Opinion
E045867
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY EUGENE BRENNAN, Defendant and Appellant.
Tom Stanley for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Following the denial of his suppression motion, defendant pled no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). In return, defendant was placed on formal probation on various terms and conditions. Defendants sole contention on appeal is that the magistrate judge erred in denying his suppression motion. We find no error and will affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
The factual background is taken from the suppression hearing.
About 1:55 on the morning of December 20, 2006, San Bernardino County Sheriffs Deputy Allen Iniguez and his partner went to defendants residence to investigate an anonymous report of drug activity at that location. Defendants residence was surrounded by a chain-link fence, which bore a sign noting "no trespassing." The deputies walked through an unlocked gate in the fence and knocked on the front door of defendants residence. Defendant answered the door, and one of the deputies advised him of the nature of the call. Defendant responded, "[T]heres no drug activity here," and invited the deputies into the home to take a look around. Once inside defendants residence, the deputies saw several rifles and guns in plain view mounted on a wall in defendants bedroom. After the deputies determined that defendant had previously suffered felony convictions, defendant was arrested.
II
DISCUSSION
Defendant argues his suppression motion should have been granted because he had a legitimate expectation of privacy in his fenced yard, which had a "no trespassing" sign. We disagree.
"[T]he `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (Payton v. New York (1980) 445 U.S. 573, 585 [100 S.Ct. 1371, 63 L.Ed.2d 639].) Accordingly, "[i]t is a `basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." (Id. at p. 586, fn. omitted.) Therefore, the People must establish that a warrantless search was justified by some exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830.)
In reviewing the propriety of the denial of defendants suppression motion (§ 1538.5), we are bound by the trial courts factual findings, including credibility determinations, whether express or implied, if they are supported by substantial evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1140.) However, we review questions of law independently to determine whether the challenged conduct meets constitutional standards of reasonableness. (Ibid.)
The touchstone of all Fourth Amendment determinations is reasonableness. (U.S. v. Knights (2001) 534 U.S. 112, 118 [122 S.Ct. 587, 151 L.Ed.2d 497] [finding a warrantless search authorized by a probation condition satisfied the Fourth Amendment because it was supported by "reasonable suspicion"]; U.S. v. Ramirez (1998) 523 U.S. 65, 71 [118 S.Ct. 992, 140 L.Ed.2d 191] [failure to knock and give notice during execution of a search warrant]; Ohio v. Robinette (1996) 519 U.S. 33, 39 [consent]; Maryland v. Garrison (1987) 480 U.S. 79, 87-89 [107 S.Ct. 1013, 94 L.Ed.2d 72 ] [error during the service of search warrant]; Oliver v. U.S. (1984) 466 U.S. 170, 177-178 [104 S.Ct. 1735, 80 L. Ed.2d 214] [search of open field].)
In Ohio v. Robinette, the United States Supreme Court described the proper method of assessing the reasonableness of official intrusions by police officers as follows: "Reasonableness, . . . is measured in objective terms by examining the totality of the circumstances. [¶] In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct. 1319 (1983), we expressly disavowed any `litmuspaper test or single `sentence or . . . paragraph . . . rule, in recognition of the `endless variations in the facts and circumstances implicating the Fourth Amendment. [Citation.]" (Ohio v. Robinette, supra, 519 U.S. at p. 39.) Hence, the high court has repeatedly reiterated that the proper inquiry necessitates a consideration of "all the circumstances surrounding the encounter . . . ." (Florida v. Bostick (1991) 501 U.S. 429, 439 [111 S.Ct. 2382, 115 L.Ed.2d 389].)
Defendant essentially asserts there was a trespass in his yard by the deputies when they walked through the unlocked gate with a "no trespassing" sign on it. In U.S. v. Karo (1984) 468 U.S. 705, 712-713 [104 S.Ct. 3296, 82 L.Ed.2d 530], the United States Supreme Court held: "The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation."
This case is analogous to People v. Manderscheid (2002) 99 Cal.App.4th 355, where the officers, while executing a parolee arrest warrant after they were informed by an informant that the subject of the arrest warrant could be found at the defendants house, "went to the back door by way of a gate accessible from the driveway," opened the gate in order to walk into the defendants backyard, and knocked on the door. (Id. at p. 358.) The defendant argued the Fourth Amendment violation invalidated the subsequently obtained written and oral consents to search the premises. (Manderscheid, at p. 361.) The Court of Appeal rejected this argument and held that the seizure was reasonable, since there was probable cause to believe that a potentially armed parolee who was the subject of an arrest warrant was at the defendants residence, and there was a legitimate public interest in ensuring he was promptly apprehended, particularly since he was hiding in a residential neighborhood. (Id. at p. 362.) The court also found that although the initial entry by the officer into the backyard in order to knock on the rear door was a technical trespass; it did not invalidate the subsequently obtained oral and written consents to search the residence. (Id. at pp. 361-362.) Relying on United States v. Karo, supra, 468 U.S. at pp. 712-713, the court explained: "Certainly, the fact that Detective Anderson trespassed in defendants backyard is `marginally relevant, but not conclusive, in determining whether the ultimate seizure of the contraband was reasonable." (Manderscheid, at p. 361.)
Likewise, in the present matter, the deputies entry into defendants yard was reasonable. The deputies went to defendants residence to investigate a report of drug activity occurring at defendants residence. They therefore had reasonable suspicion to believe drug activity was occurring at that residence. There is no evidence in the record to suggest that either deputy went to the rear of the house or peered inside the home. The evidence established that the deputies simply walked through an unlocked gate directly to the front of the house in an effort to make contact at the residence based on a report of drug activity occurring at that residence. Once the deputies made contact with defendant and informed him of the nature of the call, defendant granted the deputies permission to enter his home and look around. The deputies thereafter saw the guns in plain view mounted on the wall of defendants bedroom.
As the Manderscheid court found, the facts here created a legitimate public interest in promptly investigating the occurrence of possible drug activity occurring in defendants residence, outweighing the minimal intrusion caused by the purported trespass into defendants yard. Furthermore, the deputies here did not try to conceal the fact that they were present on defendants property. Moreover, the subsequent search and seizure at defendants residence by the deputies were not a product of trespass; rather defendant gave Deputy Iniguez permission to search his home.
The cases cited by defendant — People v. Camacho, supra, 23 Cal.4th 824 and Lorenzana v. Superior Court (1973) 9 Cal.3d 626 — do not convince us that his suppression motion should have been granted based on an unreasonable entry onto his property.
In People v. Camacho, supra, 23 Cal.4th 824, officers investigating a report of a "loud party disturbance" at 11:00 p.m. heard only an unidentifiable "`audible noise," when they arrived at Camachos residence. Without knocking at the front door, an officer walked into the side yard about 20 feet from the front of the house and 40 feet from the sidewalk. He came upon a large, uncovered side window. While the window was visible from the public street or sidewalk, the inside of the room was not. The neighbor on that side of the house would have difficulty seeing into the window because of a high cement block wall separating the two homes. The yard had no exterior lighting. (Id. at pp. 828, 833.) Balancing relevant factors such as the "lateness of the hour, the relative lack of seriousness of the phoned-in complaint, and the failure first to knock on defendants front door," the court concluded the officers acted unreasonably. (Id. at p. 838.)
Furthermore, the Camacho majority emphasized that had other facts been present, the trespass into the side yard may very well have been reasonable. The majority held: "Thus, had [Officers] Wood and Mora been dispatched to defendants house in response to a report of gunshots being fired, of screams being heard, or of a riot, a stabbing or some other serious crime, we cannot say their entry into the side yard would have been unlawful. Indeed, had the officers on their arrival at defendants house heard a raucous party, confirming the anonymous complaint that brought them there in the first place, and had they then banged on the front door to no avail, their entry into the side yard in an attempt to seek the source of the noise would likely have been justified. [¶] The facts here paint quite a different picture: Called to investigate a complaint of excessive noise, an infraction under the citys municipal ordinances, the officers arrived at defendants home late in the evening and heard no such noise. Without bothering to knock on defendants front door, they proceeded directly into his darkened side yard. Most persons, we believe, would be surprised, indeed startled, to look out their bedroom window at such an hour to find police officers standing in their yard looking back at them." (People v. Camacho, supra, 24 Cal.4th at p. 836, italics added.)
At a later point, the majority held: "As noted, if the facts were different, perhaps only slightly so, we might conclude the officers were entitled to enter defendants yard, thereby validating the lawfulness of their observations of defendant through his bedroom window. The lateness of the hour, the relative lack of seriousness of the phoned-in complaint, and the failure first to knock on defendants front door, all are relevant to evaluating the reasonableness of the officers conduct in this case. We cannot say, however, that the officers, having arrived at defendants house close to midnight in response to an anonymous complaint of a loud party and perceiving nothing amiss, were entitled to enter defendants private property without a warrant and look through his windows." (People v. Camacho, supra, 24 Cal.4th at pp. 837-838.)
The facts in the present case are very different from those in Camacho. Camacho involved a mere potential violation of a municipal noise ordinance — an infraction. The present case, by contrast, involves a potentially serious crime, drug activity occurring within the home. In Camacho, the two officers, upon arriving at the scene, made no effort to knock on the front door and, in fact, what they initially observed indicated that no noise violation was occurring. The entry into the side yard, which gave rise to the observations of the defendant packaging contraband, was unreasonable. In the present case, the deputies knocked on defendants front door and made contact with defendant, explaining to him the nature of their visit. The deputies did not make any effort to go to the side or back of the yard in order to make contact with defendant. Additionally, neither deputy peered through any window in an effort to dispel their suspicions. Moreover, the fact that the deputies walked through an unlocked gate with a "no trespassing" sign on it did not invalidate the subsequently obtained oral consent to search the home. The observation and seizure of the contraband were made after securing a separate oral consent — an established exception to the warrant requirement. (Soldal v. Cook County (1992) 506 U.S. 56, 65-66 [113 S.Ct. 538, 121 L.Ed.2d 450].) Camacho is thus not controlling.
The question in Lorenzana was "whether a citizen may properly be subjected to the peering of the policeman who, without a search warrant, walks over ground to which the public has not been invited but which has been reserved for private enjoyment, stands by a window on the side of a house and peeks through a two-inch gap between the drawn window shade and the sill, and thus manages to observe the conduct of those within the residence." (Lorenzana v. Superior Court, supra, 9 Cal.3d at p. 629.) The court concluded the procedure intruded upon the individuals reasonable expectation of privacy. (Ibid.)
In the case before us, the deputies did not create an artificial vantage point by standing in shrubbery and spying through a gap between a drawn window shade and sill. Instead, the deputies, investigating a report of drug activity occurring from the residence, walked through an unlocked front gate and knocked on defendants residence, entering only after having been invited to do so by defendant.
In view of the foregoing, and under the totality of the circumstances, the search and seizure of the firearms pursuant to an oral consent was reasonable, the magistrate properly denied defendants suppression motion.
III
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.