Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. RIF119918 of Riverside County. Douglas E. Weathers and Dallas Holmes, Judges. Affirmed in part; reversed in part and remanded with directions.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Marvin E. Mizell and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Manjit Singh appeals his conviction of one count of being a felon in possession of a firearm (count 1), one count of brandishing a firearm (count 2), and one misdemeanor count of obstructing a police officer (count 4). He contends that the trial court erred in failing to grant his motion to suppress evidence as a result of an unlawful search and seizure. We agree. Accordingly, the judgment must be reversed in part, as to counts 1 and 2.
FACTS AND PROCEDURAL HISTORY
The trial evidence established the following: On the morning of October 10, 2004, Martha Carrillo was in the front yard of her Riverside home, watering her lawn. The Singh family, including defendant and his parents, lived next door. As Carrillo was struggling with her water hose, she heard voices yelling angrily. Across the street on the corner, Carrillo saw a young Black girl with a stroller, a young boy, a White man and a teenage White girl. In addition, there were two young Black men in the middle of the street; the young men were yelling at defendant, who was standing in the driveway in front of his residence.
Carrillo saw defendant reach into his right front pants pocket. Defendant withdrew a silver-colored handgun and held it at chest level. When defendant brought out the gun, the two young men backed off and ran away. The young woman with the stroller also turned around and ran away, saying, “I’m calling the police.” Carrillo herself retreated inside her own home. Soon, she heard police cars. Eventually, she came out and told one of the officers that she had seen defendant with a gun.
Officer Karla Beler of the Riverside Police Department received a dispatch call about a person with a gun at approximately 10:00 a.m. on October 10, 2004. The subject was described as a Hispanic male, wearing a white tank top, a white straw hat, blue jeans and white shoes. The subject was also seen to have a leaf blower and a rake. The dispatcher reported that the subject allegedly had taken a gun from his pants pocket and pointed it at some passersby on the street.
Officer Beler proceeded in her marked patrol car to the address broadcast on her radio. She saw a man, later identified as defendant, in front of the house. Although defendant is not “Hispanic,” the investigating officers testified that he “matched the description” of the suspect in the dispatch report. Defendant was wearing a white straw hat, blue jeans and shoes, but no shirt. (No tank top was recovered at the scene.) A rake and a leaf blower were lying nearby in a flower bed, however.
Officer Beler stopped her patrol car, alighted, and accosted defendant. Trying to keep things low key, she called to him, “Hey, bud, come here,” when she initially contacted him. Defendant, whose lower body was already oriented toward the house, made split-second eye contact with the officer, and walked away. Defendant walked around the side of the house, through the gates, toward the open garage of the residence. Officer Beler never saw defendant’s hands because his hands were in front of him, i.e., his body was between his hands and the officer as he walked away.
As defendant left the officer’s line of sight, she drew her weapon and called for backup. A short time later, approximately 45 seconds to one minute, defendant reemerged from around the side of the house. Officer Beler ordered defendant to show his hands and walk toward her. Defendant complied. As defendant walked toward the officer, she could see that his pants pockets were bulging. She ordered defendant to kneel and then to lie face down on the ground.
Another officer arrived. Officer Beler was then able to approach defendant, handcuff him, and search his pockets and waistband. She asked defendant if he had a gun; he said no. In defendant’s pockets, Officer Beler found leather gloves, combs, and keys, but no gun. After four or five minutes, defendant was placed in the back of a patrol car.
Officer Beler asked if there was anyone else in the residence; defendant said no. He stated that the residence was his parents’ house, but they were at church. Officer Beler asked defendant what had happened earlier that morning, but defendant did not specifically answer the question. Instead, he made random general statements, saying, “Those f***ing n*****s. I was minding my own business. This is my house.”
Other police units arrived. “[B]ecause of the open garage and because of where [defendant] went when [Officer Beler] arrived,” the other officers conducted a “protective sweep” of the area “for other suspects or any victims.” The “protective sweep” turned up nothing. It was then that Officer Beler had another officer stay with defendant, while she went to the garage to search for the gun.
Officer Beler’s purpose was specifically to conduct a search for the suspected gun where she had last seen defendant. A flatbed truck was plainly visible parked inside the open garage. Some tree clippings and empty trash cans were on the bed of the truck. Officer Beler testified that, at some point, Officer Skipper got into the bed of the truck, searching through the trash cans and clippings. A trash can and a trash bag were removed from the bed of the truck during the search. Eventually, Officer Skipper stepped on a hard object in the bed of the truck. He found a gun under the branches in the truck bed, above the left rear wheel area.
After officers found the gun, they ran defendant’s information through dispatch and discovered that he had previously been convicted of a felony. They then arrested defendant for being a felon in possession of a firearm.
In 1993, defendant had suffered a felony conviction for selling narcotics.
Defendant was charged with one count of being a felon in possession of a firearm (Pen. Code, §§ 12001.6, 12021, subd. (a)(1)); two counts of brandishing a firearm (Pen. Code, § 417, subd. (a)(2)), one count each as to John Doe No. 1 and John Doe No. 2, presumably, the two young Black men in the street who were yelling at defendant; and one misdemeanor count of obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). A 1985 prior felony conviction for assault was also alleged as a strike prior.
Before trial, defendant had moved to suppress the gun recovered during Officer Beler’s search of the garage, as an unreasonable warrantless search. The People opposed the motion. The opposition papers did not raise the issue of standing, but at the hearing, the People orally raised the contention that defendant lacked standing to object to the search. The prosecutor argued that the residential property belonged to defendant’s parents, not to defendant, and that defendant lived in a separate portion of the residence premises. Additionally, defendant had stated that the garage was his parents’ garage.
The trial court found that defendant lacked standing to contest the search of the garage.
Judge Douglas E. Weathers.
The People asserted that there was probable cause to arrest defendant for misdemeanor resisting an officer for disobeying her order to stop and, upon confirmation by witnesses, for menacingly displaying the gun.
The court also found, “[b]ased upon the totality of the circumstances,” that “[w]hen the contact with the suspect [was] made, his hands [were] concealed from the officer[].” Defendant then went out of the officer’s sight toward the open garage, and reemerged about a minute later. “[A]t that point in time he now becomes compliant, but there is nothing in his hand . . . . [¶] It seems reasonable . . . for the officer[] to suspect or consider that in all likelihood the defendant entered into the garage to dispose of a gun or some other form of contraband and a reasonable belief, based upon the brief amount of time that he was out of sight, that whatever contraband or objects he had were likely to have been disposed of in the garage.” The court deemed the search reasonable “in the interest of public safety and officer safety as well as to avoid any loss or destruction of evidence.” The court therefore denied the motion.
Defendant moved for reconsideration of the ruling, on the ground that the motion had been denied on an erroneous procedural issue (standing). Defendant argued that there had therefore been no substantive ruling on the merits of his suppression motion. The court denied the motion for reconsideration.
A jury found defendant guilty on count 1, felon in possession of a firearm; guilty on count 2, brandishing a firearm (against John Doe No. 1); and guilty on count 4, misdemeanor obstructing a police officer. The jury acquitted defendant on count 3, brandishing a firearm (against John Doe No. 2).
Defendant asked the court to exercise its discretion to dismiss his strike prior; the conviction was over 20 years old at the time of sentencing. Defense counsel argued that defendant should be admitted to probation. The court declined the request to dismiss the strike prior. The court sentenced defendant to the middle term of two years on count 1, doubled to four years as a second strike. He was sentenced to one year each on counts 2 and 4, to be served concurrently with the sentence on count 1.
Judge Dallas Holmes.
He said he did not enter his quarters through the front door.
Defendant filed a timely notice of appeal.
ANALYSIS
I. The Court Erroneously Denied Defendant’s Motion to Suppress Evidence
A. Standard of Review
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
B. Threshold Issue: Defendant Had a Reasonable Expectation of Privacy Sufficient to Contest the Search
The trial court denied the suppression motion in part on the ground that defendant “lacked standing” to contest the search of the garage and flatbed truck. Whether defendant had a reasonable expectation of privacy, so as to assert an objection to the search, is a mixed question of law and fact which, as noted, we review independently. (See People v. Brendlin, supra, 38 Cal.4th 1107, 1113, citing People v. Ramos (2004) 34 Cal.4th 494, 505.)
“The United States Supreme Court has largely abandoned use of the word ‘standing’ in its Fourth Amendment analysis. (See Minnesota v. Carter (1998) 525 U.S. 83, 87-88.) ‘It did so without altering the nature of the inquiry: whether the defendant, rather than someone else, had a reasonable expectation of privacy in the place searched or the items seized.’ (People v. Ayala[, supra,] 23 Cal.4th 225, 254, fn. 3.) We have embraced the high court’s formulation and no longer analyze this substantive issue as one of standing. (Ibid.; People v. Valdez (2004) 32 Cal.4th 73, 121, fn. 24.)” (People v. Brendlin (2006) 38 Cal.4th 1107, 1112, fn. 1, cert. granted on a different point in Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 1145, 166 L.Ed.2d 910], judg. vacated and remanded on other grounds in Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400, 168 L.Ed.2d 132].)
I note that defendant, himself, concedes that he testified below that there were three separate structures. While I would not rely on facts adduced at trial to bolster the conclusion that there were, indeed, three separate structures, that is precisely what the trial exhibits show. In fact, contrary to defendant’s testimony at the hearing on the motion, they show there were three separate roofs — one for the main part of the house, one for defendant’s portion of the house and one for the garage, which was located a substantial distance from both.
Cross-examining defendant at the suppression hearing, the prosecutor asked, “that garage is your parents’ garage, isn’t it?” Defendant replied, “Yes, ma’am.” The People therefore argued that the residence belonged to defendant’s parents, not to defendant. The People contended further that defendant lived in a separate portion of the residence. Thus, defendant had no ownership interest, and presumably no reasonable expectation of privacy, in the main residence or in the garage.
Other facts showed, however, that the residence was a single building. Defendant, for example, denied that he lived in a guesthouse or that there was such a separate guesthouse on the property. Defendant testified directly that he lived in his parents’ home. Although defendant customarily came and went through a rear or side entrance, defendant stated that the house was “a five-bedroom house and one property,” that the structure was “a five-bedroom house and all together,” and that the garage and the living areas were covered by a single roof. Defendant testified that the house was “only one, one property,” that “[t]here’s only one house,” and that he lived “[i]n the same, one house, same place.” Defendant did not have a separate living area, but the house was “just like the same house, all together,” and he repeated that “[i]t’s all together,” and yet again that it was “[o]ne house, one all together.” He insisted that “I don’t live in a separate building. I live in one building, one house.”
Defendant agreed that “[t]his one home is connected” and that the garage was connected to the house. Defendant lived “in the back” of the house and normally entered and exited by going through the back gate. Defendant’s parents “go in the back or the front” gate of the residence. The front door was not locked on the day in question, and defendant had “permission to be in the main part of the house when [his] parents [were not] there,” not least because he “ha[d] to clean the yard and water the vegetables and the front lawn.” Defendant had no separate living room and no separate kitchen. The People conceded that there appeared to be access between the portions of the house where defendant’s bedroom, on the one hand, was located, and the rest of the house. The trial court then inquired, “So the issue, of course, is the garage . . . ?”
Both the prosecutor and the court seemed to be under the mistaken impression that ownership was required in order to assert a reasonable expectation of privacy. The court “f[ound] that there is not standing based upon the testimony of the defendant that the garage is not his.” As defense counsel pointed out at the hearing, however, title to the property was not determinative: “He doesn’t have to own it. He could be at a hotel room if he spends the night there. He has standing. It’s a pretty low burden for us, and I think we’ve established that he lives at the property.”
The critical matter was whether defendant had a “ ‘legitimate expectation of privacy’ in the area searched.” (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641].) “Even a mere houseguest ‘ “has a legitimate expectation of privacy in the home where he is staying because that residence has become his substitute home both in his own mind and in the mind of his host.” ’ (People v. Cowan (1994) 31 Cal.App.4th 795, 799, quoting from Minnesota v. Olson (1990) 495 U.S. 91, 99) . . . .” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132.) “If overnight guests have standing to challenge a search of the residence they are visiting, it is clear that, for many of the same reasons, ‘[f]amily members regularly residing upon the premises, though not parties to the legal arrangements concerning who has the possessory interest in those premises, also have standing of essentially the same dimensions.’ [Citation.]” (Id. at p. 1133.)
The courts have long recognized that a tenant, hotel guest, visitor, or other occupant may have a constitutionally protected legitimate expectation of privacy in nonowned premises. (See McDonald v. United States (1948) 335 U.S. 451 [69 S.Ct. 191, 93 L.Ed. 153] [lodger in rooming house]; Ware v. Dunn (1947) 80 Cal.App.2d 936, 944 [guest in hotel room]; People v. Thompson (1996) 43 Cal.App.4th 1265, 1269 [rental tenant, despite being under restraining order to stay away from premises, had standing where he had not yet been evicted]; see also Minnesota v. Olson, supra, 495 U.S. 91 [110 S.Ct. 1684, 109 L.Ed.2d 85] [defendant’s status as overnight guest was alone sufficient to show that he had expectation of privacy in home to invoke rule against warrantless arrest at home]; Rawlings v. Kentucky, supra, 448 U.S. 98 [while ownership is factor to consider in standing cases, primary inquiry is whether government officials violated defendant’s legitimate expectation of privacy]; People v. Koury (1989) 214 Cal.App.3d 676, 688, 691 [defendant had legitimate expectation of privacy in estranged wife’s residence, where he regularly visited overnight with children, had key and unrestricted access, kept personal papers and clothing in bedroom, and was in front yard at time of search]; cf. also, e.g., LaDuke v. Nelson (9th Cir. 1985) 762 F.2d 1318, 1326, 1332 [a person can have an objectively reasonable expectation of privacy in a tent pitched on private property]; accord LaDuke v. Castillo (E.D.Wash. 1978) 455 F.Supp. 209; U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673, 677 [similar: notwithstanding that a tent is easily moveable, the reasonable expectation of privacy in a tent on private property “is not destroyed when a person’s tent is pitched instead on a public campground where one is legally permitted to camp”].)
So far as the evidence showed here, defendant lived full time at the residence. There were not shown to be any separate structures on the property. The garage was connected to the house, and from defendant’s bedroom inside the house there was access to the rest of the house. On the day in question, the front doors of the residence were unlocked, and defendant had free and open access to the entire premises, including the garage. Defendant was busily engaged in yard work. He had some garden tools lying in a flower bed nearby and garden gloves in his pockets. The flatbed truck parked in the open garage was laden with equipment and debris associated with such work.
We agree with defendant that he did meet his burden of demonstrating a reasonable expectation of privacy. The evidence was uncontradicted that defendant lived at the address searched, and that the garage and other portions of the structure were all connected and all included under the same roof. Defendant had the same access to, and the same legitimate expectation of privacy in, the premises (including the garage) as any other resident member of the household. Plainly, defendant did have the right to object to the search. The trial court erred in denying the motion to suppress on the ground of lack of standing.
C. The Search Was Not Shown to Be Reasonable Under Fourth Amendment Standards
The court also denied the motion to suppress, however, on the basis that the search was objectively reasonable in any event. This ruling was “[b]ased upon the totality of the circumstances,” that defendant had gone out of sight into the garage when he was first accosted by Officer Beler. The court opined that, “[i]t seems reasonable . . . for the officer[] to suspect or consider that in all likelihood the defendant entered into the garage to dispose of a gun or some other form of contraband,” and concluded that the search was reasonable “in the interest of public safety and officer safety as well as to avoid any loss or destruction of evidence.”
This ruling was erroneous in several respects.
1. Proper Conduct of a Motion to Suppress Required Live Testimony to Establish Facts Necessary to Decide the Motion
The defendant has the initial burden of producing evidence to make out a prima facie case of an illegal search or seizure. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1043.) Here, defendant satisfied that burden, inasmuch as it was undisputed, as counsel on appeal have conceded, that there was no warrant for the search. (See People v. Williams (1999) 20 Cal.4th 119, 128.) A search without a warrant is presumptively unreasonable. (Id. at pp. 127-128.)
As part and parcel of the initial showing, the defendant must demonstrate a reasonable expectation of privacy in the area to be searched (i.e., “standing”) so as to be entitled to object to the search. Defendant testified extensively on that matter, as outlined above.
Once the defendant has met his or her initial burden, the burden then shifts to the prosecution to establish, by a preponderance of the evidence, the facts justifying the warrantless search. (People v. Johnson (2006) 38 Cal.4th 717, 729.)
Penal Code section 1538.5 contemplates that the facts required to decide a motion to suppress evidence shall be presented at a full hearing, via the testimony of live, sworn, witnesses, whose testimony is to be reported and transcribed. (People v. Johnson, supra, 38 Cal.4th 717, 728-731.)
Mystifyingly, the deputy district attorney appearing at the motion below was apparently unaware of the foundational requirement to present the testimony of the officers in support of the motion.
The sole witness at the hearing was defendant. Defendant testified exclusively about facts relating to his residence on the premises. Defendant’s moving papers made a prima facie showing that the search was without a warrant, and the People did not dispute that the search was warrantless. The burden was therefore upon the People to justify the search. Because the People presented no evidence at the hearing, however, it could not meet that burden.
As noted, in People v. Johnson, supra, 38 Cal.4th 717, the California Supreme Court held that Penal Code section 1538.5 requires the presentation of live testimony, and not merely affidavits, at a suppression hearing. (Johnson,at pp. 725-726.) Here, of course, the prosecution did neither. No affidavits were appended to the opposition papers nor did any officer testify at the hearing. There was therefore no evidence whatsoever to support a warrantless search.
In the absence of any facts, presented by the testimony of witnesses, to support or justify a warrantless search, the presumption of unreasonableness remained wholly unrebutted. The trial court therefore was compelled to grant the motion to suppress, based on the utter failure of the prosecutor to comply with ordinary hearing procedures. The court’s ruling denying the motion was clearly erroneous on the state of the record.
2. Even If the Totality of All the Evidence Is Considered, There Was No Justification for the Warrantless Search
As noted, the utter absence of any evidence at the suppression motion to justify the warrantless search compels the conclusion that the trial court erred in denying the motion.
The Attorney General—adverting to evidence presented not at the hearing on the motion, but at trial—argues that the search was justified by exigent circumstances.
Evidence not presented at the hearing on the motion to suppress cannot be considered to justify a warrantless search. (Cf. People v. Smith (2002) 95 Cal.App.4th 283, 300 [burden remains on prosecution to establish a proper justification for a warrantless search and its burden is not eliminated or diminished by the absence of the defendant’s reply].) Nevertheless, even if the evidence presented at trial could be considered, it still does not establish any justification for the warrantless search, under any of the traditionally accepted theories.
a. The Search of the Garage Was Not Properly Incident to a Lawful Arrest
The trial evidence established that, when Officer Beler initially accosted defendant, he walked away, out of sight, toward the open garage. He returned 45 seconds to one minute later. At that time, with her gun drawn, Officer Beler ordered defendant to lie on the ground. He complied. Officer Beler waited for backup officers to arrive before securing defendant’s person, handcuffing him, and searching his bulging pockets. She found no weapon or other contraband on defendant. Defendant was within a short time placed in the back of Officer Beler’s patrol car, handcuffed.
At that point, defendant had been arrested, no weapons found on his person, and none within his immediate presence or reach. Officer Beler’s decision to search the garage for a weapon therefore cannot be justified as “incident to a lawful arrest.” While a search incident to a lawful arrest may take place after a suspect has been arrested and immobilized, the scope of the search is limited to the area within the suspect’s immediate control or reach: that is, “the area from within which he might gain possession of a weapon or destructible evidence.” (Chimel v. California (1969) 395 U.S. 752, 763 [89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694]; see also New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768]; People v. Rege (2005) 130 Cal.App.4th 1584, 1588.)
Once defendant here had been immobilized, handcuffed, searched, arrested, and placed in the back of the patrol car, there was no area within his immediate presence or reach so as to justify a search of the garage as incident to a lawful arrest. The proper focus is the area into which the defendant could have grabbed at the time of his arrest, not the area that was under his immediate control at the time of the search. (People v. Rege, supra, 130 Cal.App.4th 1584, 1590.) As the trial court in Rege described it: “ ‘[T]he law is, I believe, that they can search incident to the arrest area within [the defendant’s] immediate control, arm’s length essentially, where people might have placed a weapon, contraband, et cetera. [¶] From the evidence I heard, it appears the bag was within that zone. However, the nightstand appears to me to probably be outside that zone. And just because you have a warrant to arrest someone, it’s not a search warrant. The search has to be within an immediate area, generally described as within arm’s length.’ ” (Id. at p. 1587, italics added.)
Here, the area within defendant’s arm’s length would be that area of the front yard where defendant was ordered at gunpoint to lie down. It manifestly did not include the garage. The search of the garage cannot be justified as incident to defendant’s arrest.
b. There Were No Exigent Circumstances
The Attorney General argues that the search was justified by exigent circumstances. We discern no exigency to justify the search. The “exigent circumstance” presented by the People is simply the possible “presence of a weapon in the open garage, which for the protection of the officers and any other person within the immediate vicinity should have been removed and rendered safe.” The potential presence of a weapon inside a private garage did not constitute “exigent circumstances.”
In an analogous Fifth Amendment Miranda context, New York v. Quarles (1984) 467 U.S. 649 [104 S.Ct. 2626, 81 L.Ed.2d 550], a rape victim told police officers that the perpetrator, who had a gun, had just entered a grocery store. The officers went into the store, found the suspect, frisked him, and found an empty holster. Without giving Miranda warnings, the officers asked where the gun was located, and the suspect indicated, “ ‘Over there,’ ” behind some boxes. (Id. at p. 652.) The United States Supreme Court held that there was a public safety exception to the Miranda requirement where the gun had been discarded in a supermarket, and might have posed a danger to any member of the public who happened to enter. (Id. at p. 657.)
There was no such similar exigency or threat to public safety here, where the gun had not been discarded in a commercial, open-to-the-public location. There was no “overriding need . . . to rescue persons in danger or to protect human life,” (People v. Coffman (2004) 34 Cal.4th 1, 56) such as might be the case where a firearm is left in a public shopping area. In addition, Quarles applies in the Fifth Amendment context of a custodial interrogation without providing proper constitutional advisements. No like principle has been applied in Fourth Amendment search and seizure cases. In any case, there was utterly no need to suspend the constitutional requirements—to obtain a warrant for a further search—for any safety reason.
The search here was without a warrant, and, therefore, presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 587 [100 S.Ct. 1371, 63 L.Ed.2d 639].) The presumption of unreasonableness may be overcome, “ ‘by a showing of one of the few “specifically established and well-delineated exceptions” to the warrant requirement [citation], such as “ ‘hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . 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’ ” [citation]. 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. . . . [Citation.]’ (People v. Celis (2004) 33 Cal.4th 667, 676.)” (People v. Ormonde (2006) 143 Cal.App.4th 282, 291.)
The seriousness of the offense (e.g., brandishing a firearm) “does not, by itself, give rise to an exigent circumstance. Even a homicide does not warrant a blanket exception to the Fourth Amendment on that basis. [Citation.] [¶] The arrest was likewise occurring outside, not inside, the [residence]. . . . None of the police officers who testified articulated any reason to believe that other victims or suspects were involved . . . or inside the [residence].” (People v. Ormonde, supra, 143 Cal.App.4th 282, 291.)
“ ‘ “[E]xigent 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. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.’ [Citation.] However, an exigency excusing the warrant requirement does not also excuse the requirement that probable cause exists for searching a home for evidence or suspects. [Citation.] In our view, the objective circumstances known to [the officers here] fell short of supplying them with probable cause to believe there was someone in the [residence] who was either in danger or dangerous to them. [Citation.]” (People v. Ormonde, supra, 143 Cal.App.4th 282, 292.)
Nothing was objectively articulated here, which could support a reasonable, probable cause to believe that any exigency, any danger, existed. So far as anyone knew, defendant was at home alone. He was outside the residence. All the alleged victims were strangers, in the street or on the street corner, except the neighbor, Carrillo. All the alleged or potential victims had left the scene; Carrillo had retreated inside her own home. No facts whatever gave any reason to believe that anyone else might have been either involved in or victimized by defendant’s conduct. There was no probable cause to support any exigency.
c. The Automobile Exception Did Not Apply
The automobile exception did not apply as the flatbed truck was parked in the garage on private property and was not being driven on the roadway. There are two justifications for the so-called “automobile exception” to the requirement to obtain a search warrant: (1) mobility and (2) reduced expectations of privacy in highly regulated vehicles capable of traveling on public highways. (United States v. Ross (1982) 456 U.S. 798, 806 [102 S.Ct. 2157, 2163, 72 L.Ed.2d 572, 582]; South Dakota v. Opperman (1976) 428 U.S. 364, 367-368 [96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004].) “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes—temporary or otherwise—the two justifications for the vehicle exception come into play.” (California v. Carney (1985) 471 U.S. 386, 392-393 [105 S.Ct. 2066, 2070, 85 L.Ed.2d 406, 414] [dealing with a “motor home” as a vehicle subject to the automobile exception].) Conversely, however, when a vehicle is not being used on the highways, and when it is found stationary at a place regularly used for residential purposes, the automobile exception does not “come into play.”
“California v. Carney clarifies that the automobile exception applies when the vehicle searched is ‘found stationary in a place not regularly used for residential purposes.’ [Citation.] Thus, we have concluded that automobile exception may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search. See United States v. Sinisterra, 77 F.3d 101, 104-05 (5th Cir.1996) (‘Here, the mall parking lot was not related to anyone’s residence.’); see also United States v. Williams, 124 Fed.Appx. 885, 887 (5th Cir.2005) (‘[S]ome support exists for the proposition that the automobile exception does not apply when a vehicle is parked in the defendant’s private driveway . . . .’).” (U.S. v. Fields (5th Cir. 2006) 456 F.3d 519, 524-525.) “[E]ven the automobile exception applies only when a vehicle is on the open road or is capable of movement and is ‘in a place not regularly used for residential purposes—temporary or otherwise.’ ” (U.S. v. Gooch, supra, 6 F.3d 673, 677, citing California v. Carney, supra, 471 U.S. 386, 392 [105 S.Ct. 2066, 2070, 85 L.Ed.2d 406, 411].)
Here, the vehicle, the flatbed truck, was stationary, not being driven on any public road, and was parked inside the garage of a private home. That was manifestly a “ ‘place . . . regularly used for residential purposes.’ ” The automobile exception did not apply to justify the search.
d. The Search Was Not a Proper “Protective Sweep”
A “protective sweep” is a quick, limited premises search incident to a lawful arrest at a residence. It is permitted if the arresting officer has a reasonable belief that there is another person on the premises who poses a danger to those on the arrest scene. (See Maryland v. Buie (1990) 494 U.S. 325, 333 [110 S.Ct. 1093, 1098, 108 L.Ed.2d 276, 285]; People v. Dyke (1990) 224 Cal.App.3d 648, 661.) “It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Maryland v. Buie, supra, 494 U.S. 325, 327 [110 S.Ct. 1093, 1094, 108 L.Ed.2d 276, 281].)
Here, the People have not articulated even a reasonable belief or suspicion that the area to be swept harbored a dangerous person. (People v. Celis (2004) 33 Cal.4th 667, 678.) So far as anything was known, defendant was at home alone. There were apparently three or four, or more, officers on the scene, who conducted a detailed examination of the grounds, feeling through flower beds and acting as if they were going to search the neighbor’s trash cans, among other things, rather than simply making a “cursory visual inspection of those places in which a person might be hiding.” (Maryland v. Buie, supra, 494 U.S. 325, 327 [110 S.Ct. 1093, 1094, 108 L.Ed.2d 276, 281].)
The neighbor who had called in the report, Martha Carrillo, testified that she saw four officers conducting a search at defendant’s residence. There was no fence between the properties, and the officers were searching near Carrillo’s trash cans under her kitchen window. Carrillo herself feared that “the officer is going to go through my trash, and I didn’t want them to do that so I called her [i.e., Officer Quillen] over.” Carrillo and her sister talked to Officer Quillen “a little.” Quillen then left them, and she and the other officers continued the search. Altogether, the officers searched around the Singh residence for “more than a half hour,” according to Carrillo. Carrillo saw them searching the flower beds “on the side of my house and the ones in front, and I think they also went on the side beds.” Carrillo stated, “There were a lot of flowers, so they were kind of just looking in there feeling.”
At some point, Officer Quillen returned to Carrillo and her sister, and they talked “for a while.” Carrillo saw no one else at the Singh residence. She thought that defendant “was by himself,” as his parents “go to church on Sundays.” Carrillo did not see any officers search inside the Singh house.
Carrillo’s description of the search was inconsistent with a “protective sweep” search. She watched and waited for the officers’ arrival, and observed the ongoing search. The officers did not make a “protective sweep” of the interior of the residence; no one went inside the residence. The officers were not making a cursory inspection for people who might be hiding; that would not have taken “more than a half hour,” as Carrillo testified.
Officer Beler testified that defendant walked away from her, out of sight, but returned within 45 seconds to one minute. She ordered him to the ground, and he complied. She had asked for emergency traffic only on her radio and requested backup. The backup officer, Officer Quillen, arrived less than a minute after Beler’s emergency call. Additional backup officers arrived, so Beler was able to handcuff defendant, get him to his feet, and search his pockets. He had no gun on his person.
Officer Beler testified that, when the other backup officers arrived, “because of the open garage and because of where he went when I arrived, the officers searched that area to see if there were—for other suspects or any victims.”
After four or five minutes of having defendant stand by Beler’s police car, Officer Beler had him placed inside the vehicle. Officer Beler specifically testified that she “did not participate in the search for the—to clear the residence for any suspects or victims,” i.e., the “protective sweep.” Officer Beler was also specifically asked, “Is anyone located during this protective sweep?” to which she plainly replied, “No.”
Officer Beler testified that Officer Quillen came to stay with defendant in the patrol car, and Beler then decided to “go to the area where . . . I last saw [defendant],” for the specified purpose, “[t]o see if I can locate the weapon.” By the time Officer Beler went to the garage, therefore, she was not conducting a “protective sweep” to find persons. She was specifically searching for a weapon.
Officer Beler testified that the gun was located about 35 minutes after she had arrived on the scene. She denied that the search for the gun had been extensive, but spent a little bit of time waiting for backup, a little bit of time handcuffing defendant and placing him in the car, and a little bit of time sweeping the area for other subjects. The remainder of the time was devoted to searching for the gun, and trying to locate the original caller. So far as the evidence showed, Officer Quillen was the only officer who tried to locate “the original caller,” and Carrillo’s testimony was to the contrary—that she herself initiated contact with the searching officers, who seemed about to rummage through Carrillo’s trash cans.
Officer Quillen testified that she was the first backup officer to arrive on the scene. When the other backup officers arrived, she was detailed to “stand cover on the house because they were going to do the protective sweep.” Her job was to make sure that no one came out the doors or windows during the protective sweep. She testified that no one did come out. It was only after standing cover during the protective sweep that she returned to the patrol car where defendant was held. It was there that Officer Quillen was approached by Carrillo. Carrillo did not want to talk to her while defendant was nearby, so Officer Quillen recontacted Carrillo after defendant had been transported to the station. Officer Quillen did not take part in the search of the garage.
Officer Skipper did search the garage. When he arrived, Officer Beler, Officer Quillen, a sergeant, and “[p]robably a couple other officers” were already on the scene. Defendant had already been detained in handcuffs. He described his activity as dual-purpose, “a protective sweep and trying to locate a weapon.” He defined a “protective sweep,” as “[j]ust looking for any possible people hurt in and around the area,” but reiterated his second purpose: “And looking for weapons where someone grabbing them may get hurt.” Officer Skipper testified that he conducted a “protective sweep” of the garage, but found no one inside the garage. He denied that the “protective sweep” was at all separate from the search for the gun: “I say protective sweep and search, and to me it is pretty much the same thing. I’m looking for any possible victims or anybody hurt in the area. [¶] I believe it was a whole continuation deal where we’re looking for any outstanding weapon or anybody hurt laying down.”
By the time Officer Beler decided to search for the gun in the garage, however, ample time for a limited, cursory “protective sweep” had already elapsed, and her testimony indicated that, to her knowledge, the other officers’ “protective sweep” had already cleared the residence for any other persons. What the neighbor and reporting party, Carrillo, observed, was a half-hour search, feeling around for a gun, not a cursory “protective sweep” to find persons. Officer Quillen’s testimony also indicated that the “protective sweep” must have been completed before the garage was searched, inasmuch as she was detailed to stand watch on the house during the “protective sweep,” and had been relieved of that duty to attend to defendant while Officer Beler went to search the garage. By no stretch of the imagination was the search for a gun in the garage a “protective sweep”—a cursory and limited search for persons. That search had already been completed before Officer Beler went to the garage.
Ultimately, “ ‘[t]he facts known to the officers before they performed the protective sweep fell short of what Buie requires, that is, “articulable facts” considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety.’ ” (People v. Ormonde, supra, 143 Cal.App.4th 282, 294, quoting People v. Celis, supra, 33 Cal.4th 667, 679-680.) There were no facts to support any inferences that would warrant any reasonable belief or suspicion that the area swept harbored any person posing a danger to the officers. The search of the garage cannot be justified as a “protective sweep,” and manifestly, the officers were not behaving as if that is what they thought they were doing. They were searching for a gun. That search was not permitted under the Fourth Amendment.
3. The Error Was Not Harmless
There was no evidence whatsoever presented to the trial court at the hearing on the suppression motion to justify the search. The utter failure to follow proper procedure, and to present any testimonial evidence of the officers, left the record devoid of any facts to support a warrantless search. The search was presumptively unreasonable, and on the state of the record at the hearing, the trial court could not properly have denied the motion. The denial was plain error.
Even if, however, the additional evidence developed at trial could have been considered, it established beyond cavil that there was no justification for the warrantless search of the garage and truck: the search was not proper as a search incident to arrest, there were no exigent circumstances, the automobile exception did not apply, and the search was not a proper “protective sweep.” There was no theory upon which the gun could be admitted into evidence.
The search violated defendant’s Fourth Amendment rights. It was constitutional error to admit the gun into evidence in violation of those rights. The Attorney General argues that the admission of the gun was nevertheless harmless. We disagree.
The Chapman standard of review applies. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710].) Under that test, the burden is on the People to demonstrate that, beyond a reasonable doubt, the unlawfully admitted evidence did not contribute to the verdict. (People v. Boyette (2002) 29 Cal.4th 381, 428; People v. Magee (2003) 107 Cal.App.4th 188, 194.)
Here, the prosecutor not only fought to admit the gun itself, she also sought to admit the bullets taken from the gun. Her closing argument focused attention on the physical gun, present in court, to substantiate and corroborate the report of the neighbor, Carrillo. She argued that the jury must find “[t]hat he drew or exhibited a weapon. It was a Jennings 9-millimeter semiautomatic, People’s Exhibit 1. I had that gun right there.” (Italics added.) The prosecutor dismissed defense arguments that the investigation was not properly documented with reports and photographs, with the remark, “And you don’t need photographs of the gun. We have done better. We brought the gun here for you today to look at and to examine.” The prosecutor deemed the presence of the gun an essential part of the case. The Attorney General has not dissuaded us of the prosecutor’s own assessment. We cannot say, beyond a reasonable doubt, that the admission of the gun at trial did not contribute to the verdict.
Defendant’s conviction as to counts 1 and 2 must be reversed. (Count 4, resisting or obstructing a peace officer, was wholly unrelated to the presence or absence of the gun. The verdict as to count 4 therefore is unaffected by the erroneous ruling on defendant’s motion to suppress the gun.) The matter is remanded with directions to the trial court to grant defendant’s motion under Penal Code section 1538.5 to suppress the gun seized during the search of the garage and truck.
II. Upon Any Retrial, the Court May Exercise Its Discretion to Dismiss Defendant’s Prior Strike Conviction
Defendant has also argued on appeal that the trial court erred in declining his request to exercise its discretion to dismiss his alleged strike prior under the “Three Strikes” law. “[A] trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) When a court declines to dismiss a strike prior, the defendant may seek review of the trial court’s exercise of that discretion. Naturally, the claim is reviewed under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Our reversal of defendant’s two felony count convictions renders it unnecessary to decide the Williams/Romero question (People v. Williams, supra, 17 Cal.4th 148; People v. Superior Court (Romero) (1996) 13 Cal.4th 497).
Should defendant be retried and again convicted, the question will again be committed to the sound discretion of the trial court, a discretion which will not be disturbed on appeal in the absence of a showing that the trial court’s decision was irrational or arbitrary. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
DISPOSITION
Defendant had a personal and reasonable expectation of privacy in the home and the garage searched without a warrant. His motion to suppress could not properly be denied on the ground that he lacked standing to object. Neither could the motion be properly denied on the basis that the warrantless search was otherwise objectively reasonable, inasmuch as no evidence was presented at the hearing concerning the reasonableness of the search. Even if the totality of the evidence were considered, there was no evidence to justify the warrantless search under any established exceptions to the Fourth Amendment. The court erred in denying defendant’s motion to suppress. Defendant was prejudiced by the admission of the evidence (the gun). The judgment is therefore reversed in part as to the convictions on counts 1 and 2. The conviction as to count 4 is unaffected and the judgment as to that count is affirmed.
The matter is remanded with directions to the trial court to enter an order granting defendant’s motion to suppress the gun under Penal Code section 1538.5. The trial court may also conduct any further proceedings (e.g., retrial on counts 1 and 2, resentencing) consistent with this opinion.
I concur: GAUT J.
RAMIREZ, P.J., Dissenting.
I respectfully disagree with the conclusion of the majority that the trial court erred in denying defendant’s motion to suppress and the majority’s reversal of defendant’s convictions for being an ex-felon in possession of a firearm and brandishing a firearm.
“On appeal, . . . we review the appellate record for error, without considering matters not presented to the trial court.” (People v. Leonard (2007) 40 Cal.4th 1370, 1393.) Therefore, it is important to distinguish the facts that were known at the time the trial court ruled on the motion to suppress from those that were established later during trial.
In his motion to suppress, defendant recited facts which he stated had been taken from police reports. The police received a call from an unidentified citizen that someone had a handgun. They went to defendant’s home and saw that he matched the description given by the citizen of the person with the handgun. The first officer who arrived asked to speak to defendant, but he walked out of her view. He returned a minute later. He told the officers present that he lived at the house. They searched the garage “next to the house” and found the handgun in a truck in the garage. The written motion asserts “[Defendant] has standing to object to a search of the garage attached to his home.” The motion went on to assert only that once it has been established that the search was without a warrant, the burden shifts to the prosecution to justify the search under an exception to the warrant requirement.
In their written opposition to the motion to suppress, the People recited facts without reference to a source. An officer responded to a call about a Hispanic male, wearing a straw hat, white tank top and light blue jeans and holding a leaf blower. He had pulled out a silver gun while calling a Black man a racially offensive name. The officer contacted defendant, who matched the description, and attempted to contact him. When he saw the officer, defendant concealed his hands and waistband and moved towards the garage. The officer ordered him to stop, and he made eye contact with her, but did not stop. Defendant entered the open garage, concealed himself from the officer for about one minute, then reappeared. The officer ordered him to the ground and handcuffed him. She believed he had concealed the gun while he was out of her sight. After a back up officer arrived, a handgun was found in the back of a truck in the garage. Witnesses confirmed that this was the gun defendant had had earlier. The People did not address the standing issue, but, instead asserted that the seizure of the gun fell within the officer safety/public safety and the incident to arrest1 exceptions to the warrant requirement.
At the inception of the February 24, 2006 hearing on the motion to suppress, defense counsel began by saying, “The evidence first. I believe I have a burden to establish standing and then shift the burden to the People . . . .” To establish standing, counsel had his client testify. Defendant stated that he lived at 3847 Madison Street on October 10, 2004 and was arrested on that day in the front yard. He added that while he was in handcuffs, he saw the police searching around the house. This was the totality of his direct testimony. On cross examination, he stated that the “property” belonged to his parents, who lived in the main part of the house. He said he lived in the back and came and went through the back gate, entering his quarters through a back door,2 while his parents came and went through both the back and the front gates. When asked if he had permission to be in the main part of the house when his parents weren’t there, he said, nonresponsively, “Yeah, because I have to clean the yard and water the vegetables and the front lawn.” He said there were three separate buildings or structures, i.e., the main part where his parents lived, the back area where he lived and the garage. All three shared a roof, which was not a traditional roof, but “more of just a covering.” He said the garage was his parents.’
At the conclusion of defendant’s testimony, the prosecutor asserted that standing had not been established. Defense counsel told the court that if it felt that standing had not been shown, it was prepared to call the officer who first responded to the home. Counsel made an offer of proof that she would testify that defendant was found in the front yard at 3847 Madison and was seen going towards the back of the house and the officers conducted a search. Counsel pointed out that defendant had already testified that he lived there. The prosecutor added that this officer would also say that defendant told them that he lived in the back portion of the home. The prosecutor asserted that an aerial view of the property would show that this portion was “a separate area” and, therefore, defendant did not have standing to contest the search of the garage, which defendant, himself, had said was his parents’. In response to the trial court’s question, the prosecutor said that there appeared to be access from “th[e] structure [where defendant lives] into the structure where his parents live.”
The trial court ruled that defendant lacked standing “based upon [his] testimony . . . that the garage [was] not his.” The trial court allowed the parties to argue the matter further, then ruled as follows, “[T]here is a call received of a suspect with a gun. Upon arrival, [the police] find an individual that is fitting the description of . . . the call that’s received. When the contact with the suspect is made, his hands are concealed from the officers. He refuses orders to stop and conceals himself . . . entire[ly] by entering into a structure that is believed to be a garage . . . . [¶] He reemerges . . . [about] a minute [later] . . ., and at that point . . . he . . . becomes compliant, but there is nothing in his hand . . . . [¶] It seems reasonable . . . for the officers to suspect . . . that . . . the defendant entered into the garage to dispose of a gun or some other form of contraband and a reasonable belief, based upon the brief amount of time that he was out of sight, that whatever contraband or objects he had were likely to have been disposed of in the garage. [¶] Not knowing who . . . was inside the garage at that particular point in time, but holding a strong suspicion that the contraband or weapon was in the garage and that whoever was in the house or garage might have immediate access to that, it was reasonable to conduct a search . . . in the interest of public safety and officer safety as well as to avoid any loss or destruction of evidence.” The trial court denied the motion to suppress, “regardless of the standing issue.”
The majority states that the facts adduced at the hearing on the motion showed that the residence was a single building. (Maj. opn. at p. 9.) Defendant, who was not a native English speaker, testified repeatedly and nonresponsively to the prosecutor questions whether there were two residences on the property that there was “one property” and there was only one house. At first he denied that there were two separate structures, insisting it was a five bedroom house, “all together”, but then he admitted that “[t]his one home is connected.” He then drew the garage, which he stated was connected to the house, but he drew it separated from the house. When asked what he meant by his repeated references to “all together,” defendant said he meant there were separate structures or buildings that were covered by a “more of just a covering” roof. But then he fell back on his original insistence that he did not live in a separate building, that he lived in “one building, one house.” Given the defendant’s conflicting testimony (and drawing), I cannot agree with the majority that the evidence at the hearing showed that there was one building.3 Moreover, the trial court had the power to judge the credibility of the defendant. (People v. Sun (2007) 148 Cal.App.4th 374.) Given the almost preprogrammed appearance of his testimony about the structures on the property and the number of times he gave nonresponsive answers, the trial court was certainly entitled to reject his contradicted assertion that his quarters were part of his parents’ home and their garage.
I also disagree with the majority that the prosecutor and trial court seemed to be under the mistaken impression that ownership was a prerequisite to a reasonable expectation of privacy. (Maj. opn. at p. 10) If it had been, so much time would not have been spent at the hearing on the physical layout of the property. Moreover, as the majority points out, the courts have long recognized that home and hotel guests have standing, despite the lack of an ownership interest. There is no basis to assume that this prosecutor and this trial court were ignorant of this substantial area of the law. The myriad of cases the majority cites on the standing of guests and visitors (maj. opn. at p. 11) is ultimately unhelpful to determine standing based on the particular facts of this case, which are whether an adult child, living in a separate building from his parent’s dwelling, has a reasonable expectation of privacy in what he considered to be their garage, which was also a separate building, without evidence that any of his property was located there.
The majority states that defendant was doing yard work, there were garden tools in a flower bed and garden gloves in his pocket and the truck in the garage had garden debris and equipment in it. (Maj. opn. at p. 12.) However, none of these facts were before the trial court at the time it ruled on the motion to suppress. The majority also overstates the facts by asserting that defendant had “free and open access to the entire premises[.]” (Maj. opn. at p. 12.) While defendant testified that the structure where his parents lived was unlocked that day, when asked if he had permission to go in there when they were gone, he gave one of many nonresponsive answers that he did, because he had to clean the yard and water the vegetables and the front lawn, none of which would have required his entry into their home.
“There is no set formula for determining whether a person has a reasonable expectation of privacy in the place searched, but the totality of the circumstances are considered. [Citation.] Among the factors sometimes considered in making the determination are whether the defendant has a possessory interest in the thing seized or place searched (ibid.), ‘whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasions; whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.’ [Citation.] [¶] . . . [¶] ‘[F]amily members regularly residing upon the premises, though not parties to the legal arrangements concerning who had the possessory interest in those premises, . . . have standing . . . .’ [Citation.] ‘Unquestionably, . . . [offspring] of the person with the possessory interest . . . who . . . make those premises their home [have standing].’ [Citation.] [¶] . . . [¶] . . . [A]ll family members who reside in a home have a reasonable expectation of privacy from government intrusion in all areas of the home, even if internal familial rules restrict their use or access to certain areas.” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132-1135, italics added.)
As trial counsel for defendant noted below, the burden is on the defendant to establish that he has a legitimate expectation of privacy in the place invaded. (People v. McPeters (1992) 2 Cal.4th 1148, 1171.) On review of a motion to suppress, all presumptions favor the exercise of the trial court’s fact-finding power and its findings on factual matters, whether express or implied, must be upheld if they are supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) I believe that substantial evidence supports the trial court’s implied conclusion that defendant did not have a reasonable expectation of privacy in his parents’ garage.
Clearly, defendant did not have a possessory interest in the garage or in his parents’ home. There was no evidence he had a right to exclude anyone from either. He did not exhibit a subjective expectation that it would remain free from governmental invasion, nor did he take normal precautions to maintain his privacy, as the garage door was up while the officers were present and the contents of the garage were viewable from the street. There was no evidence defendant had any possessions either in the garage or in his parents’ home. While defendant was a member of his parents’ family, there was substantial evidence that he did not reside in his parents’ home, but rather, lived in what he said was a separate structure.
Next, the majority concludes that because the People presented no evidence at the motion to suppress and the parties did not stipulate that the facts recited in their moving papers could be considered as evidence, the People failed to carry their burden of justifying the search under an exception to the warrant requirement. However, I believe it is worthy of note that the parties did not disagree as to the facts that occurred — their disagreement was as to the legal consequences of those facts. Most probably because there was no dispute as to the facts, the prosecutor did not call the female officer to testify, even though she was sitting in the courtroom during the hearing on the motion. Based on the appearance that the parties were not disputing the facts, the trial court drew a legal conclusion based on those facts that the search was justified. I cannot fault the conclusion it reached. The majority’s use of facts adduced at the trial to undermine that conclusion, as well as any other reasons that might have justified the search, is inappropriate. (Maj. opn. at pp. 15-25.)
he majority cites the holding of People v. Johnson (2006) 38 Cal.4th 717 that a hearing on a motion to suppress requires the presentation of live testimony in support of their position that by failing to present live testimony, the people failed to carry their burden. However, I note that in Johnson, unlike here, the defense, at every opportunity, objected to the prosecution’s reliance on inadmissible evidence to carry their burden. (Id. at p. 722.)
In his moving papers and offer of proof at the hearing on the motion, defense counsel represented that a person matching defendant’s description was seen with a handgun by a citizen, the officer who arrived at the scene asked to talk to defendant, but he walked out of her sight and went from the front yard, where he was when the police arrived, towards the back of the house, he returned a minute later and officers searched the garage. During his testimony at the hearing, defendant stated that the garage was in the back. The only fact to which the defense did not explicitly agree which the prosecutor represented in his moving papers was that when defendant returned from the area of the garage, no gun was visible on his person. However, the defense did assert in their moving papers that the gun was found in the garage, thereby inferring that it was not in defendant’s actual possession when he returned from the garage.
The majority states that the unsubstantiated representation by defense counsel in his moving papers that there was no search warrant, which went unchallenged by the People, was prima facie evidence that there was no warrant. (Maj. opn. at p. 14.) That being the case, why can we not view defense counsel’s failure to dispute the facts recited in the People’s moving papers as an implicit agreement that those facts were true?
Additionally, her back up officer was, if not also present, available to testify at the hearing. Had defense counsel objected to the lack of testimony, the prosecutor could have easily put one or both officers on the stand.
The majority faults the conclusion based on evidence adduced at trial, which may not properly be considered here. (Maj. opn. at p. 19.)
Finally, I must disagree with the majority’s conclusion that admission of the gun requires reversal of defendant’s convictions. The next-door neighbor’s testimony was corroborated both by the testimony of the officer who first responded to the scene and the latter’s back-up officer, which included statements made by defendant. The first officer testified that she had information that defendant had a gun in his pocket. The next-door neighbor testified that defendant pulled a gun from his pocket and pointed it towards the two young Black men with whom he was having an argument in the street. The gun described by the caller, who was not the next-door neighbor, was silver, just as the former testified. When asked by the first officer what had happened, defendant told her that he had yelled racial comments at people. He referred to those people as “those fucking niggers.” Although the next-door neighbor did not hear what defendant had said to the two young Black men in the street, one of them told her that defendant was “motherfucker prejudice[d]” to which she responded, “Yes, I know.” The next-door neighbor reported to the back up officer that defendant had a gun and he used a racial slur. When the first officer confronted defendant, he disobeyed her commands to show his hands and come towards her. Instead, he turned away and concealed his hands, then quickly walked toward the side of the house, out of her range of vision, near the garage. On the way to the station, when she told him that he had been arrested because a gun had been found, he said, “You didn’t find a gun in my pockets” even though she had not told him that she had information that he had had a gun in his pocket.
The next-door neighbor testified that she had lived next to defendant and his family for three years and she knew defendant even before that. She said she and her husband had hired defendant to do yard work for them for six weeks when they first moved in. She called him by the affectionate nickname, “Flaco.” There were only two matters about which she could be lying, i.e., that defendant was the person involved and that he had a gun. Given her relationship with him, there was no reason to believe she lied about either. Therefore, in my opinion, beyond a reasonable doubt, the jury would have returned the verdicts it did even if the gun had not been introduced at trial.
Likewise, in Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 929, the appellate court held that the transcript of the preliminary hearing could not constitute the requisite proof by the People that the search was reasonable. However, the defendant had objected at the hearing on the motion to the introduction into evidence of the transcript. (Id. at p. 927.)
The majority also relies on People v. Ormonde (2006) 143 Cal.App.4th 282 to conclude that the fact that there was a gun in the garage and the officer did not know if anyone was in the house or garage was insufficient to create an exigent circumstance. However, Ormonde is distinguishable on its facts. There, officers arrested who they believed was a suspect in a domestic violence incident outside his friend’s apartment. (Id. at p. 286.) While the officers knew the defendant had some connection to the apartment, there was no reason to believe that a weapon had been involved in the incident or that a weapon or anyone was inside the apartment. (Id. at pp. 287, 291.) The victim was blocks away. (Id. at p. 289.)