P. v. Scott

P. v. Scott

Filed 8/20/08 P. v. Scott CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. CAROL LYNN SCOTT, Defendant and Appellant.

B203199 (Los Angeles County Super. Ct. No. MA035021)

APPEAL from a judgment of the Los Angeles Superior Court. Thomas R. White, Judge. Affirmed.

Stephen M. Hinkle, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

_

Carol Lynn Scott was convicted of maintaining a place to sell a controlled substance and appeals the denial of her motion to suppress evidence recovered from the warrantless search of her apartment. We affirm.

FACTS

On April 16, 2006, Los Angeles County Sheriffs Deputy Jeffrey Knittel received a tip from an apartment manager that she suspected drugs were being sold from one of the apartments she managed in Lancaster. Two days later, Knittel and two other sheriffs deputies accompanied a housing inspector to the apartment. As they approached, Knittel smelled burning marijuana coming from the apartment. The housing inspector knocked on the door and identified himself but did not mention the deputies. After approximately two minutes delay, Carol Lynn Scott opened the door and Knittel noticed the smell of burning marijuana became stronger.

Deputy Knittel, who was in full uniform, asked her if there was anyone else in the apartment. Scott pointed toward the inside apartment hallway and answered, My boyfriend. Knittel walked into the apartment followed by the other two deputies. In the master bedroom, Knittel saw a man, Kenjuan Lamont Casey, lying face down on the bed, asleep. Knittel woke Casey, handcuffed him and led him out of the apartment. At this point, Knittel noticed several small baggies of marijuana on the floor in the hallway.

Deputy Knittel then asked Scott to sign an entry and search waiver. Scott thought about it for several minutes. Knittel explained she was free to refuse, it did not matter to him one way or the other, but told her he would obtain a warrant if she did. Scott then signed the form. The deputies searched the apartment and seized 56 grams of marijuana, packaging materials, two scales, and large bags containing marijuana residue. They also found $1,400 in small bills and a loaded handgun in the apartment.^[1]

Scott was charged with one felony count of possession of marijuana for sale and the complaint was amended to add one misdemeanor count of maintaining a place to sell a controlled substance. (Health & Saf. Code,  11359 & 11366; Pen. Code,  1170.12, subds. (a)-(d).) The trial court denied Scotts motion to suppress the evidence recovered from the apartment, finding that Scott gave implied consent to enter the apartment from her actions and the smell of the burning marijuana was sufficient to allow the deputies to make further inquiries.

Scott pled nolo contendere to the misdemeanor count and was sentenced to 90 days in county jail and two years summary probation.

DISCUSSION

Scott contends the search and seizure was improper because the officers lacked consent or other lawful authority to enter the apartment. According to Scott, the evidence seized from the search was  fruit of the poisonous tree  and inadmissible. We disagree.

I. The Sheriffs Lawfully Entered The Apartment.

A warrantless entry presumptively violates the constitutional proscription against unreasonable searches and seizures. (Payton v. New York (1980) 445 U.S. 573, 583-590.) The presumption of unlawfulness can be overcome by certain exceptions to the warrant requirement, including voluntary consent or exigent circumstances. (Welsh v. Wisconsin (1984) 466 U.S. 740, 749.)

Scott argues she did not impliedly consent to the entry into her apartment when she pointed to the inside hallway of the apartment in answer to Deputy Knittels question about whether someone else was in the home. Alternatively, she argues her consent was obtained by deception because the housing inspector failed to mention the presence of the deputies before she opened the door.

Whether Scott voluntarily consented to the deputies entry to the apartment is a question of fact for the trial court which must be upheld if supported by substantial evidence. (People v. Superior (1974) 10 Cal.3d 645, 649.) Although the trial court acknowledged various facts can be interpreted different ways[,] it found appropriate consent to enter the apartment from the facts at hand. Here, Scott opened the door, saw Knittel in full uniform, gestured to the interior of the apartment and did not protest when he entered the apartment. These facts demonstrate substantial evidence to support the trial courts finding that consent to enter was granted.^[2]

II. The Sheriffs Were Lawfully Conducting A Protective Sweep Of The Apartment When They Found The Baggies of Marijuana.

We also must consider whether the subsequent search and seizure of evidence was reasonable. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 6.) The legality of the seizure of the marijuana found in the hallway is dependent upon Deputy Knittels right to be in the hallway, where the baggies of marijuana were in plain view. (Ibid.)

The Supreme Court has independently authorized cursory searches for additional suspects incident to arrest or at any other time the police have reasonable grounds for fearing for their security in the discharge of their duties. (Guidi v. Superior Court, supra, 10 Cal.3d at p. 9.) Here, Deputy Knittel had been told drugs were sold from the apartment and when he got there, he could smell marijuana being burned inside. He also knew that at least one other person was in the apartment and he did not know what that person was doing. Because Deputy Knittel frequently encountered firearms on the premises where drugs were located, the possibility of violence in this situation was readily apparent. (Ibid.) Based on these facts, we conclude it was reasonable for Deputy Knittel to walk through the hallway and the rest of the apartment to conduct a protective sweep to ensure officer safety.^[3]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] The parties stipulated the suppressed items were found in the apartment. They were described at the preliminary hearing.

^[2] Because we affirm the trial courts determination that consent was implied from Scotts actions, we need not address the parties arguments regarding exigent circumstances.

^[3] Because we find entry to the apartment was lawful and Scott admits she voluntarily signed the consent to search form, we need not address the legality of the subsequent search for and seizure of the remaining marijuana and paraphernalia.