P. v. Love

Filed 9/27/07 P. v. Love 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Jackie Love was charged by information with possession for sale of cocaine base (count 1) (Health & Saf. Code,  11351.5); possession of a firearm by a felon (count 2) (Pen. Code  12021, subd. (a)(1)); possession of ammunition (count 3) (Pen. Code,  12316, subd. (b)(1)); and misdemeanor possession of marijuana (count 4) (Health & Saf. Code,  11357, subd. (b)).

Appellant entered a plea of not guilty. She filed a motion pursuant to Penal Code section 1538.5 to suppress evidence seized during a search of her home.[1] The trial court denied the motion and, pursuant to a negotiated plea, she entered a plea of no contest to possession for sale of cocaine base. The remaining counts were dismissed. The trial court suspended sentencing and placed appellant on three years formal probation with the condition that she serve 180 days in county jail. Appellant claims her suppression motion should have been granted and the evidence seized from her apartment excluded. She contends the matter must be remanded so she can withdraw her plea. We disagree and affirm.

FACTS

Appellant's adult son, Kenneth Sloan, lives with her. He is on probation and was the subject of a probation search at appellant's home. They have separate bedrooms at opposite ends of the house.

The Disarm Unit of the Los Angeles County Probation Department performs surprise compliance checks on randomly selected probationers. They decided to search Sloan's residence. Deputy Probation Officer Jeffrey Cup-Choy visited the residence, accompanied by members of the Sheriff's Department and a K-9 unit.

When the search team arrived, appellant answered the door. Three small children were in the house. Appellant told the officers that Sloan was not at home. The officers asked if they could do a "protective sweep," for safety purposes, and appellant agreed. Sloan's bedroom door was locked, so they forced it open to gain entrance. The officers searched his bedroom, but found no contraband.

Cup-Choy noticed a strong smell of marijuana. He asked appellant about the odor and she said she had smoked marijuana earlier that day. The officers brought a police dog into the house to detect narcotics. The dog alerted to appellant's bedroom. The officer asked appellant if there were narcotics in her bedroom and she said there was marijuana. When the officer walked into appellant's master bathroom he saw a scale in plain sight. Other officers found a bag of marijuana in her bedroom.

Cup-Choy asked appellant for her identification and she told him it was in her purse in her bedroom closet. She gave him permission to retrieve her purse. He opened it and found a small bag of rock cocaine. Cup-Choy showed this to the canine handler, who took the dog to appellant's closet. The dog alerted on a glass-like measuring device with white residue. Appellant was arrested. She told the officers there was a firearm in her bedroom and indicated where it was located.

After the preliminary hearing, appellant filed a suppression motion. She alleged that law enforcement exceeded the scope of a probationary search when they searched her bedroom. She claimed the contraband they seized should be suppressed. The court held an evidentiary hearing and denied the motion.

DISCUSSION

Validity of Search

A defendant may seek review of the validity of a search or seizure, even if his conviction is by plea, provided he has moved to suppress the evidence. ( 1538.5, subd. (m).) Under those circumstances, a certificate of probable cause is not required. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)

In reviewing a trial court's ruling on a suppression motion, we defer to the court's factual findings that are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Camacho (2000) 23 Cal.4th 824, 830.) The trial court "sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences[.]" (People v. Needham (2000) 79 Cal.App.4th 260, 265.) Whether a search is constitutionally reasonable, however, is a legal question upon which we exercise our independent judgment. (People v. Hughes, supra, 27 Cal.4th at p. 327.)

A residence search conducted without a warrant is presumed unreasonable unless it comes within an exception to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357.) One such exception is a probation search. A probationer may validly be required to submit to warrantless searches of his person or residence as a condition of probation. (People v. Woods (1999) 21 Cal.4th 668, 674-675.)

Appellant argues on appeal that, during a probation search of a home that a probationer shares with others, law enforcement may only search those areas over which they reasonably believe the probationer has complete or joint control. They may not search areas in which the probationer has no privacy or possessory interest. Appellant contends that all of the evidence against her was found in her bedroom. She reasons that, since this was not a common area, a search warrant was required.

Appellant concedes that the police had probable cause to believe there was marijuana inside her bedroom when they detected the odor and she admitted having smoked it earlier that day. She claims, however, that "probable cause alone is insufficient to permit the warrantless search of someone's home." She contends that the officers were required to obtain a search warrant or establish that an exception to the warrant requirement applies.

We disagree. Once the officers found the marijuana, they had probable cause to arrest appellant. (People v. Superior Court (Martin) (1971) 20 Cal.App.3d 384, 387-388.) Once detained, they had a right to demand her identification. (People v. Hart (1999) 74 Cal.App.4th 479, 488-489.) Appellant consented to Cup-Choy's retrieval of her purse from the closet to obtain her identification, and the rock cocaine was visible inside her purse.

Appellant objects to the "warrantless K-9 search," claiming that she did not consent to such a search. She argues that it was unnecessary because the officers had already performed a protective sweep and secured the residence, thus there was no likelihood that any evidence would be destroyed while they waited to obtain a warrant. Appellant contends that the direct product of the canine search, the marijuana in her bedroom, should have been excluded. She acknowledges that she gave her consent to the officers' to search her purse. However, she claims it was involuntary because "there was no attenuation" between the "illegal K-9 search" and her consent.

Appellant presents no authority for her argument the canine search was unlawful. Cup-Choy could smell the odor of marijuana without the use of a dog. A scale was visible in the bathroom. This provided justification to detain appellant and to demand her identification. Retrieving her purse lead to the discovery of the rock cocaine and the bowl with residue. The trial court properly denied the section 1538.5 motion. The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Thomas R. White, Judge

Superior Court County of Los Angeles

______________________________

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Respondent.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Scott A. Taryle, Supervising Deputy Attorneys General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further statutory references are to the Penal Code.