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<b>P. v. Desmarais</b></p>
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Filed 2/11/10 P. v. Desmarais CA6</p>
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<b>NOT TO BE PUBLISHED IN OFFICIAL REPORTS</b></p>
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115<strong>.</strong></p>
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA</p>
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SIXTH APPELLATE DISTRICT</p>
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THE PEOPLE,</p>
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Plaintiff and Respondent,</p>
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v.</p>
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SCOTT ALAN DESMARAIS et al.,</p>
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Defendants and Appellants.</p>
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H034035</p>
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(Santa Clara County</p>
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Super. Ct. No. CC780281)</p>
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Defendants Scott Alan Desmarais and Wendi Geisler appeal the trial courts denial of their <a href="http://www.fearnotlaw.com/">motion to suppress evidence</a> pursuant to Penal Code section 1538.5.</p>
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<b>Statement of the Facts and Case</b></p>
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In September 2007, Deputy Scarlette Blomquist<a href="#_ftn1" name="_ftnref1" title=""><b><strong>[1]</strong></b></a> and Sergeant Helms of the Santa Clara County Sheriffs Department were driving northbound on Felter Road north of Sierra Road in San Jose. A small, red, foreign car driving southbound on Felter crossed the double yellow line in front of the sheriffs car, which was forced off the road to avoid a collision. Sergeant Helms told Deputy Blomquist, who was driving the sheriffs car to turn around and stop the red car for reckless driving. By the time Deputy Blomquist had turned the sheriffs car around, the red car was out of sight.</p>
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At the time, Deputy Blomquist and Sergeant Helms believed the red car turned off on Sierra Road. The area is very rural, and there are parcels connected to public roads by long private driveways shared by several residences. They began to check driveways along the road that were likely exit points from the road. When walking down one of the driveways that accessed numerous parcels, the officers encountered a resident who lived along the right side who flagged them down and said there was suspicious activity in the area. Sergeant Helms described the red car he had seen earlier in the day to the resident, who told Helms he had seen a car matching that description often on 5252 Sierra Road. 5252 Sierra Road is the parcel at the dead-end of the right-hand branch of the driveway, about one-half to three-quarters of a mile from the main road.</p>
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When the officers arrived at 5252 Sierra Road, they found no barriers. They entered the property through an open gate, and walked down the driveway. At the time, they saw no signs or other indications of no trespassing. Later, when Deputy Helms returned to the property to take photographs, he saw posted no trespassing signs.</p>
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In front of the one-story main house, the officers saw a parked red car and a motor home. The officers knocked on the door of the motor home and received no response. They then knocked on the front door of the main house, and also received no response.</p>
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The officers could hear radio or television noise coming from the back area of the property, so they decided to go to the back door of the main house and to the other units. The officers walked along a clearly distinguished driveway that was unobstructed and not gated to the rear of the property. The driveway was eight feet wide and 20 feet long, and was immediately adjacent to the side of the main house, and ended in wide open area that contained a camper and a pump house.</p>
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In walking down the driveway, Sergeant Helms saw another possible residence that was 10 to 15 feet from the main house. The two were connected by a walkway and a covered parking area.</p>
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Sergeant Helms knocked on the back door of the main house, and the front door of the second structure and no one answered. Sergeant Helms walked 70 to 100 feet to the end of the second structure, where two trucks were parked. From that vantage point, Sergeant Helms could see 15 to 20 potted marijuana plants in the plain view in the rear of the property about 30 yards away from where he was standing.</p>
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At the suppression motion, Sergeant Helms testified the driveway and path on which he walked was readily accessible to the public, and that a UPS or other delivery company delivering a package to the second structure would have to take the same path.</p>
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A search warrant for the property was issued based on Sergeant Helmss observation of the marijuana.</p>
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Defendants filed a motion to suppress evidence based on the argument that the officers were within the cartilage of the home when they observed the marijuana, and therefore, the <a href="http://www.mcmillanlaw.com/">search warrant</a> based on those observations was invalid. The trial court denied the motion, making the following finding: the area where Sergeant Helms stood when he viewed the marijuana was impliedly open to the public because the gate at 5252 Sierra Road was open; no one answered the door at the main residence; there were two cars parked beyondbehind the main residence; and, most importantly, the gravel driveway or pathway extended beyond the main house to other structures indicating an open invitation to the public. [] Because the area was open to the public, the officer was justified in being there and viewing the marijuana from that vantage point.</p>
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After denial of their motion, both defendants filed a petition for <a href="http://www.fearnotlaw.com/">writ of mandate</a> and stay with this court on September 5, 2008. The petition and request for stay was summarily denied on September 11, 2008.</p>
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Defendants both entered no contest pleas following the denial of their motion to suppress. Defendant Scott Desmarias pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, 11378), possession for sale of marijuana (Health & Saf. Code, 11359), possession of psilocin (Health & Saf. Code, 11377, subd. (a)), possession of LSD (Health & Saf. Code, 11377, subd. (a)). Defendant Desmarias also admitted a firearm enhancement (Pen. Code, 12022, subd. (c)).</p>
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Defendant Geisler pleaded no contest to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and possession for sale of marijuana (Health & Saf. Code, 11359).</p>
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Defendants filed a timely <a href="http://www.mcmillanlaw.com/">notice of appeal.</a></p>
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<b>Discussion</b></p>
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Defendants Desmarais and Geisler appeal the trial courts denial of their motion to suppress evidence pursuant to Penal Code section 1538.5.</p>
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On appeal from the denial of a motion to suppress evidence, our standard of review is settled. In ruling on a motion to suppress, the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence . . . on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior courts express or implied findings if they are supported by substantial evidence. [Citation.] (<em>People v. Laiwa</em> (1983) 34 Cal.3d 711, 718; <em>People v. Glaser</em> (1995) 11 Cal.4th 354, 362.) However, [i]n determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (<em>People v. Glaser, supra,</em> 11 Cal.4th at p. 362.)</p>
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In this case, defendants assert the search warrant affidavit was based on the police officers observations while unlawfully inside the curtilage of their home.</p>
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The Fourth Amendment guarantee against unreasonable searches of houses also protects the curtilage of a house. (<i>United States</i> v. <em>Dunn</em> (1987) 480 U.S. 294, 300.)  [C]urtilage is used to describe the land immediately surrounding and associated with the home, which a person may reasonably expect will remain private. (<em>Oliver</em> v. <em>United States</em> (1984) 466 U.S. 170, 180.) This is to be distinguished from the open fields on a persons property, which are (i<em>d</em>. at p. 176) outdoor places beyond this adjacent and intimate zone. (<em>People</em> v. <em>Mayoff</em> (1986) 42 Cal.3d 1302, 1314-1315.) An open field need be neither open nor a field as those terms are used in common speech. (<em>Oliver</em> v. <em>United States</em>, <em>supra</em>, 466 U.S. at p. 180, fn. 11.) Thus in the <em>Dunn</em> case, the Supreme Court ruled that a barn located on Dunns property was not accorded Fourth Amendment protection because it lay outside the curtilage. [N]o expectation of privacy legitimately attaches to open fields. (<em>Id</em>. at p. 180) Thus no privacy interests are violated when contraband is discovered outside the curtilage.</p>
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The question in this case is whether the pathway from which Sergeant Helms observed the marijuana plants was within the homes curtilage. We consider the same factors as did the lower court to make the determination. (<em>United States</em> v. <em>Dunn</em>, <em>supra</em>, 480 U.S. 294.)</p>
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Here, the officers walked along a path that was 20 yards from the main house, ending 70 to 100 feet from a secondary structure. It was at this location that Helms observed the marijuana growing as he stood by two parked trucks. The pathway was accessible through an open gate. There were no signs restricting access at the time, and no barriers to the path.</p>
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In determining whether an area is within the proximity to the home to be considered curtilage, the question is whether, combining all of the factors, the area in question is so intimately tied to the home itself that it should be placed under the homes umbrella of Fourth Amendment protection. (<em>United States</em> v. <em>Dunn</em>, <em>supra</em>, 480 U.S. at p. 301.)</p>
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Based on the testimony of Sergeant Helms, the area in which the officers observed the marijuana was not in close proximity to the house. Considering the lay of the land and the proximity of the path, we do not believe these facts compelled the conclusion that the area was intimately tied to the home. (<em>United States v. Dunn</em>, <em>supra</em>, 480 U.S. at p. 301.)</p>
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In addition, the pathway from which the officers observed the marijuana was not enclosed linking it to the immediate area of the home. There were no fences or barriers surrounding it. Although, there is no bright-line rule that a curtilage must be fenced, the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home. (<i>United States</i> v. <em>Dunn</em>, <em>supra</em>, 480 U.S. at p. 301, fn. 4.)</p>
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Here, the area in question was not only not fenced, but it was separated from the home, and was not such that it was associated with the domestic life and privacies of the home. (<em>United States v. Dunn</em>, <em>supra</em>, 480 U.S. at p. 301, fn. 4.)</p>
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Finally,there was no attempt to protect the privacy of the pathway or the rear area of the property. There were no No Trespassing signs on the property at the time of the observation, and no gates, fences or other natural obstacles along the pathway. It may be that because of their location, few members of the public would stumble upon the marijuana plants in this case. But this does not demonstrate that the expectation of privacy was <em>legitimate </em>in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly private activity. Rather, the correct inquiry is whether the governments intrusion infringes upon the personal and societal values protected by the <a href="http://www.fearnotlaw.com/">Fourth Amendment</a>. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement. (<em>Oliver</em> v. <i>United States</i>, <em>supra</em>, 466 U.S. at pp. 182-183, fn. omitted.)</p>
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The case of <em>People</em> v. <em>Winters</em> (1983) 149 Cal.App.3d 705 is illustrative by contrast. In that case, police went to defendants house on legitimate business regarding defendants son. Once at the house, however, they peered inside, saw no one was home, and then entered the backyard, which was entirely fenced, through a closed gate, which was conspicuously posted with a no trespassing sign, and they eventually found some marijuana plants growing. (<em>Id</em>. at p. 707.) The court reversed the judgment, finding that the circumstances showed that defendant had a reasonable expectation of privacy in his backyard.</p>
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None of the deciding factors in <em>Winters</em> are present here. Moreover, the officers did not search a fenced, enclosed backyard as they did in <em>Winters</em>. Rather, here, they followed an open, unenclosed pathway along the side of the house to rear of the property and rear structure. From this vantage point they could see the marijuana plants growing in plain sight.</p>
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Based on the record before us, and the factors discussed in <em>United States</em> v. <em>Dunn</em>, <em>supra</em>, 480 U.S. 294, we conclude the pathway from which the officer observed the marijuana plants was not within the curtilage of the home. Therefore, there was no violation of defendants Fourth Amendment rights.</p>
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<strong>Disposition</strong></p>
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The judgment is affirmed.</p>
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RUSHING, P.J.</p>
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WE CONCUR:</p>
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PREMO, J.</p>
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ELIA, J.</p>
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Publication courtesy of <a href="http://www.fearnotlaw.com/">California free legal advice</a>.</p>
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Analysis and review provided by <a href="http://www.mcmillanlaw.us/">Carlsbad Property line Lawyers.</a></p>
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<a href="#_ftnref1" name="_ftn1" title=""></a><b><strong>[1]</strong></b> Subsequent to this incident, Deputy Blomquist suffered a fatal illness; therefore, Sergeant Helms was the only witness to testify at the motion to suppress evidence.</p>