P. v. Johnson
Filed 2/4/09 P. v. Johnson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, Plaintiff and Respondent, v. MILTON DOUGLAS JOHNSON, Defendant and Appellant. | B207147 (Los Angeles County Super. Ct. No. BA331598) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Affirmed.
Tara K. Hoveland, 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, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
In this appeal, Milton Douglas Johnson challenges the denial of his motion to suppress evidence. We find no error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Los Angeles Police Department Officer Dave Stambaugh worked with the K-9 unit, which used dogs to locate people. On the night of November 6, 2007, Officer Stambaugh responded to a request for K-9 assistance to locate a man with a gun that patrol lost. Stambaugh, two or three other officers, and one K-9 dog conducted a systematic yard-to-yard search. The dog, which had been trained to identify human scent, showed a slight interest at the side door of a garage at 1743 Mansfield Avenue. Officer Stambaugh heard the sound of a television and the noise of a fan from inside the garage.
Stambaugh tried to open the side door, but it was locked. He went to the residence at that location where he spoke to appellant and his fiance. Stambaugh testified at the suppression hearing that he told appellant they were looking for a bad guy who lives in the back garage. We would like to get in there and look and see if the bad guy got into the garage. The door is locked. Is that normal?
Appellant said it was normal. The officer asked if he had the keys; appellant said no, they had lost the keys recently and could not get in the garage themselves. The officers interest was piqued by this, and they returned to the garage. The dog continued to show the same amount of interest around the doors. Officer Stambaugh returned to the residence and told appellant he believed there was a suspect in the garage; that he wanted to make sure no one was in there; and that we were going to cut the padlock, if thats okay with him, and well replace the padlock. We have replacement padlocks. At that time the keys appeared and he handed us the keys.
The officers unlocked the padlock and opened the garage door. Just inside the garage were plywood walls lined with plastic. There was an overwhelming smell of marijuana. Officer Stambaugh saw numerous marijuana plants in various stages of growth under hot lamps, being watered. The officers continued searching for the suspect, cleared the location, and notified a patrol sergeant about what they had seen. They then resumed their search.
Detective Matthew Eastman, a narcotics officer with the Los Angeles Police Department, was called to the address. He arrived with eight officers, went to the garage, and entered through the open garage door. He saw many plants resembling marijuana and special items used to cultivate marijuana. While other officers secured the location, he went to speak with appellant.
Asked about the marijuana plants, appellant said they were his, for his personal use. He stated that his wife and children had nothing to do with the plants and knew nothing about them. Detective Eastman asked appellant to sign a consent form to allow a search of the garage. Appellant did so. Appellants fiance also signed a consent form for the search. With appellants permission, the officers searched the premises.
Appellant was arrested and charged with one count of cultivating marijuana. (Health & Saf. Code, 11358.) His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied after a hearing. Pursuant to a plea agreement, appellant pleaded no contest. Imposition of sentence was suspended and appellant was placed on 36 months of formal probation and ordered to perform 200 hours of community labor through CalTrans. He filed this timely appeal challenging the denial of the suppression motion.
DISCUSSION
Appellant claims his Fourth Amendment rights were violated when police searched his locked garage without a warrant, exigent circumstances, or consent. We disagree and affirm the courts denial of his suppression motion.
A warrantless search of a private residence or an adjacent garage is presumptively unreasonable unless it falls within a recognized exception to the warrant requirement. (People v. Robles (2000) 23 Cal.4th 789, 795.) This presumption can be overcome by a showing of one of the few specifically established and well-delineated exceptions to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357), such as hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling (Minnesota v. Olson (1990) 495 U.S. 91, 100). (People v. Celis (2004) 33 Cal.4th 667, 676.) Entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors. (Ibid.) There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers. (People v. Ramey (1976) 16 Cal.3d 263, 276; see also People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In reviewing a trial courts ruling on a motion to suppress, we apply the deferential substantial evidence standard to its finding of the historical facts. But we independently review the trial courts application of the rule of law to the facts. (People v. Ayala (2000) 23 Cal.4th 225, 255.)
Officer Stambaugh testified at the suppression hearing that his K-9 unit responded to a call to conduct a systematic yard-to-yard search for an armed suspect. When the K-9 unit arrived at the command post, they were told what had transpired at the location, the direction in which the suspect fled, and the area that had been locked down. Appellants house was in the area to be searched by Stambaughs unit. There was, at that point, an emergency situation requiring swift action which justified a search of the area.
Officer Stambaugh was the assistant dog trainer for his K-9 unit. He admitted he was not sure whether the dog used in this search was Milo or Jake, although he had been involved in the training of both dogs. He had trained Milo, and had observed Jakes early training and trained him for the last four years. Both dogs were trained to find human scent, not narcotics.
During the search of appellants property, the dog gave us a slight interest at the door of a back garage. Officer Stambaugh explained that the dog will become more animated and sit at the door and want to push his way into the door. Through the door. Asked whether the dog would identify all the houses where people are located, the officer clarified: Its a particular scent when the dog becomes what we call seasoned. It will become a fear scent. This particular dog was somewhat seasoned. Theyre going totheyll alert. A lot of dogs will alert on a residence where theres a lot of dirty clothing inside or theres a bed in there that hasnt been changed or some form of that type of thing. The officers also heard the sound of a television and a fan from inside the garage. The garage was locked.
Given the dogs alert and the sounds from inside the garage, the officers believed the suspect might be inside the locked garage. They asked appellant for the keys to the garage, but he said they had been lost. When asked, he also told them it was normal for the garage to be locked. This increased the officers interest and they returned to the garage. The dog was still giving us the same amount of interest around the doors. Concerned that the armed suspect had locked himself in the garage, the officers returned to appellant and told him they were going to cut the padlock. At that point, appellant produced the keys to the garage.
Under these facts, it was objectively reasonable for the officers to believe that the armed suspect for whom they were searching had fled into appellants garage. The existence of other possible explanations for the locked garage with sounds coming from inside did not deprive the officers of the capacity to entertain a reasonable suspicion of exigent circumstances. (See In re Tony C. (1978) 21 Cal.3d 888, 894; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.) Based on the information known to the officers, they could reasonably believe that if they took the time to obtain a warrant, the suspect would use his gun to secure his safety, or would continue his flight.
These circumstances support the officers reasonable belief that the immediate warrantless search of the locked garage was necessary to prevent the escape of an armed suspect and the risk of imminent danger to life. The exigent circumstance exception to the warrant requirement was satisfied in this case. The trial court did not err in denying appellants motion to suppress evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P.J.
We concur:
WILLHITE, J.
MANELLA, J.
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