P. v. DeFeo






Filed 11/7/11 P. v. DeFeo CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DEFEO, Defendant and Appellant.

B227015 (Los Angeles County Super. Ct. No. BA361893)

APPEAL from a judgment of the Superior Court of Los Angeles County. Patricia M. Schnegg, Judge. Affirmed.

The Law Offices of Ronald Richards & Associates and Ronald Richards, Nicholas Bravo and Patrick T. Santos, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
______________
After his motion to suppress evidence under Penal Code section 1538.5[1] was twice denied, appellant Christopher DeFeo pleaded no contest to one count of possession of marijuana for sale.[2] (Health & Saf. Code, § 11359.) The trial court granted appellant formal probation for a period of three years under terms and conditions, including a condition that he serve 270 days in jail.
Appellant appeals the denial of his motion to suppress evidence.
FACTS
Prosecution Evidence[3]
On August 17, 2009, at around 5:00 a.m., Officer Jeffery Day of the Los Angeles Police Department and his partner responded to a radio call directing them to 1304 South Cloverdale Avenue in Los Angeles County. There was a report of a “man assaulting a woman.” As the patrol car approached the residence, Officer Day saw appellant sitting on the porch, smoking a cigarette. Appellant looked at the officers with a startled expression, threw away his cigarette, and ran inside the residence. Officer Day and his partner went to the front door, listened, and knocked on the door. Officer Day heard movement inside. It sounded like people were running back and forth and items were being moved around. Officer Day continued to knock on the door, and said, “you need to open the door, police department.”
A man, later identified as Clint Eskenazi, opened the door.[4] Eskenazi looked both angry and nervous. Officer Day asked him to step outside, and he then saw appellant walking out from the rear of the house into the living room. Officer Day asked appellant to step outside also, and he complied. Officer Day and his partner handcuffed Eskenazi and appellant. Officer Day explained that he handcuffed them because of the potential violence in a domestic violence call, which is “one of the most violent calls [police] go to,” and Eskenazi was a very large individual.
Officer Day then peered inside the house and saw a woman sitting on a couch holding a large dog. She appeared very nervous and kept saying that the officer could not come into the residence. The woman told Officer Day she had an argument with her boyfriend and she was fine.
Officer Day requested an additional unit. When the unit arrived, Officer Day and another officer “cleared the location for possible victims” by walking through the living spaces of the house. Officer Day explained that he walked through the residence because there may have been additional suspects or victims or armed persons inside. He also thought that, since he had seen only one female and two males, there may have been someone who needed help, such as an injured victim, in another room. Officer Day said he had no specific facts that there was another female inside but said that “people lie to us all the time.”
As he was walking through the residence, Officer Day noticed a large vacuum sealer in the living room, as well as two vacuum-sealed packages of marijuana at the rear wall of the room. As he walked into the first bedroom, Officer Day saw several open cardboard boxes on the floor, and the boxes contained large, vacuum-sealed plastic bags containing a leafy green substance resembling marijuana. Officer Day called his supervisor to request a search warrant.
A narcotics detective obtained a search warrant and served it at the South Cloverdale residence. Among the substances found were 58.05 grams of MDMA, 17.47 grams of oxandrolone, and approximately 101 grams of marijuana. Appellant’s counsel and the prosecution stipulated for purposes of the hearing that the marijuana was possessed for the purpose of sale.
Defense Evidence
In response to the prosecutor’s argument that appellant had no standing to challenge the search, the trial court permitted the defense to reopen. Appellant testified that he had resided at the South Cloverdale residence for five to seven days prior to the date of his arrest in this case. He slept on an airbed and had his personal effects in the residence. At that time, appellant’s legal address was in Westbury, New York. At one point he had stayed in a hotel, but “that was over” at the time of his arrest. He then testified that he had rented the hotel room but had not actually stayed there at all. The arrest occurred at approximately 5:00 a.m., and appellant could not recall whether he had been awake all night. He said he had gone out for something to eat and had returned three or four hours before the police arrived.
Appellant testified he went inside when the police arrived only because he had finished his cigarette. He was not running away from the police but was going inside anyway. Appellant intended to package the marijuana at the residence. Eskenazi testified that he lived and paid rent at the residence, and the woman the police saw there was his girlfriend.
DISCUSSION
I. Proceedings Below
The prosecutor conceded that Eskenazi had an expectation of privacy in the residence, but argued that appellant did not. The prosecutor pointed out that appellant continued to maintain a legal residence in New York and had conceded he had a motel room in his name, although he denied using it. The prosecutor also argued that appellant was using the residence for a commercial purpose and therefore did not have the same
expectation of privacy as a resident. The magistrate found that appellant had standing,
i.e., a reasonable expectation of privacy,[5] and could challenge the validity of the search.
The prosecutor argued that the entry into the home was justified on the ground of exigent circumstances and also on the community caretaking exception to the warrant requirement. Appellant’s counsel argued that there was no evidence of a crime being committed when the officers arrived, and one anonymous tip was insufficient to believe a crime had been committed. An officer cannot search a residence just to see if there is anyone else in the house when there was no history of domestic violence at the address and no evidence of someone being attacked, i.e., no specific facts. The officer had only his subjective belief that people lie to him. The officer should have further investigated by interviewing the neighbor or obtaining consent or a warrant.
The magistrate made the following ruling: “[I]n this particular case, the officer’s testimony was that he was there for a [section] 415 investigation.[6] There really isn’t any other reason for him to go inside. It’s, in and of itself, an inherently dangerous situation to go inside of a residence on a 415 call. He expresses that and also corroborates that feeling by calling for backup. He sees what he thinks is suspicious activity, and then he enters the residence for the purpose of, at the very least, to check for personal safety. [¶] The court has listened carefully to the officer’s testimony to see whether or not it’s consistent with the caretaking responsibility of a police officer, and everything seems to be consistent with what the police officer stated. [¶] The court needs to take a look at the totality of the circumstances in evaluating the police officer’s actions in this case and the conduct by the—[appellant] out on the porch, the radio call, what the officer observed when he—when the door was opened, the fact that there was nobody that seemed to have been injured or was complaining was what would prompt the officer to go inside the residence in order to make a welfare check. [¶] You know, as the court stated on page 479 in People vs. Ray [(1999) 21 Cal.4th 464 (Ray)] (reading): When doors are open, we will hope that officers will take steps to find out what is going on. That’s what law-abiding tax-paying citizens desire and expect of their local constabulary. [¶] This is exactly what the officers are doing in this particular case, and as a result, the motion to suppress is respectfully denied.”
Appellant renewed his motion to suppress in the trial court. A hearing was held in which no additional evidence was presented. Judge Patricia M. Schnegg stated she had read all of the moving papers and the transcript of the preliminary hearing. She denied appellant’s motion after hearing argument, stating, “I think this is a classic exigent circumstances case. I think it’s absolutely classic. The patrol car—patrol guys get a radio call that there was a disturbance between a man and a woman at a specific location, 415. They respond to that call. Not only did they respond, but they ask for backup because they’re not sure what they’re going to find there. [¶] They go up to the door. The people come in and out. Who they see initially is two men and a woman. Yes, the woman says, I was just having a fight with my boyfriend. If I had a dollar for every victim that has come in here and said, I just had a verbal fight with my boyfriend, when really, she has been—she’s intimidated, she is too afraid to tell the truth, she’s got bruises that are not visible because that’s what someone does to her. So for the officers to say—and just stop their investigation at that point and say, oh, great, everybody, you’re okay, you three. Fine, great, and leave, I think that would be a dereliction of their duties considering what brought them out on this call and considering they saw—I don’t know if it was a female, but they saw the female furtively going back and forth inside the room and inside the house. They saw that. That gave them some level of suspicion that they needed to go in and just make sure that everybody was fine, which they did. [¶] They went in the house. They don’t open drawers. They didn’t, you know, look in places where they shouldn’t look. They went around the house. And in doing so, they saw an uncovered box which had what appeared to them to be controlled substances in it. I mean, you may find that incredible, but I suspect if your daughter was a victim in that house somewhere, in a third bedroom, you may have wanted the police to do a welfare check of that house. They didn’t pick that out at random. They got a radio call. They responded to the radio call. And that’s what brought them to that particular house. [¶] And, again, just because someone tells you, I’m fine, I’m the female, that is—How did that—How did that officer know‌ The officer had to then just assume that that particular female was telling the truth, that she was the only female in there when you had a radio call that there was a disturbance between a man and a woman that could be heard which resulted in a 911 call being made. He had to do that. If he hadn’t done that and there had been another victim in there, people would have been all over that officer for just not doing his duty, for just taking what the potential victims or potential suspects said to him at face value. That would be wrong. I think this is a classic case of exigent circumstances. [¶] . . . [¶] It’s not like, you know, he really—it’s not like he picked the house out of a hat. He was drawn to that house. He went to that house. No one told him they were just two males and one female in that house. He knew that a male and a female were in some type of altercation. So you wanted him to assume when he saw three people that those were the only three people in the house and to believe whatever the three people told him‌” When defense counsel pointed out that the magistrate, Judge Darrell Mavis, had relied on the community caretaker exception and not that of exigent circumstances, Judge Schnegg stated that she agreed with Judge Mavis.
II. Expectation of Privacy
In response to appellant’s appeal, respondent first argues that, despite the magistrate’s ruling, the record shows appellant had no expectation of privacy in the residence searched.[7] According to respondent, appellant’s relationship with Eskenazi was tenuous, and the purpose of his visit was commercial and not social. In addition, the evidence suggested that appellant intended to use the house as a sanctuary to escape contact with the police. Appellant’s claim to an expectation of privacy was not objectively reasonable.
Fourth Amendment rights are personal rights that may not be vicariously asserted. (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) The question of whether a defendant’s personal legal rights have been violated is a question of “whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.” (Id. at p. 140.) The inquiry is two-fold. First, the court must determine whether the individual manifested a subjective expectation of privacy in the object of the challenged search. Second, this expectation must be one that society is willing to recognize as reasonable. (California v. Ciraolo (1986) 476 U.S. 207, 211.) The reasonableness of a claimed expectation of privacy depends on the totality of the circumstances. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1044.) A defendant has the burden of proving he or she has a legitimate, objectively reasonable expectation of privacy in the area or item searched. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104; People v. Ayala, supra, 23 Cal.4th at p. 254.)
Even a house guest “has a legitimate expectation of privacy in the home where he is staying because that residence has become his substitute home both in his own mind and in the mind of his host.” (People v. Cowan (1994) 31 Cal.App.4th 795, 799; United States v. Robertson (9th Cir. 1979) 606 F.2d 853, 858, fn. 2 [overnight guest has standing].) The justification for this rule was articulated by the United States Supreme Court in Minnesota v. Olson (1990) 495 U.S. 91, as follows: “[An] overnight guest seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. . . . [¶] That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises. . . . [H]osts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household.” (Id. at pp. 99-100.)
Respondent cites Minnesota v. Carter (1998) 525 U.S. 83, 91, for the proposition that, although an overnight guest has a legitimate expectation of privacy in his host’s residence, an individual who is not an overnight guest, and instead is in the residence to conduct an illicit commercial transaction such as packaging illegal drugs, has no legitimate expectation of privacy. Respondent asserts that the analysis of whether a visit is social or commercial focuses on the visit’s purpose, duration, and whether recognizing an expectation of privacy would advance “valuable” social customs discussed in Minnesota v. Olson, supra, 495 U.S. at page 98.
Appellant testified that he was at Eskenazi’s for five to seven days prior to his arrest. He was sleeping on the couch, and he had an airbed. His personal effects were inside the residence, and he considered himself a guest of Eskenazi, whom he had met “just a few weeks prior,” and another resident, Jim Davoti.[8] He was not staying at a hotel at that point. Appellant said he had rented a hotel room but never used it. He said he did not use the residence for the purpose of packaging and shipping marijuana, although he did intend to package it there.
The magistrate found appellant’s testimony credible. Although it was appellant’s burden, we note that there was no evidence contradicting appellant’s testimony on this issue. Exhibit C to appellant’s motion to suppress evidence consists of the property report from the search, and it lists a luggage tag bearing appellant’s name. The report states that the luggage was found in the living room of the residence. Even if appellant stayed at Eskenazi’s for only one night, there was no evidence he was at the residence for only the amount of time that it took to package the marijuana. Upon independent review, we conclude there was no error in the magistrate’s determination that appellant had a reasonable expectation of privacy in Eskenazi’s home. (See People v. Carter (2005) 36 Cal.4th 1114, 1141.)
III. Motion to Suppress Properly Denied
Appellant contends that Officer Day’s initial entry into the residence was unconstitutional under the Fourth Amendment because it was not justified by objective facts. In reviewing a suppression ruling, we defer to the express and implied factual findings made by the magistrate if supported by substantial evidence, but we exercise our independent judgment in determining the legality of the search on these factual findings. (People v. Shafrir (2010) 183 Cal. App.4th 1238, 1245.) Based on our review of the law and facts, we conclude that Officer Day’s entry into the residence on South Cloverdale Avenue was valid under the community caretaker exception to the warrant requirement.
It is well settled that although the warrantless entry of a person’s residence or dwelling is presumptively unreasonable, certain exceptions to the warrant requirement exist. (Katz v. United States (1967) 389 U.S. 347, 357.) In Ray, supra, 21 Cal.4th 464, the Supreme Court adopted a community caretaker exception to the Fourth Amendment. (Ray, at p. 477.) This “latter-day role of law enforcement” refers to the diverse police duties and responsibilities that may result from requests by neighbors, friends, relatives and others for assistance when those persons are concerned about the health, safety, or welfare of another. (Id. at p. 472.) The court stated that “‘the community caretaker exception is only invoked when the police are not engaged in crime-solving activities.’” (Id. at p. 471.) On the contrary, police view the occupant “as a potential victim, not as a potential suspect.” (Ibid.) The police actions that fall within this category are varied, and each must be assessed on a case-by-case basis and in accordance with its particular rationale. (Id. at p. 472.) Under this exception, circumstances that do not rise to the level of a perceived emergency may justify a warrantless entry—whether the justification arises from the protection of property or the protection of persons. (Id. at p. 473.)
The standard for assessing the validity of police conduct vis-a-vis the Fourth Amendment is whether the officers possessed an objectively reasonable basis for their actions. (Ray, supra, 21 Cal.4th at p. 476.) The “‘“‘officer must “be able to point to specific and articulable facts which, taken with rational inferences from those facts, reasonably warrant that intrusion.” [Citations.]’ [Citations.]”’” (Ibid.) Stated otherwise, “Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions‌” (Id. at p. 477.) The officer is entitled to draw reasonable inferences from specific and articulable facts in the light of his experience. (Ibid.)
It is true that, when asked by defense counsel if he had specific facts indicating that another female was inside the residence, Officer Day testified that he had no specific facts. We believe, however, that the officer had already articulated the supporting facts before being asked this question. Officer Day had received a call of a man assaulting a woman. Upon arriving at the residence, Officer Day saw appellant look at him as if startled and immediately enter the house. The officers’ knocks were not immediately answered. Officer Day heard sounds of people running back and forth and items being moved. When Eskenazi finally opened the door he appeared angry and nervous. Officer Day saw appellant approaching from the rear of the house. After Eskenazi and appellant were handcuffed outside, Officer Day saw the woman on the couch, who appeared very nervous. She told the officers she was fine, but also kept telling the officers not to come in. Officer Day testified that he did not know if she was the female mentioned as the victim in the radio call. Officer Day called for an additional unit because he believed there might be additional suspects or victims inside the residence. He had seen only one female and two males, and domestic violence calls are some of the most violent calls to which police respond. Based on all of these circumstances, the officers “clear[ed]” the residence by searching only those places where a person might be located The vacuum-sealed packages of marijuana were in plain view.
The two elements that Ray determined were critical to maintaining “the essential constitutional balance” can be seen in Officer Day’s entry into the residence. (Ray, supra, 21 Cal.4th at p. 477.) First, the entry was “‘suitably circumscribed to serve the exigency which prompted it.’” (Ibid.) Officer Day testified that he entered only those areas where a person might be found. He did not conduct a search of containers or drawers. Second, there was no indication that Officer Day’s entry was a pretext to search for contraband. (Ibid.) We believe the trial court properly performed its “gatekeeper role” and correctly judged the credibility of the officer’s testimony and motivations. (Ibid.) Officer Day did not act in a manner “‘inconsistent with a motive to preserve life.’” (Ibid.)
In sum, the objective facts of the nature of the call, the number and gender of the persons found, their furtive movements, and their demeanors, together with the reasonable inferences from these facts that Officer Day drew based on his experience—inferences he was entitled to draw—rendered objectively reasonable the entry and walk-through of the residence under the community caretaker exception. The facts supported immediate action, in the form of entry, to render aid to a person or persons whom the officers reasonably believed might be inside and in need of assistance. (Ray, supra, 21 Cal.4th at p. 477.) “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” (New Jersey v. T. L. O. (1985) 469 U.S. 325, 337.) We believe Officer Day acted as a prudent and reasonable officer who perceived a need to act in the proper discharge of his or her community caretaking functions, and the motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________, P. J.
BOREN
We concur:

__________________, J.
DOI TODD

___________________, J.
ASHMANN-GERST


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