Opinion
2d Crim. No. B200450
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. JASON C. SMALL, Defendant and Appellant.
Robert D. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jason C. Small appeals the judgment following his no contest plea to driving with a blood alcohol concentration of .08 percent or more (Veh. Code, § 23152, subd. (b)), and the denial of his motion to suppress evidence. He admitted prior convictions for alcohol-related reckless driving (§ 23103.5), driving under the influence of alcohol (§ 23152, subd. (a)), and driving with a blood alcohol concentration of .08 percent or more (§ 23152, subd. (b)). Small contends that a warrantless entry into his house and arrest violated the Fourth Amendment prohibition against unreasonable searches and seizures and were not based on any exigent circumstance. We affirm.
All statutory references are to the Vehicle Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
The summary of facts is derived from testimony at the preliminary hearing.
Small staggered out of a supermarket smelling of alcohol and drove away. A supermarket clerk called the police, gave the police the vehicles license number and described Smalls vehicle as a gray SUV. The clerk also reported that Small was wearing a yellow shirt and light shorts, and had a bandage on his right leg. Police officer Wyatt Kasfeldt was given this information and dispatched to look for the vehicle.
A few minutes later, Small drove his gray SUV, a GMC Jimmy, into the condominium complex where he lived. A neighbor saw Small sideswipe a Honda parked in the condominium parking lot, back up, hit the Honda again, and park his vehicle near the Honda. The Honda was owned by Tina Lenoir, Smalls next-door neighbor. Lenoir reported the accident to the police and Officer Kasfeldt and other officers drove to the condominium complex and contacted Lenoir. Lenoir told Kasfeldt that, when she heard the sound of the collision, she and her boyfriend came out of her condominium apartment and saw Small standing next to his vehicle. Lenoir and her boyfriend attempted to talk to Small and obtain insurance information. Small refused to converse with them, and became irate, began yelling, and walked to his condominium apartment.
Officer Kasfeldt examined the Honda and Smalls SUV and confirmed that they both had been damaged in an accident. Kasfeldt and other officers then walked to Smalls apartment. The apartment sliding glass door was open but a screen door was closed. Kasfeldt saw Small inside the apartment and determined that Small fit the description of the intoxicated man at the supermarket. Small was shirtless, but was wearing light shorts and had a bandage on his leg. Kasfeldt called out to Small. Small did not respond verbally, but walked backwards towards Kasfeldt.
Kasfeldt opened the screen door, and entered the apartment. Small turned to face Kasfeldt who stated that he was investigating a traffic collision and a report that Small had been driving under the influence of alcohol. He asked Small to step outside of the apartment. Small stepped outside of the apartment and had a further discussion with Kasfeldt. After an initial denial, Small admitted he had been driving while intoxicated and had been involved in the collision with Lenoirs Honda.
Small smelled of alcohol, had glassy eyes, his speech was slurred, and he swayed back and forth nearly falling down. Concluding that he was intoxicated, Officer Kasfeldt conducted field sobriety and preliminary alcohol screening tests. Small admitted drinking, taking substantial amounts of prescription drugs including Prednisone, Vicodin, Soma, and methadone, and nearly fell during the field sobriety test. Kasfeldt called paramedics because of a possible overdose of prescription drugs.
Small was charged with driving under the influence (§ 23152, subd. (a)), driving with a blood alcohol concentration of .08 percent or more (§ 23152, subd. (b)), and misdemeanor hit and run (§ 20002, subd. (a)). He pleaded not guilty and filed a motion to suppress evidence. (Pen. Code, § 1538.5.) After the trial court denied the suppression motion, Small entered a no contest plea to driving with a blood alcohol concentration of .08 percent or more, and admitted his three prior convictions. The court suspended imposition of sentence and placed Small on three years formal probation, including a condition that he serve 180 days in county jail. The other charges were dismissed.
DISCUSSION
Small contends that the trial court erred in denying his motion to suppress, arguing that the police officers warrantless entry into his home and ensuing arrest violated his Fourth Amendment rights. We disagree. The entry into his home was minimal, unrelated to his arrest or the seizure of evidence, and justified under the exigent circumstances exception to the warrant requirement.
A trial courts ruling on a motion to suppress evidence is reviewed as a mixed question of law and fact. We accept the trial courts factual findings supported by substantial evidence and all reasonable inferences therefrom, but exercise independent judgment in determining if, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. (People v. Lenart (2004) 32 Cal.4th 1107, 1119; People v. Woods (1999) 21 Cal.4th 668, 673-674.)
A police officer may arrest a person without a warrant where the officer has reasonable cause to believe the person has been driving under the influence of alcohol or drugs and when the person may destroy or conceal evidence unless immediately arrested. (§ 40300.5, subd. (e).) In People v. Schofield (2001) 90 Cal.App.4th 968, we held that the Legislature intended section 40300.5, subdivision (e) to apply to the metabolic destruction of alcohol and/or drugs in a persons body so that a suspected drunk driver, by the simple passage of time, is destroying or concealing evidence. (Id., at pp. 969, 972-973; see Pen. Code, § 836.)
In pertinent part section 40300.5 provides: "In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: [¶] (a) The person is involved in a traffic accident. . . . [¶] (d) The person may cause injury to himself or herself or damage property unless immediately arrested. [¶] (e) The person may destroy or conceal evidence of the crime unless immediately arrested."
Schofield did not involve entry into the suspects home and did not authorize a police officer to forcibly enter a residence to prevent the destruction of evidence of drunk driving. (People v. Schofield, supra, 90 Cal.App.4th at p. 975.) Physical entry into the home by police officers without a warrant in order to conduct a search or seizure or make an arrest is presumptively unreasonable. (Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749.)
The presumption against a warrantless entry into the home can be overcome by a showing of probable cause and a recognized "exigent circumstance," including the need to prevent the imminent destruction of evidence. (Minnesota v. Olson (1990) 495 U.S. 91, 100; Welsh v. Wisconsin, supra, 466 U.S. at p. 749.) Our Supreme Court has recently held that a warrantless police entry into a home to arrest a person for driving under the influence of alcohol was constitutionally permissible to prevent the imminent destruction or dissipation of blood-alcohol evidence through the bodys normal metabolic processes. (People v. Thompson (2006) 38 Cal.4th 811, 825-827 (Thompson).) Thompson is dispositive of the instant case.
In Thompson, a witness contacted the police after seeing the defendant intoxicated and driving erratically and dangerously. Police arrived after defendant had entered his home. (Thompson, supra, 38 Cal.4th at pp. 814-815.) The front door of the home was open. When officers rang the doorbell, a woman came to the open door, told the officers that the owner of the vehicle was sleeping, and refused to let the officers inside. An officer looking through the open door saw a man who matched the description of the drunk driver walking through the residence. He was the defendant. At the officers request, defendant came to the front door. He was staggering, slurring his speech, and smelled of alcohol. Defendant refused to submit to intoxication tests and, when he began to walk away, the officer entered the house and arrested him. (Id., at pp. 815-816.)
The court concluded that the police had probable cause for a warrantless arrest of defendant as the intoxicated driver based on information from the witness, defendants ownership of the vehicle and its presence at his residence, and confirmation of ownership by the person who came to the door after the police arrived. (Thompson, supra, 38 Cal.4th at pp. 818-819.) "`Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. . . ." (Illinois v. Gates (1983) 462 U.S. 213, 232, quoted in Thompson, at p. 818.)
Thompson then addressed the issue of entry into the home, holding that the bodys metabolization of alcohol qualified as the imminent destruction of evidence justifying an entry into defendants home without a warrant. (Thompson, supra, 38 Cal.4th at p. 825.) Because defendants blood-alcohol level would diminish during the delay necessary to obtain a warrant, the police were justified in acting immediately. (Id., at p. 826.) The court also emphasized that the intrusion into the home was the minimum necessary to effect the arrest. There was no forced entry because the front door was left open, and the entry extended only a few feet into the home and areas already exposed to public view. (Id., at p. 828.)
In the instant case, the evidence shows that Officer Kasfeldt had ample justification to conclude that Small was intoxicated when he drove away from the supermarket and collided with Tina Lenoirs Honda, and that he remained intoxicated after he entered his condominium apartment. Accordingly, the police had probable cause for a warrantless arrest of Small and the minimal entry into Smalls home that occurred prior to the arrest.
At the time of the entry, Officer Kasfeldt had a strong reason to believe Small was the person that had been "staggering, [and] smelled or emitted an odor of alcohol" at the supermarket, based on the supermarket clerks report. Kasfeldt had also matched the license place number provided by a supermarket clerk with the number on Smalls vehicle which was parked in the parking lot of the condominium complex where he lived. Kasfeldt also could reasonably believe Small had been at the scene of the collision, and acted inappropriately with Lenoir and her boyfriend. And, when Kasfeldt arrived at Smalls condominium apartment, he could see Small inside and confirmed the identification of Small based on his leg bandage.
Moreover, before any entry into the apartment, Officer Kasfeldt called out to Small and, although there was no testimony that Small appeared intoxicated while in his apartment, it reasonably can be inferred that Small was visibly intoxicated due to his strange behavior in silently walking backwards, and his visible and pronounced intoxication when he came out of his apartment.
Officer Kasfeldts entry into Smalls apartment was even more limited and minimal than the entry in Thompson. Entry was through an unlocked screen door into an area exposed to public view, and in plain view of Small whose actions were not inconsistent with consent to enter. More importantly, there was no arrest or investigation while Kasfeldt was inside the apartment. Small voluntarily walked outside where the field sobriety tests and preliminary alcohol screening occurred and Small was arrested. We do not dispute that a closed screen door may create a reasonable expectation of privacy. (See U.S. v. Arellano-Ochoa (9th Cir. 2006) 461 F.3d 1142, 1145.) But, in this case, no material events occurred inside the apartment and the suspect simply walked out of his home when requested to do so by the police. As we stated in People v. Schofield, supra, 90 Cal.App.4th at page 975, "`it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes." The Fourth Amendment prohibition against warrantless entry into an individuals home "`. . . does not apply to arrests made at the doorway, because the doorway is considered a public place." (Id., at p. 976; see LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3d 947, 955.)
Small also challenges the arrest and intoxication testing because they occurred more than two hours after the incident at the supermarket. Section 40300.5, subdivision (a), permits a warrantless arrest when the police have reasonable cause to believe that the person had been in a traffic accident and section 40300.6 provides that the arrest must occur "within a reasonable time and distance away from the scene of a traffic accident." Here, Small was arrested for driving under the influence of alcohol as well as being involved in an accident. In addition, considering the circumstances in their totality, Smalls arrest approximately two hours after the supermarket incident and one hour after the accident satisfies the statutory standard of reasonable time and distance. (See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 235.)
The judgment is affirmed.
We concur:
GILBERT, P.J.
COFFEE, J.