez commenced undercover surveillance of the Mignof residence in plain clothes and an unmarked car from about 75 to 100 yards away. He did not have defendant’s booking photo with him but had reviewed it the day before. He observed a large pickup truck parked in the driveway but could not see the license plate number. At one point, a white man in his 40’s with a mustache, about six feet tall and 200 pounds, wearing a red shirt left the house, got into the truck, and drove away. Officer Allan did not know if anyone else lived at the house, and because the person fit defendant’s description, he thought it was defendant and decided to follow him. Officer Allan did not consider it unusual for a person to own two vehicles.
At an intersection a few blocks away, the truck ran a red light. Officer Allan activated a red light and siren to make a traffic stop, but instead of stopping, the driver extended his hand out of the window, made a rude gesture with his middle finger, and continued on. In accordance with Departmental policy forbidding pursuit of traffic violators, Officer Allan did not follow and lost sight of the truck. He did obtain a partial license plate number. He and his partner continued to search for 20 minutes. He then met with Officers Lee and Clark and told them about the anonymous tips, described the truck, the driver, including his red shirt, and said that defendant also drove a Saturn. He sent them back to Mignof Lane to resume surveillance with directions to call if they saw or heard anything. He continued to look for the truck.
Officers Clark and Lee went to the house and after around 45 minutes observed a Saturn arrive and park in the driveway. From about 150 feet away, they saw the driver get out and enter the house. He matched Officer Allan’s description of the truck driver—white male, in his 40’s, with a mustache, approximately six feet tall and 200 pounds, wearing a red shirt. The officers relayed this information to Officer Allan, who directed them to make an investigative traffic stop if the man came out again. Within 10 minutes, the man emerged and got into the Saturn. The officers activated their red light and siren, parked behind the Saturn, and went to the man—defendant—who was in the driver’s seat. Because he was not cooperative, Officer Lee removed him from the car and handcuffed him, while Officer Clark drew his gun to provide cover.
Upon learning of the detention, Officer Allan returned to Mignof Lane. This was about an hour and a half after he originally left to follow the truck. When he got close to defendant, he realized that he was not the driver of the truck. Officer Allan told defendant that there had been a mix-up. He explained how a similar looking man had left the house in a truck and had not pulled over after a traffic infraction. When he described the man, defendant said it was his long time friend Mark Fattalini, who stayed with him on occasion. Defendant said they were often mistaken for each other or brothers. Officer Allan had previously heard of Fattalini and knew that he was on parole with outstanding felony warrants. He informed defendant of this; and because Fattalini had had time to return to the house during the break in surveillance, he asked defendant for permission to search the house for him. According to Officer Allan, defendant said “yes” or “yeah,” although he could not remember what he said verbatim
Officer Allan then had Officer Clark conduct a protective sweep for Fattalini. Officer Clark entered the house and walked down a hall to a back bedroom. The door was open, and there was mail for defendant outside. He entered and inside saw a baggie of white powder on top of a dresser, which he seized.
At the hearing on the motion to suppress, the trial court admitted defendant’s current booking photo (Exh. A), an enlarged copy of his drivers license (Exh. B), a booking photo of Fattalini (Exh. C), an enlarged copy of his drivers license (Exh. D), copies of vehicle registration documents for a pickup truck (Exh. E), copies of vehicle registration documents for the partial license plate number 1G6046 (Exh. F), and copies of Fattalini’s driving record, including residential information (Exh. G).
Officer Allan testified that registration documents for the partial license plate number revealed a truck that could have been the one he saw and whose ownership was in the process of being transferred to Fattalini.
The defense also produced Mark Fattalini. Looking at Fattalini from 10 yards away, Officer Allan said that his current appearance was consistent with the photos of him, except for some additional facial hair that he now had.
Officers Allan and Clark testified that defendant, who was wearing glasses in court, was not wearing them on the day of the incident. Officer Clark also observed that defendant was not clean shaven and no longer had a mustache.
With defendant standing near Fattalini, Officer Allan testified that defendant was around four inches taller than Fattalini, Fattalini was more muscular and built up than defendant, and Fattalini had more hair on his arms and some tattoos. Officer Allan testified that both appeared to have receding hairlines. He noted that Fattalini’s hair was much shorter in court than it was on the day of the incident and at that time looked more like defendant’s.
In support of the motion, defense counsel claimed that defendant’s detention and arrest were unreasonable. Given the physical differences between defendant and Fattalini, counsel argued that it was not reasonable for the officers to mistakenly think that defendant was the person who had left in the truck and ran the red light. This was especially so, counsel argued, because Officer Allan could have, but did not, run a vehicle check on the partial license plate of the truck, which ultimately would have linked the truck to Fattalini, whom Officer Allan knew.
Counsel further claimed that defendant’s alleged consent to search the house was tainted by the unlawful restraint. Moreover, he argued that Officer Allan’s testimony did not show that defendant actually consented to the search.
The prosecutor argued that when defendant arrived in his Saturn, he matched Officer Allan’s description of the person driving the truck, especially because of the red shirt and because even defendant said that people often mistook him and Fattalini for brothers. Moreover, she argued that it was not unreasonable for Officer Allan to proceed without running a vehicle check on the partial license plate of the truck. Thus, the prosecutor claimed the detention was reasonable, even if mistaken. The prosecutor further argued that once Officer Allan explained that Fattalini was on parole and subject to arrest, defendant voluntarily consented to a search for Fattalini. She claimed that Officer Allan’s testimony that defendant said “yes” to the search was sufficient even if he could not remember defendant’s exact statement.
In a brief ruling, the court denied the motion, finding that (1) it was reasonable for the officers to believe that the defendant was the person who had evaded the police, (2) defendant was lawfully detained and arrested, and (3) defendant nevertheless voluntarily consented to the search.
IV. Discussion
Defendant contends that the court erred in concluding that the detention was reasonable and unlawful.
An officer with a reasonable suspicion that a motorist has violated the California Vehicle Code may stop the vehicle involved for investigation. (People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.) Indeed, if a law enforcement officer has probable cause to believe a person has committed even a very minor criminal offense in his presence, the officer may, without violating the Fourth Amendment, effect a custodial arrest of that person. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.) As the California Supreme Court opined, “[T]here is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 27 Cal.4th 601, 607 [riding a bicycle in the wrong direction in violation of the Vehicle Code].)
Here, Officer Allan observed the truck run a red light, which, defendant concedes, constituted a violation of Vehicle Code section 21453. Accordingly, he had a reasonable suspicion to detain the driver for that offense, if not probable cause to make a custodial arrest. This is especially so given the driver’s response to the officers’ flashing lights and siren and flight. (People v. Souza (1994) 9 Cal.4th 224, 235, 239-242 [flight properly considered in evaluating of propriety of detention].)
Defendant argues that the detention was unlawful because there was no evidence that “[he] was engaged in or about to engage in criminal activity.” However, police may properly detain not only persons engaged in or about to engage in unlawful conduct but also persons who have completed unlawful acts. (In re Tony C. (1978) 21 Cal.3d 888, 893.)
Citing Jackson v. Superior Court (1950) 98 Cal.App.2d 183 (Jackson), defendant argues that the detention for an infraction was unreasonable as a matter of law because it took place so long after he committed the traffic infraction that the legal basis for a detention had evaporated. Defendant’s reliance on Jackson is misplaced.
This and defendant’s next claim were raised for the first time in his reply brief. Although we generally decline to consider arguments raised for the first time in a reply brief (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3), we will address these claims on the merits to forestall any later claim of incompetence of appellate counsel.
In Jackson, a police officer recognized a boy shooting a BB gun at a light bulb attached to a public building but waited more than 24 hours to go to the boy’s home and arrest him. (Jackson v. Superior Court, supra, 98 Cal.App.2d at p. 184.) The appellate court applied common law principles requiring that a warrantless arrest for a misdemeanor or infraction “be made at the time the offense... is being committed or within a reasonable time thereafter or upon fresh and immediate pursuit of the offender. [Citation.]” (Id. at p. 185.) The Jackson court also noted: “ ‘No hard and fast rule can, however, be laid down which will fit every case respecting what constitutes a reasonable time. What may be so in one case under particular circumstances may not be so in another case under different circumstances. All that can be affirmed with safety is that the officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.’ ” (Ibid.)
Here, because Officer Allan complied with departmental policy, he did not pursue the truck. However, Officer Allan acted promptly in relating information about the infraction to other officers, who then detained defendant as soon as possible under the circumstances. Accordingly, Jackson does not suggest that the detention here was unduly delayed or otherwise unreasonable.
Citing U.S. v. Grigg (9th Cir. 2007) 498 F.3d 1070 (Grigg), defendant suggests that the delayed detention for a completed traffic infraction was unreasonable because any governmental interests served by the detention were outweighed by the significant intrusion upon his personal liberty.
In Grigg, the police detained the defendant to investigate a citizen’s complaint that he had at some time in the past played loud music, presumably in violation of a noise ordinance. (Grigg, supra, 498 F.3d at p. 1072.) In finding the detention unreasonable, the appellate court explained that although police may detain a person based on a suspicion that he or she committed a felony long after that alleged felony had been committed, such a blanket rule did not apply to all previously committed misdemeanors. Rather, the court adopted a case-by-case approach that balanced the nature and quality of the restraint on the misdemeanant against the importance of the governmental interests implicated by the offense, with a special focus on whether the misdemeanor implicated public safety. (Id. at p. 1081.)
We are not bound by lower federal appellate court decisions. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, defendant’s reliance on Grigg is misplaced. In Grigg, the court acknowledged that “ ‘where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice.’ ” (U.S. v. Grigg, supra, 498 F.3d at p. 1076, quoting United States v. Hensley (1985) 469 U.S. 221, 229.) Moreover, the Grigg court indicated that misdemeanors that implicate public safety, such as drunken or reckless driving, offer a stronger justification for the intrusion caused by a detention. (U.S. v. Grigg, supra, 498 F.3d at p. 1081.)
Here, Officers Clark and Lee did not detain defendant on the basis of a citizen complaint concerning long past misdemeanor conduct that did not even occur in the presence of a police officer. Rather, the offense occurred in Officer Allan’s presence, and he would have detained the driver had the driver not ignored the red light and siren. In fact, Officer Allan continued his effort to find and detain the truck driver even after sending Officers Clark and Lee back to Mignof Lane. Because the subsequent detention by Officers Clark and Lee was at Officer Allan’s direction, it was, in effect, simply a continuation of Officer Allan’s ongoing effort and as reasonably contemporaneous with the infraction as possible. Moreover, unlike the alleged prior violations of a noise ordinance in Grigg, the actual infraction observed by Officer Allan—running a red light—implicated public safety.
Under the circumstances, we conclude that it was reasonable for Officers Clark and Lee to detain the driver of the truck for the traffic infraction. Thus, the question becomes whether it was reasonable for them to believe that defendant was the driver of the truck. We agree with the trial court that it was.
Officer Allan saw the driver of the truck leave defendant’s residence. From his vantage point, the person matched the description of defendant in the booking photo: both were white men, in their 40’s, about six feet tall and 200 pounds, with mustaches. Moreover, Officer Allan had no information that another person lived at that address. Under the circumstances, it was reasonable for Officer Allan to suspect that defendant was the driver. Indeed, defendant later said that he and the actual driver—Fattalini—were often mistaken for each other or brothers.
After losing sight of the truck, Officer Alan relayed a description of the driver wearing a red shirt, who he thought was defendant, to Officers Clark and Lee and sent them to defendant’s residence to resume surveillance. They then observed a person arrive at the residence in a vehicle associated with defendant. Moreover, the person matched both defendant’s characteristics and Officer Allan’s description of the truck driver, including the red shirt.
Under these circumstances, we conclude that it was reasonable for the officers to think that defendant was the driver of the truck and detain him at Officer Allan’s direction for the traffic infraction until Officer Allan could arrive to confirm his identity.
Defendant asserts that even if it were reasonable to mistake him for Fattalini, none of the officers had reasonable grounds to detain him for evading or fleeing from Officer Allan’s attempt to make a traffic stop because the applicable statutes for refusing to comply with a lawful order (Veh. Code, § 2800) or flight from a peace officer (Veh. Code, § 2800.1) require that the peace officer be in uniform and/or driving a marked police car, and Officer Allan was working undercover in an unmarked car.
That, in fact, the officers detained the wrong person does not undermine the validity of the detention because a reasonable mistake of fact concerning the identity of a suspect does not render otherwise lawful police conduct unreasonable and unconstitutional. (Hill v. California (1971) 401 U.S. 797, 803-804 (Hill).)
In Hill, supra, 401 U.S. 797, the United States Supreme Court upheld a search incident to an arrest, even though the arrest was made of the wrong person, who had identified himself as someone other than the person whom the police were looking for. The court explained, “The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.” (Id. at pp. 803-804, italics added.)
In Illinois v. Rodriguez (1990) 497 U.S. 177, the court upheld a search pursuant to consent that the police obtained from a person they reasonably, but mistakenly, thought was a resident authorized to give it. The court cited and reaffirmed Hill, stating, “It is apparent that in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement—is not that they always be correct, but that they always be reasonable. As we put it in Brinegar v. United States [1949] 338 U.S. 160... ‘Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’ ” (Illinois v. Rodriguez, supra, 497 U.S. at pp. 185-186.)
Here, the circumstances established a “sufficient probability” (Hill, supra, 401 U.S. at p. 804) that defendant was the truck driver described by Officer Allan based on matching physical characteristics, association with the same residence, and red shirts. Thus, it was reasonable to suspect and detain him.
Defendant claims the mistake was not reasonable because defendant and Fattalini “look nothing alike.” However, the booking photos of both men and the men themselves were before the court, which could observe their similar and dissimilar qualities and make a finding concerning whether they were sufficiently similar to be mistaken for each other. The court resolved that factual question, implicitly finding that defendant could be mistaken for Fattalini, and the record supports this finding. Although from up close, their differences might be so obvious as to prevent mistaken identity, Officer Allan was not standing next to Fattalini when he saw him leave in the truck but was around 75 yards away. Moreover, the two men share the same general physical attributes of race, height, weight, hair color. According to defendant, he and Fattalini were often mistaken for brothers or each other. And both were wearing red shirts that day.
Defendant also claims the mistaken identification and detention were not reasonable because Officer Allan’s investigation was inadequate and unreasonable. He notes that Officer Allan did not develop information from other sources to corroborate the anonymous calls; nor did he attempt a controlled buy, stake out the house for an extended period, interview neighbors about suspicious traffic, or gather intelligence from “street denizens” who might know about those who sold PCP. Defendant further suggests that Officer Allan should have used binoculars to conduct surveillance. Moreover, he asserts that Officer Allan could have checked various data bases to determine whether anyone besides defendant lived at the residence. He also could have run a DMV check on him and on the partial license plate for the truck, which would have revealed that he did not own a truck and that the truck might belong to Fattalini. We are not persuaded.
With the benefit of hindsight, it is easy to conceive of additional measures that Officer Allan could have taken that might have prevented the mistaken detention. As noted, however, reasonableness, not certainty, is the touchstone under the Fourth Amendment (Hill, supra, 401 U.S. at p. 804), and we do not find that Officer Allan’s failure to conduct a more thorough investigation either before commencing surveillance or between the time he lost sight of the truck and defendant’s detention rendered defendant’s detention unreasonable as a matter of law.
For example, we cannot say that it was unreasonable for Officer Allan to not use binoculars to watch defendant’s house. The basic purpose of surveillance and Officer Allan’s distance from the house do not suggest that binoculars were essential, and they could have made the surveillance more conspicuous.
Nor does the record show that taking any of the other measures suggested by defendant would have prevented the mistaken detention. The record shows that the truck ran the red light within blocks of the house, and Allan lost sight of the truck shortly thereafter. Officer Allan conceded at the hearing that he could have run a vehicle check on the partial license plate. However, once Officer Allan lost sight of the truck, his immediate concern was to have surveillance of the house resumed, and he acted immediately to inform Officers Clark and Lee about his initial surveillance, the departure of the truck and infraction, the truck driver, and defendant. Thereafter, he continued to look for the truck. We fail to see how a vehicle check would have helped him locate that truck. Moreover, even if Officer Allan had run a check and learned that it was not registered to defendant but was associated with Fattalini, that information would not necessarily have precluded the possibility that defendant was the driver or negated Officer Allan’s belief that the driver was defendant, because the truck was parked at defendant’s house. Indeed, as it turned out, defendant and Fattalini were old friends who were mistaken for each other or brothers, and Fattalini sometimes stayed at defendant’s house.
Defendant faults Officer Allan for electing not to pursue the truck. However, Officer Allan testified that such pursuit was against Department policy concerning traffic violations, and after he looked for the truck for a short time, he had to ensure the continued surveillance of the house, run the operation, and coordinate different efforts related to the surveillance.
In short, the record does not demonstrate that Officer Allan’s investigation was inadequate. Therefore, we conclude that defendant was reasonably, albeit mistakenly, detained for the traffic infraction.
Given this conclusion, we reject defendant’s claim that because his detention was unlawful, the subsequent arrest was also unlawful. (See Wong Sun v. United States (1963) 371 U.S. 471, 484-485 [unlawful detention taints subsequent arrest].) Since defendant was uncooperative with a lawful effort to detain him, Officers Clark and Lee had probable cause to arrest him for resisting a peace officer. (Pen. Code § 148, subd. (a)(1).) We also reject defendant’s claim that the unlawful detention and the resulting unlawful arrest rendered defendant’s later consent to search his house for Fattalini involuntary. (See People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”].)
However, defendant alternatively claims that even if the detention and arrest were lawful, the consent, when viewed in light of the totality of the circumstances, was involuntary and clearly the product of a forceful show of authority and subterfuge. We disagree.
When the prosecution relies on consent to justify a warrantless search, there must be substantial evidence that the consent was voluntary and not the product of coercion through explicit or implicit threats or a submission to express or implied assertions of authority. (Bumper v. North Carolina (1968) 391 U.S. 543, 548; People v. Zamudio (2008) 43 Cal.4th 327, 341; People v. Boyer (2006) 38 Cal.4th 412, 445-446; People v. Johnson (1968) 68 Cal.2d 629, 632.) The amount of time elapsed between the crime and the consent, the courtesy or discourtesy of the officers, time available to consider signing the consent form, and the vulnerability of the consenting person may show voluntariness. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 229; Payne v. Arkansas (1958) 356 U.S. 560, 562, 566-567.)
The voluntariness of consent is a question of historical fact. (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 227; People v. James (1977) 19 Cal.3d 99, 107.) Thus, we will uphold the trial court’s determination, whether express or implied, if it is supported by substantial evidence. (People v. Siripongs (1988) 45 Cal.3d 548, 566-567; People v. Williams (2007) 156 Cal.App.4th 949, 961.)
Although Officer Clark drew his gun when defendant became uncooperative, Officer Allan testified that no guns were drawn when he spoke to defendant. And although defendant remained handcuffed, Officer Allan denied making threats or offers to coerce or induce defendant’s consent, and there is no evidence to the contrary. Officer Allan testified that he immediately realized the mix-up and explained to defendant that he had been mistaken for the person who had previously left in the truck. According to Officer Allan, when defendant learned about the mistake, he calmed down and was no longer agitated or combative. He told Officer Allan who that man was and said they were often mistaken as brothers or for each other. When Officer Allan advised defendant that Fattalini had outstanding warrants and asked if he could search the house for him, defendant said “yes” or “yeah.”
In concluding that defendant’s consent was voluntary, the court implicitly found Officer Allan to be credible and his testimony to be true. We accept the court’s credibility determination, and, since Officer Allan’s testimony supports the court’s conclusion, we accept it as well. (E.g., People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.) Moreover, and contrary to defendant’s claim, the totality of the circumstances do not establish as a matter of law that defendant’s consent was coerced or otherwise involuntary.
Defendant notes that he was handcuffed at gunpoint. Moreover, although Officer Allan realized the mistake, he did not apologize to defendant or offer to take the handcuffs off. Defendant further asserts that the area was “swarming with police” dressed in raid gear.
Defendant concedes that none of these factors alone invalidates consent. Given Officer Allan’s testimony, we do not find them so inherently threatening and coercive as to vitiate what otherwise appears to be voluntary consent. (Cf. People v. Ratliff (1986) 41 Cal.3d 675, 687 [evidence that officers initially drew guns and handcuffed an uncooperative person and an officer may have threatened to get a warrant and break into the trunk if consent were not given did not render consent invalid].)
Defendant also claims that he was tricked into giving consent. He argues that telling him the search was for Fattalini was a subterfuge to get consent so the officers could look for evidence of drug dealing. In support of this claim, defendant notes Officer Clark’s testimony that he did not recall any discussion about Fattalinin before he entered the house and knew nothing about Fattalini except that someone with that name was connected to the case.
Defense counsel did not raise this subterfuge claim below and thus the trial court did not have an opportunity to make required findings and rule on it. Ordinarily, the defendant may not initiate new grounds on appeal based upon theories not raised by either party at the time of the hearing. (See People v. Williams (1999) 20 Cal.4th 119, 136 [the scope of issues upon review must be limited to those raised during argument]; People v. Danielson (1992) 3 Cal.4th 691, 708, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [a party’s failure to raise a particular issue deprives their opponent of the opportunity to attempt to rebut it with evidence or argument]; People v. Fauber (1992) 2 Cal.4th 792, 831; People v. Gordon (1990) 50 Cal.3d 1223, 1251-1252; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [“To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised”].)
As the Attorney General correctly points out, defendant relies on one passage of Officer Clark’s testimony but ignores another passage that undermines his claim. It is true that Officer Clark could not recall any “discussion” about Fattalini and knew no personal information about him. However, he also testified that he entered the house looking to see if anyone was inside, and in particular Mark Fattalini. Moreover, although Officer Allan was initially interested in defendant’s house because of the anonymous calls about drug dealing there, it was reasonable for him to seek permission to search the house for Fattalini because Fattalini was a parolee who had outstanding warrants, he was associated with defendant, he had been seen leaving the house, and there had been a break in the continuity of surveillance, giving him an opportunity to return without being seen.
Defendant also asserts that the Officer Clark “meandered around [his] house looking for ‘indicia’ ” of something and thereby exceeded the scope of a legitimate protective sweep for Fattalini. In other words, once inside the house, Officer Clark conducted fishing expedition for incriminating evidence against defendant. We disagree.
Absent some prior illegality, evidence seized in plain view from a place where an officer has a right to be is admissible. (Harris v. United States (1968) 390 U.S. 234, 236; North v. Superior Court (1972) 8 Cal.3d 310, 306; People v. Superior Court (Aslan) 2 Cal.App.3d 131, 135 [“Fourth Amendment does not prohibit the seizure of evidence ‘which is readily visible’ and ‘accessible’ to the police”].)
Here, Officer Clark entered the house with permission to look for Fattalini. He said that the door to a bedroom was open, and from mail he saw outside the door, he could tell that it was defendant’s room. He properly entered because it was a place where Fattalini might be found. And once inside, he saw a baggie of white powder in plain view on the dresser. Contrary to defendant’s claim, the record does not suggest that Officer Clark “meandered” through the house sifting through defendant’s items or prying into closed places where Fattalini could not possibly have been located.
In sum, the record does not establish that defendant’s detention and arrest were unlawful, defendant’s consent was involuntary, or the search of defendant’s house exceeded the scope of a valid protective sweep or defendant’s consent. Accordingly, we conclude that the baggie of white powder was lawfully seized, and the trial court correctly denied defendant’s motion to suppress.
V. Disposition
The judgment is affirmed.
WE CONCUR: McADAMS, J., DUFFY, J.
While defendant’s observation appears to be correct, he was not detained for evading Officer Allan; he was detained for running a red light. As noted, defendant concedes that such conduct is a violation of the Vehicle Code.
Nevertheless, to forestall a claim in ineffective assistance of trial counsel, we will address this claim.