P. v. Argo

Filed 8-18-09 P. v. Argo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

David Clyde Argo appeals his conviction, by jury, of possessing a short-barreled shotgun, a felony (Pen. Code,  12020, subd. (a))[1], and two misdemeanor counts of brandishing a firearm. ( 417, subd. (a)(2).) The shotgun was discovered in appellant's bedroom, after appellant consented to a search. He contends the trial court erred when it denied his motion to suppress on the ground that the search exceeded the scope of his consent. Appellant further contends that the trial court should have excluded the statements he made to police officers because the statements were obtained in violation of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) We affirm.

Facts

Two employees of a towing company arrived at appellant's Simi Valley home at about 6:00 a.m. on April 25, 2006, to repossess appellant's car. After first exchanging angry words with the men, appellant came outside with a handgun. He cocked the hammer, pointed it at them and threatened to shoot if they did not leave his car alone. Their boss, who heard the exchange over a cell phone, called police. Meanwhile, the men kept talking to appellant while they secured the car for repossession. Within a few minutes, sirens could be heard.

Appellant went inside and called 911. He told the dispatcher that he had a gun and was going to shoot the men who were repossessing his car. Appellant ended the call and went outside without the gun. He was at his car door, struggling with one of the men, when Simi Valley police officers arrived.

The victims said that they saw appellant with a black or blue metal handgun. Appellant maintained that it was an "airsoft" pistol, one that fires plastic pellets or BBs, rather than bullets. He told Simi Valley Police Officer Chris Hahesy that the gun was in a hallway closet. When Officer Hahesy asked if he "could go in the house to retrieve the gun[,]" appellant said, "go ahead." He never told Hahsey to stay out of the house or to stay out of specific rooms or closets. He did not limit the search to a specific closet or part of the house.

Hahesy searched a closet in the entryway while Sgt. Lappin searched a hallway closet on the second floor. Neither officer could find the pellet gun. When told that the officers could not find the gun, appellant said it might be somewhere else in the house. Hahesy went back inside without asking appellant's permission to continue searching or saying that he was going to search other parts of the house.

Meanwhile, Sgt. Lappin searched the master bedroom. He noticed a small television that was displaying a live picture of the driveway. He also noticed that the doors to a walk-in closet were open. When he walked inside the closet and turned to his left, Sgt. Lappin saw a sawed-off shotgun. The gun was loaded. Lappin took it outside. The victims said it was not the gun they had seen.

As Lappin and Hahesy continued the search, another officer relayed a message that appellant said the gun was under the mattress in the master bedroom. Lappin lifted a corner of the mattress and found "a pistol that resembled a 1911, semiautomatic .45. The hammer was cocked and there was a magazine located next to it. It was a .22 caliber." When Lappin got the handgun outside, he said to appellant, "That's not an airsoft pistol." Appellant replied, "I know." Lappin told appellant he had also recovered a sawed-off shot gun. Appellant said nothing to indicate the guns were not his.

Appellant testified that he told Officer Hahesy the airsoft pistol was in the entryway closet. When Hahesy came back outside to say he could not find the gun, appellant said "that I didn't want him in my house anymore . . . ." After Hahesy told appellant they would just get a search warrant, appellant told him there was another gun "near the mattress." He testified that he had never seen the sawed off shotgun before Sgt. Lappin brought it downstairs. He believed it might have belonged to one of his two step-sons, or to his own 12-year old son, all of whom had access to the house. When he returned home after his arrest, appellant found the airsoft pistol on a shelf in the back of the entryway closet, behind some boxes.

A photograph of the airsoft pistol appellant claimed to have used was admitted in evidence at trial. It shows an imitation handgun made primarily of clear plastic.

Discussion

Appellant contends the trial court erred when it denied his motion to suppress the shotgun because Sgt. Lappin's search of the master bedroom closet exceeded the scope of appellant's consent. Appellant further contends the trial court should have suppressed two of his statements because they were made before he was given Miranda warnings. (Miranda v. Arizona, supra, 384 U.S. 436.)

In reviewing the trial court's order on the motion to suppress, we accept factual findings that are supported by substantial evidence and exercise our independent judgment on the question of whether, " 'on the facts so found, the search or seizure was reasonable under the Fourth Amendment . . . .' " (People v. Maury (2003) 30 Cal.4th 342, 384, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) We conclude that it was.

Scope of Consent to Search

Appellant contends his consent was limited to a search of the entryway closet for the airsoft pistol. Thus, evidence of the sawed off shotgun should have been suppressed because it was found during a search that exceeded the scope of his consent. We are not convinced.

"The touchstone of the Fourth Amendment is reasonableness." (Florida v. Jimeno (1991) 500 U.S. 248, 250.) Where, as here, a warrantless search is based on consent, its scope must be objectively reasonable. "The standard for measuring

the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness . . . ." (Id. at p. 251.) We ask whether a "typical reasonable person" would have understood the consent to include the area or container that was searched. (Id. at p. 251; People v. Jenkins (2000) 22 Cal.4th 900, 974.) "The scope of a search is generally defined by its expressed object." (Florida v. Jimeno, supra, 500 U.S. at p. 251.) Thus, unless it is expressly limited, a suspect's consent to a search for an object includes consent to search wherever the object might reasonably be found. (Id., at pp. 251-252.) For example, in Florida v. Jimeno, the suspect's consent to search a car for narcotics included consent to search a paper bag found lying on the floor of the car. (Id.) Similarly, a homeowner who consented to the search of her house for evidence of a murder, also consented to the search of an unlocked briefcase that she handed to a police officer because that conduct would "be understood by a reasonable person to include consent to search the briefcase." (People v. Jenkins, supra, 22 Cal.4th at p. 976.)

Here, the question is whether appellant's consent extended to a search of the master bedroom and closet. We conclude that it did. Officer Hahesy testified that after appellant told him the gun was "in the closet," he asked "if I could go in the house to retrieve the gun." Appellant responded, "go ahead." Appellant did not specify which closet or limit his consent to a particular closet or part of the house. Thus, it was reasonable for Officer Hahsey and Sgt. Lappin to conclude that appellant's consent extended to other closets in which the airsoft might have been located.

Appellant next contends that his consent to the second search, in which Sgt. Lappin found the handgun under the mattress, was not voluntary because it occurred only after Sgt. Lappin "unlawfully" discovered the shotgun. Because we conclude the first search did not exceed the scope of appellant's consent, we need not address this contention.

Appellant's Statements

Appellant next contends the trial court erred when it denied his motion to suppress two statements made without benefit of Miranda warnings. First, appellant told the officers that, "the gun they were looking for was under his mattress in his bedroom . . . ." Second, when Sgt. Lappin commented that the handgun found under appellant's mattress was "not an airsoft pistol[,]" appellant replied, "I know." Respondent contends that appellant has waived this contention with respect to the second statement and that neither statement was the product of an interrogation.

We conclude that any error in admitting the first statement was harmless beyond a reasonable doubt. The contention has been waived with respect to the second statement because appellant did not object on this ground in the trial court. (People v. Gurule (2002) 28 Cal.4th 557, 602.) Had it not been waived, we would reject the contention because the statement was not the product of an interrogation and its admission was harmless beyond a reasonable doubt.

As our Supreme Court has frequently reiterated: "Before being subjected to 'custodial interrogation,' a suspect 'must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' (Miranda v. Arizona, supra, 384 U.S. 436, 444 [16 L.Ed.2d 694, 706-707].) Statements elicited in violation of this rule are generally inadmissible in a criminal trial. (Id. at pp. 492, 494 [16 L.Ed.2d at pp. 733-734, 734-735]; but see also Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643] [permitting otherwise inadmissible statements to be used for impeachment of testifying defendant].)" (People v. Mayfield (1997) 14 Cal.4th 668, 732.) The term "interrogation," in this context, " 'refers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.' " (People v. Huggins (2006) 38 Cal.4th 175, 198, quoting Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297], fns. omitted.) Not all conversation between a police officer and a suspect qualifies as interrogation. " ' "The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response." ' " (People v. Huggins, supra, 38 Cal.4th at p. 198, quoting People v. Haley (2004) 34 Cal.4th 283, 310.)

Appellant was obviously in custody when he made the statements at issue: he was handcuffed, sitting on the curb in front of his house and being guarded by a police officer. (Miranda v. Arizona, supra, 384 U.S. at p. 444 [person in custody when law enforcement deprives the person of "his [or her] freedom of action in any significant way."].) The question is whether appellant's statements were the product of "interrogation."

Respondent contends that appellant's statement regarding the location of the handgun was not the product of interrogation because the officer's question referred to the airsoft pistol and was not reasonably likely to lead to an incriminating statement. We disagree. The officers were investigating an incident in which appellant pointed a gun at two men. If the gun appellant pointed at the victims was a actual firearm, he violated section 417, subdivision (a)(2). If he used an imitation firearm, then appellant arguably violated section 417.4.[2] Under either scenario, a question designed to locate a firearm was reasonably likely to elicit an incriminating statement. Appellant's second statement, by contrast, was not a response to "interrogation," because Sgt. Lappin's remark invited no response at all. To the extent that any response was appropriate, it could reasonably be expected to have been exculpatory, rather than incriminating -- e.g., a statement that Sgt. Lappin had the wrong gun. (See .g., People v. Huggins, supra, 38 Cal.4th at p. 198 [no Miranda violation where officer's statement that defendant was a murder suspect called for a denial, not a confession].)

Although we conclude that appellant's first statement was obtained in violation of Miranda, we nevertheless conclude that any error in admitting it was harmless beyond a reasonable doubt because the evidence of guilt was overwhelming. (People v. Sims (1993) 5 Cal.4th 405, 447-448.) Both of the victims testified that appellant threatened them with a dark metal handgun that had a clip; they denied seeing a pellet gun or a gun that was even partially made of clear plastic. The airsoft pistol appellant claimed to have used was predominantly made of clear plastic. Officer Hahesy and Sgt. Lappin testified that they were unable to find the airsoft in either the entryway or the master bedroom closet. Appellant testified that when he searched, he had to pull boxes out of the way before he found the airsoft on a top shelf, in the back of the entryway closet. The handgun, by contrast, was found in an accessible location, under the corner of the mattress in the master bedroom. It was lying next to a loaded magazine, its hammer was cocked and it matched the description given by the victims. The evidence was thus overwhelming that appellant used the handgun found under his mattress to threaten the victims, not the "airsoft" pellet gun that was hidden away in the back of a closet. Any error in admitting appellant's brief statement concerning the location or attributes of the gun was harmless beyond a reasonable doubt.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

John E. Dobroth, Judge

Superior Court County of Ventura

______________________________

Lyn A. Woodward, 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, Roberta L. Davis, David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Section 417, subdivision (a)(2) provides: "Every person who, except in self-defense, in the presence of any other person draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner . . . [,]" has committed a misdemeanor. Section 417.4 provides; "Every person who, except in self-defense, draws or exhibits any imitation firearms, as defined in Section 12550, in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor . . . ."