P. v. Harris















Filed 2/21/13 P. v. Harris CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. JOHNNY HARRIS, Defendant and Appellant.

A135316 (Solano County Super. Ct. No. FCR270729)

The trial
court denied defendant’s motion to
suppress evidence seized during a search of his hotel room. We conclude that the seizure of all of the
items from defendant’s room was lawful under the plain view doctrine, and
affirm the judgment.

>STATEMENT OF FACTS

Detective Brian Pereira of the
Fairfield Police Department investigated a series of over 30 early morning “hot
prowl” burglaries committed on the west side of Fairfield until late September
of 2009. The primary loss during the
burglaries was “U.S. Currency from wallets and purses.” During one of the burglaries committed on
June 17, 2009, at 2192 Vista Luna, Fairfield, video surveillance at the
residence depicted the suspect as “an African-American male” wearing a grey and
black plaid heavy shirt or jacket and blue sweatpants with the “words ‘New
York’ written down the side in white letters on the left leg.”

Detective Pereira learned that similar href="http://www.fearnotlaw.com/">burglaries occurred in Vallejo
during 2008. He was informed by Vallejo
Police Department officers that the manner of entry and commission of the Vallejo
burglaries – through open rear windows or slider doors – was identical to the Fairfield
burglaries. He was also told that a
suspect in the Vallejo burglaries
had been identified as “Johnny Harris DOB 10/22/1964.”

Detective Pereira
determined during the course of his investigation that defendant was residing
in room 226 of the Motel 6 on Holiday Lane in Fairfield
(room 226), a room registered to Priscilla Lovey Jackson. An incident of domestic violence between
defendant and Jackson was documented with the Fairfield Police Department.

Detective
Pereira and fellow police officers commenced surveillance of defendant and room
226. On September 28, 2009, a detective observed defendant leave
the room wearing dark colored pants, a white undershirt and a plaid flannel
jacket. The male suspect in an attempted
burglary that occurred 30 minutes later on Barton
Drive in Fairfield
was described by the victims as wearing very similar clothing.

Between
2:00 and 4:30 the next morning the officers observed defendant, again wearing
the grey flannel plaid jacket and blue sweatpants, leave room 226, walk behind
a business complex, and jump over fences into the yards of nearby residences,
then later return to the motel room “looking around nervously.”

At around 6:45 a.m., Detective Pereira drafted an
affidavit and obtained a warrant to search room 226. The affidavit recited the information known
to the investigating officers, and the assertion that “persons who commit these
crimes often keep possession of both implements and fruits of these crimes
including weapons, masks, clothing worn during the crime, as well as property
stolen, and newspaper stories about the crime, within their residence or
vehicles.” The warrant authorized
seizure of defendant, indicia of his residency in the motel room, blue
sweatpants with white lettering, a grey checkered flannel jacket, and white
tennis shoes.

Detective
Pereira and other officers arrived at room 226 to serve the search warrant at 7:00 a.m. on September 29, 2009.
Lovey Jackson and her son were detained and interviewed. They mentioned that defendant often left the
room late at night and would “return in the early morning with I-Pods,” money
and other property they believed was stolen during burglaries. After Detective Pereira briefly looked in the
room, he provided the other officers with a list of items from the stolen
property reports to be examined while the search was conducted. The officers knew that eight to ten I-Pods
and Gateway laptop computers were reported stolen by the burglary victims. Detective Pereira
carried a “binder” with the theft reports from the burglaries that listed the
stolen items.

During the
search the officers seized indicia of defendant’s occupancy of room 226, along
with “numerous” electronic items and other personal property: five to six
I-Pods, portable gaming devices, laptop computers, a silver money clip and
jewelry. Also seized were a box cutter
and a Leatherman utility tool, items Detective Pereira believed were tools used
to enter the burglarized residences through window screens. Although Detective Pereira was aware from the
stolen property reports of the burglaries he was investigating that two Gateway
laptop computers, other models of laptops, and at least eight to ten I-Pods had
been stolen, he could not “specifically” identify some of the items seized from
room 226 as property stolen in the burglaries.
In fact, some I-pods and laptops recovered from room 226 had not yet
been reported stolen. However, based on
the burglary reports, the statements from Jackson and her son that defendant
was “burglarizing” residences, and the shirt and sweatpants defendant was
wearing that matched the clothing seen on the video surveillance of one of the
burglaries, Detective Pereira “definitely” believed that all of the I-pods and
laptops found in the room were stolen, and all of them were seized. Some of the “electronic items” found in room
226 were not associated with any of the theft reports in Detective Pereira’s
binder; those were left in the room.

>DISCUSSION

Defendant
challenges the “seizure of the items from the hotel room” that were not listed
in the warrant. He argues that the
officers did not have probable cause to believe that the “items in the room
were stolen property.” Defendant
therefore asserts that the “items were not subject” to seizure under the plain
view doctrine, and “must be suppressed.”

“The standard of appellate
review of a trial court’s ruling on a motion to suppress is well
established. We defer to the trial
court’s express or implied factual findings if supported by substantial
evidence, but independently apply constitutional principles to the trial
court’s factual findings in determining the legality of the search. Where the facts are undisputed, as here, we
independently determine the legality of the search under the Fourth
Amendment.” (People v. Balint (2006) 138 Cal.App.4th 200, 205.)

The only articles of property
explicitly subject to seizure under the warrant were indicia of residency, blue
sweatpants, a grey checkered flannel jacket, and white tennis shoes. While the remaining seized items at issue
were not mentioned in the warrant, the “ ‘police may seize any evidence
that is in plain view’ ” during the course of their legitimate
activities. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, quoting >Mincey v. Arizona (1978) 437 U.S. 385,
392–393.) To prevent indiscriminate
seizure under the “plain view” doctrine, the “nexus rule” requires the officer
to “be aware of some specific and articulable fact from which a rational link
between the item seized and criminal behavior can be inferred.” (People
v. Miley (1984) 158 Cal.App.3d 25, 35; see also People v. Lenart (2004) 32 Cal.4th 1107, 1119; People v. Superior Court (Meyers)
(1979) 25 Cal.3d 67, 73; People v. Hill
(1974) 12 Cal.3d 731, 762, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896.) “Items in plain view, but not described in
the warrant, may be seized when their incriminating character is immediately
apparent.” (People v. Lenart, supra, at p. 1119.) “ ‘The plain-view doctrine permits, in
the course of a search authorized by a search
warrant, the seizure of an item not listed in the warrant, if the police
lawfully are in a position from which they view the item, if its incriminating
character is immediately apparent, and if the officers have a lawful right of
access to the object.’ [Citation.] Thus, ‘[w]here an officer has a valid warrant
to search for one item but merely a suspicion, not amounting to probable cause,
concerning a second item, that second item is not immunized from seizure if
found during a lawful search for the first item.’ [Citation.]”
(People v. Carrington (2009)
47 Cal.4th 145, 166; see also Horton v.
California (1990) 496 U.S. 128, 135–137 (Horton); Texas v. Brown
(1983) 460 U.S. 730, 739.)href="#_ftn1"
name="_ftnref1" title="">[1]

We conclude that the necessary nexus
between the items seized and criminal activity is established by the
record. Detective Pereira was aware from
his investigation that the victims of the burglaries had reported the theft of
I-pods and Gateway or other models of laptops.
He was also told by Jackson and her son that defendant left the hotel
room late at night and returned with “I-pods and stuff.” The officers had ample cause from the
investigation to believe that defendant participated in multiple burglaries
during which I-pods and laptops were stolen.
The supporting affidavit noted that burglary suspects typically store
stolen property and other fruits of their crimes in their residences.

While the officers did not relate
many of the seized laptops or I-pods with particular burglaries, the presence
of numerous electronic devices which were not presently functioning, connected
or prepared for personal use, supported the inference that the seized property
did not belong to the hotel room occupants.
The remaining information known to the officers corroborated the
reasonable belief that the seized items of property, even if not identified with
an individual reported burglary, were stolen.
The plain view doctrine does not require the officers to associate the
seized item with a “particular” crime; it is sufficient that the investigators
have the requisite cause “to believe the item is evidence of some crime.”
(People v. Kraft (2000) 23
Cal.4th 978, 1043, italics added; see also People
v. Gallegos (2002) 96 Cal.App.4th 612, 624.) Further, the search was not exploratory and
the seizure of items was not indiscriminate.
Detective Pereira declined to seize other “electronic items” found in
room 226 which he failed to associate with any of the theft reports.

The incriminating nature of the
seized items was readily apparent from information known to the officers and
the observations made during the search.
Therefore, the trial court did not err in denying defendant’s motion to
suppress. (People v. Lenart, supra, 32 Cal.4th 1107, 1119; >People v. Bradford, supra, 15 Cal.4th
1229, 1295–1296; People v. Miley, supra,
158 Cal.App.3d 25, 35–36.)

Accordingly, the judgment is
affirmed.






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	__________________________________ Dondero, J.
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J.