Opinion
F049397
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LIAM SOUNDARA, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Gomes, J.
William Soundara (William) pled no contest to a charge of possession of marijuana with the intent to sell (Health & Saf. Code, § 11359) after his motion to suppress the evidence seized at his house was denied. He argues the trial court erred in denying his motion. As in the trial court, William argues his consent to search his house was vitiated by the misconduct of sheriffs department officers who conducted the search. We disagree and affirm the judgment.
We refer to appellant William Soundara as William and his father as Chanpheng to avoid confusion, not out of disrespect.
FACTUAL AND PROCEDURAL SUMMARY
We review a ruling on a motion to suppress using well-established principles. First, we review the explicit and implicit factual findings to determine if they are supported by substantial evidence. (People v. Soun (1995) 34 Cal.App.4th 1499, 1507.) Next, we exercise our independent judgment to determine if the facts found by the trial court establish a violation of the Fourth Amendment. (Ibid.) The following facts were not disputed in any meaningful manner. Therefore, our only task is to exercise our independent judgment to determine if the Fourth Amendment was violated.
William contends there was not substantial evidence to support the trial courts determination that the driveway was part of the front yard of the Soundara residence. As we shall explain, resolution of this issue is unnecessary.
The only witnesses to testify at the suppression hearing were Deputy Christopher Guerra and Detective Brett McAndrews. Guerra received information from a confidential informant that Chanpheng Soundara (Chanpheng) was in possession of marijuana at the Soundara home. Guerra assembled a team of officers to travel to the residence to attempt to obtain permission to search the residence. The officers did not have a search warrant.
The front yard of the Soundara home is surrounded by a short (perhaps three feet high) chain-link fence. Along the west side of the property is a driveway that extends to the rear of the house and beyond, presumably leading to a detached garage. There are separate gates to the driveway and the sidewalk that lead to the front door of the residence. A second higher fence crosses the driveway at the rear of the house, enclosing the back yard to the property. No officer breached this fence prior to Soundara giving consent to search the home.
When the officers arrived at the Soundara home, Guerra knocked on the front door while assisting officers were surrounding the residence. Guerra did not receive an immediate response to his knock.
At the same time as Guerra was approaching the front door, McAndrews walked up the driveway on the west side of the home with two other officers. As the three officers walked towards the fence at the rear of the house, one officer spoke with William, who was inside the house, through a window. The window was approximately three-quarters of the way to the rear of the house. The officer was approximately five to six feet from the window when contact began and walked as close as three to four feet from the window while talking to William. McAndrews was not sure whether William or the officer initiated the contact. In any event, the officer asked William to open the front door.
William answered the front door and eventually granted Guerra permission to search the residence. Approximately one pound of marijuana was recovered, as well as a shotgun. William admitted he owned the marijuana. Chanpheng, who returned to the house after the search had begun, admitted he possessed the gun, but claimed he was holding it for a friend.
William filed a motion to suppress evidence, arguing the presence of the officers on the driveway vitiated his consent. The trial court found William provided lawful consent and denied the motion. William subsequently pled no contest to possession of marijuana for sale (Health & Saf. Code, § 11359) and admitted he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). He received the indicated sentence of a 16-month mitigated term, enhanced by one year for serving a prior prison term.
DISCUSSION
William argues the evidence seized at his house should be suppressed because the conduct of the officers vitiated his consent. He relies on the initial contact when the officers were on the driveway and the presence of at least five officers on the scene.
William makes two arguments related to the officers presence on the driveway on the side of the house. First, he argues the trial courts conclusion that the driveway was part of the front yard was not supported by substantial evidence. Second, he argues the officers engaged in misconduct when they contacted Soundara from the driveway.
Whether substantial evidence supports the trial courts conclusion that the driveway was part of the front yard of the home is of no moment because the officers did not commit misconduct when they spoke to William from the driveway.
William relies on two cases, People v. Camacho (2000) 23 Cal.4th 824 and Lorenzana v. Superior Court (1973) 9 Cal.3d 626, both of which cited many other cases, to support his argument that the officers presence on the driveway was misconduct. These cases stand for "the salutary rule of law that observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. On the other hand, when observations are made from a position to which the officer has not been expressly or implicitly invited, the intrusion is unlawful unless executed pursuant to a warrant or one of the established exceptions to the warrant requirement." (Lorenzana, at p. 634.) In each case, the officers observed illegal activity occurring through the window that led to a nonconsensual search and the arrest of the defendants.
The officers in this case did not observe anything from the window. Nor did they rely on their observations through the window to justify the search. William consented to the search of the house, and there was no evidence to contradict the officers testimony on this point. Therefore, Camacho and Lorenzana are inapposite.
It is possible, we suppose, that the officers conduct while speaking with William through the window could have constituted misconduct. But there is no evidence the conversation was anything other than a request for William to answer the front door. Such a request is not, in and of itself, coercive.
Nor is there any evidence to support Williams contention that he saw five or six officers when he opened the door, or at any other time. It is true that there were at least five officers at the Soundara residence. However, no one testified that William saw all five officers, or that he was somehow intimidated by their presence.
DISPOSITION
The judgment is affirmed.