P. v. Ayala

Filed 1/30/09 P. v. Ayala CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A119925

v. (SolanoCountySuper.

Ct. No. FCR240409)

GENE LEANNE AYALA,

Defendant and Appellant.

______________________________________/

After the trial court denied her motion to suppress, appellant Gena Leanne Ayala pleaded no contest to possession of methamphetamine (Health & Saf. Code, 11378, subd. (a)).^[1] On appeal, appellant contends the trial court erred in denying her motion to suppress. We disagree, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from the evidence presented at the hearing on appellants motion to suppress.

On February 8, 2007, Vacaville Police Officer Stuart Tan went to a laundromat in Vacaville to speak with Timothy Swanson, a probationer. While he was there, Tan saw appellant cleaning the laundromat. Tan spoke with Swanson and left the laundromat.

At approximately 11:00 p.m. the following evening, Tan returned to the laundromat. He planned to give Swanson a message from his probation officer. He did not have a warrant to search the laundromat. The door to the laundromat was locked and the laundromat seemed to be closed. Tan saw Swanson inside, so he tapped on the window to get Swansons attention. Swanson came outside and the two men began talking. Swanson seemed to be under the influence of a drug or controlled substance.

During their conversation, Swanson asked, on a couple of occasions for his sweatshirt, because he was getting cold. Swanson told Tan generally [that the sweatshirt] was inside the business and asked Tan to go get it[.] While Swanson remained outside, Tan went inside the laundromat and saw appellant.^[2] Appellant told Tan that she was working at the laundromat, cleaning it.

Swansons sweatshirt was on top of a folding table located about three quarters of the way into the laundromat, to the rear of the laundromat. Tan saw a back room along the back wall of the laundromat, sort of near the folding table. The door to the back room was open. Tan picked up the sweatshirt and then took probably one or two steps toward the back room. Before moving toward the back room, Tan had not seen appellant do anything that . . . was of a criminal nature and he did not get appellants permission to walk towards the back room.

After taking one or two steps toward the back room, Tan kind of glanced into the back room [ ] before walking back towards the front of the laundromat. As he

glanced into the room, appellant pushed past [him], towards [the] back room. Appellant kind of quickly darted past [Tans] left side, pushing [his] left arm forward as she went past. In response, Tan secured her, not knowing what she was reaching for in such a hurry. Tan asked appellant what she was doing and appellant responded that she was sorry and that she realized it was stupid to do something like that. After he had secured appellant, he looked back over to where [appellants] hand was reaching and saw a couple of plastic bags sitting on top of a purse that was on top of . . . a desk in the back room. Inside the bags, Tan could clearly see suspected methamphetamine.

Tan arrested appellant and Swanson for constructive possession of the methamphetamine. Some time later, Tan found a cosmetic bag sitting on the floor of the back room, which appellant denied owning. Tan searched the bag and found scales, syringes, a pipe, and additional methamphetamine. Tan also searched the purse and found money that he believed was consistent with the sale of methamphetamine.

On May 22, 2007, the People filed an information charging appellant with possession of methamphetamine for sale ( 11378), possession of hydrocodone bitartrate ( 11350, subd. (a)), possession of a smoking device ( 11364), and unauthorized possession of a hypodermic needle (Bus. & Prof. Code, 4140). Appellant moved to suppress. At the hearing, the prosecutor argued that the methamphetamine bags were in plain view, especially after [appellant] sort of darted past Officer Tan, causing him to detain her for obvious purposes and officer safety reasons. [] As [for] the pink bag and for the purse, I believe those are . . . searches incident to arrest. In addition, I believe the pink bag, when she disclaims ownership of it [ ] I dont think any rights are violated . . . by the search of that pink bag.

Following a hearing, the trial court denied the motion, concluding, The motion to suppress is denied. [] It appears to the Court that [under] the totality of the circumstances . . . the officers behavior was appropriate. Appellant then pleaded no contest to possession of methamphetamine ( 11378, subd. (a)). The court suspended imposition of judgment and sentence and placed appellant on three years probation.

DISCUSSION

Appellant contends the denial of her motion to suppress was erroneous because the prosecution failed to establish an exception to the warrant requirement. The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Jenkins (2000) 22 Cal.4th 900, 969.)

The People do not argue that appellant lacked a reasonable expectation of privacy in the laundromat, but they contend the trial court properly denied the motion to suppress because Tan had Swansons consent to enter the laundromat, and neither Swanson nor appellant placed any specific limitation on Tans presence inside the business. They also contend that Tan lawfully detained appellant after reasonably becoming concerned for his personal safety and saw the methamphetamine in plain view. Finally, the People argue that Tan had probable cause to arrest appellant for committing a battery on a peace officer and could search the back room incident to a lawful arrest.

Tans Movement toward the Back Room Did Not Exceed the

Scope of Swansons Consent

The parties agree that Tan did not have a warrant to search the laundromat. They also agree that Swanson consented to Tans entry into the laundromat and that Swanson told Tan to retrieve the sweatshirt. Appellants quarrel is with Tans actions after he retrieved the sweatshirt: appellant contends Tan did not have permission to walk toward the back room after he retrieved the sweatshirt and that everything that occurred after Tan moved one or two steps toward the back room flowed from exploitation of that illegal intrusion and should have been excluded by the trial court.

In addition to proving that consent to enter was freely and voluntarily given (Florida v. Royer (1983) 460 U.S. 491, 497), the prosecution bears the burden to prove that a warrantless search was within the scope of the consent given. (People v. Cantor (2007) 149 Cal.App.4th 961, 965, citing People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) The standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonablenesswhat would the typical reasonable person have understood by the exchange between the officer and the subject? [Citations.] (Crenshaw, supra, at p. 1408, quoting Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno).) Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] . . .Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances. [Citation.] Unless clearly erroneous, we uphold the trial courts determination. (Crenshaw, supra, 9 Cal.App.4th at p. 1408.)

Appellant contends that Tans movement while inside the laundromat exceeded the scope of consent. She claims that Tan had consent to enter the laundromat for the sole purpose of retrieving the sweatshirt and that he was required to leave the laundromat immediately after picking up the sweatshirt. According to appellant, a reasonable person would have concluded that after obtaining the sweatshirt the officer would leave the Laundromat[.] We disagree with appellants characterization of Tans actions, and the conclusion she draws.

While Tan spoke to Swanson outside the laundromat, Swanson asked on a couple of occasions for his sweatshirt. Swanson told Tan that the sweatshirt was inside the business and asked Tan to go get it[.] Swanson did not specify where inside the laundromat the sweatshirt was or direct Tan to a specific part of the premises. Nor did Swanson indicate, by words or conduct, that the consent given to Tan to enter the laundromat was limited to the area immediately surrounding the sweatshirt. This evidence supports the trial courts implied finding that Tan had permission to enter the laundromat and that taking one or two steps toward the back room after retrieving the sweatshirt did not exceed the scope of Swansons consent. Appellant has not cited, and our research has not disclosed, authority prohibiting a police officer from taking one or two steps further into premises after being invited inside. Although Tan did not obtain Swansons (or appellants) express consent to take one or two steps toward the back room, it is entirely reasonable to expect the officer to take steps in any direction, including in the direction of the back room, in the course of leaving the premises. We do not believe that the consent to enter given by Swanson was as limited as appellant contends. (Jimeno, supra, 500 U.S. at p. 291.)

Tan Had Reasonable Suspicion to Detain Appellant

Appellant contends that Tan seized her without reasonable suspicion that she was engaged in any criminal activity. A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) [C]ourts . . . consider the totality of the circumstancesthe whole picture to determine whether a particular intrusion by police was justified. Any temporary detention includes factors that, considered together, may suggest either criminal or innocent behavior to trained police officers. No single factfor instance, flight from approaching policecan be indicative in all detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an areas reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity. (Id. at p. 239, original italics.) Nevertheless, flight from police is a proper considerationand indeed can be a key factorin determining whether in a particular case the police have sufficient cause to detain. (Id. at p. 235.)

Under the totality of the circumstances here, Tan had reasonable suspicion to detain appellant. When Tan encountered Swanson who appeared to be under the influence of a controlled substance Swanson was inside the laundromat with appellant. It was possible for Tan to infer that Swanson and appellant were acting together, and that controlled substances, additional people, or even weapons were present in the laundromat. Moreover, Tan testified that as [he] kind of glanced into the back room, before walking back towards the front, [appellant] pushed past [him], towards that back room. She pushed his left arm forward as she went past. Appellants attempt to dart past Tan, combined with the time, location and Swansons suspicious actions, gave Tan reasonable suspicion to detain appellant.

Tan Saw the Methamphetamine in Plain View

Appellant contends that the plain view exception to the warrant requirement does not apply here because Officer Tan did not have a right to be where he was when he looked in the back office. . . . Because we have concluded that Tan did not exceed the scope of consent when he took one or two steps toward the back room, appellants argument fails. Tan observed the methamphetamine from a lawful vantage point. It is well settled that [p]olice officers do not have to blind themselves as to what is in plain sight simply because it is disconnected with the purpose for which they entered the premises. [Citation.] Objects falling in plain view of a law enforcement officer who has a lawful right to be in a position to have that view are subject to seizure. . . . (People v. Szabo (1980) 107 Cal.App.3d 419, 431.) Here, Tan looked into the back room and saw a couple of plastic bags sitting on top of a purse that was on top of . . . a desk in the back room. Inside the bags, Tan could clearly see suspected methamphetamine.

Having reached this result, we need not consider the Peoples alternative arguments that Tan looked in the back room for officer safety reasons and that Tan had probable cause to arrest appellant for committing a battery on a peace officer and searched the back room incident to a lawful arrest.

DISPOSITION

The judgment of conviction is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Stevens, J.*

*Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1] Unless otherwise noted, all further references are to the Health and Safety Code.

^[2] The following colloquy occurred on cross-examination:

[Defense counsel]: Okay. And isnt it a fact that you went in the business solely to retrieve a sweatshirt from Mr. Swanson, correct?

[Tan]: That was the primary reason or one of the reasons.

[Defense counsel]: Well, you had no other business in that going into the laundromat, correct?

[Tan]: I had other things I wanted to get accomplished.

[Defense counsel]: Sure. You wanted to conduct an illegal search of the business, correct?

The court sustained the prosecutions objection to defense counsels last question, and defense counsel pursued a different line of questioning.