P. v. Smith
Filed 11/1/13 P. v. Smith 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NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
v.
ROBERT LAWRENCE
HUFFMAN
SMITH,
Defendant and Appellant.
A136446
(
Nos. SCR-600242 & SCR-614245)
Appellant
Robert Lawrence Huffman Smith appeals from his convictions in two
trial court improperly denied, in each case, his motion to suppress certain
evidence under Penal Code section 1538.5.
We affirm.
PROCEDURAL BACKGROUND
After
the trial court denied his motion to
suppress in case No. SCR-600242, appellant pled guilty to one count of
& Saf. Code, § 11351) in January 2012.
In February, while out of custody pending sentencing, appellant was
arrested and new charges were brought in case No. SCR-614245. The trial court denied his motion to suppress
in this case as well. After a jury
trial, appellant was convicted of one count of selling heroin (Health &
Saf. Code, § 11352, subd. (a)), one count of child endangerment (Pen.
Code, § 273a, subd. (b)), and one count of obstructing a peace officer (
cases to an aggregate term of nine years’ imprisonment.
DISCUSSION
Appellant’s
sole challenge on appeal is to the trial court’s denial of his two suppression
motions. “As the finder of fact in a
proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court
is vested with the power to judge the credibility of the witnesses, resolve any
conflicts in the testimony, weigh the evidence and draw factual inferences in
deciding whether a search is constitutionally unreasonable. [Citation.]
Accordingly, in reviewing [a] suppression order, we consider the record
in the light most favorable to . . . respondents since ‘all factual
conflicts must be resolved in the manner most favorable to the [superior]
court’s disposition on the [suppression] motion.’ [Citation.]â€
(People v. Woods (1999) 21
Cal.4th 668, 673 (Woods).) While “ ‘we defer to the superior court’s
express and implied factual findings if they are supported by substantial
evidence, . . . we exercise our independent judgment in determining
the legality of a search on the facts so found.
[Citations.]’ [Citation.]†(People
v. Lomax (2010) 49 Cal.4th 530, 563.)
I. Case
No. SCR-600242
A.
The Suppression Hearing
At
the suppression hearing, Santa Rosa Police Officer Macias testified as
follows. On March 28, 2011, he was
patrolling a hotel parking lot known to have a high volume of illegal drug
activity. He was in uniform and in a
marked police car. Around 9:30 p.m.,
Macias saw in the parking lot an individual he knew to be Eric Aiello. Four months earlier, Aiello told Macias that
he had purchased illegal drugs in that parking lot. On March 28, Aiello walked to the edge of the
hotel parking lot and crossed to the adjacent property, the back of a gas
station parking lot, where a parked car was waiting. Aiello, while holding cash, reached into the
passenger side window of the car. When
he withdrew his hand it no longer held cash, and it appeared to Macias that
Aiello had received “something†in exchange for the cash.
Macias
pulled his patrol car behind the parked car and activated his emergency lights
and spotlights. In response, Aiello
started quickly walking away from Macias and appeared to toss something away as
he walked. The driver and only occupant
of the parked car, subsequently identified as appellant, started the car and
put it in drive. Macias twice told
appellant to stop and exit the car, the second time adding that he had already
given appellant’s license plate number to incoming units. Appellant exited the car and Macias
handcuffed him, telling appellant he was being detained but was not under
arrest. Before appellant exited the car,
Macias saw a large amount of cash on his lap.
Aiello
also stopped and was handcuffed. In the
course of conducting a patdown search of Aiello, Macias located items
indicative of drug use. Macias asked
Aiello whether he was buying drugs from appellant, and Aiello responded that he
was paying appellant a debt. Macias’s
patdown search of appellant did not reveal any indicia of criminal
activity. However, when Macias looked in
the windows of appellant’s car, he saw in plain view suspected drug
paraphernalia and a portable safe.
Macias
subsequently conducted a search of the vehicle and located over 100 empty
syringes, a cell phone with text messages indicating the owner was involved in
drug sales, and over $500 in cash. After
being confronted with the results of a canine search indicating the scent of
drugs on the driver’s seat, appellant admitted to having drugs on his person
and produced more than 50 “baggies†containing a substance later identified as
heroin.
Neither
appellant nor Aiello testified at the suppression hearing.
B.
Analysis
Appellant
argues (1) his initial detention was not reasonable, and (2) the subsequent
vehicle search was not reasonable. We
conclude that both the detention and the vehicle search were reasonable, and
that appellant’s motion to suppress was properly denied.
1.
Detention
“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.†(
231 (Souza).)
Macias
witnessed an exchange of cash for something in a location known for illegal
drug activity. One of the individuals
involved in the exchange, Aiello, previously told Macias that he had purchased
illegal drugs in that same location.
Then, when Macias turned on his patrol car’s emergency lights and
spotlight, both appellant and Aiello took evasive acts. Given the totality of these circumstances,
Macias’s suspicion that appellant had just engaged in an illegal drug sale was
reasonable. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow) [“nervous, evasive behavior is a pertinent factor in
determining reasonable suspicionâ€]; Souza,
supra, 9 Cal.4th at p. 227 [“flight
in response to the appearance of a uniformed officer or a marked patrol car
ordinarily is behavior that police may legitimately regard as suspicious, and
therefore also can be a key factor in establishing reasonable cause to
detainâ€]; id. at p. 240 [“An area’s
reputation for criminal activity is an appropriate consideration in assessing
whether an investigative detention is reasonable under the Fourth Amendment.â€];
People v. Methey (1991) 227
Cal.App.3d 349, 358 [knowledge of individual’s prior criminal activity is
appropriate factor in determining reasonableness of detention], disapproved on
another ground by Schlick v. Superior
Court (1992) 4 Cal.4th 310, 315.) We
reject appellant’s arguments to the contrary as explained below.
Appellant
challenges the trial court’s finding that Macias witnessed Aiello receive
something in exchange for cash. But
Macias’s uncontradicted testimony that he witnessed something exchanged for
cash amply supplies substantial evidence for the trial court’s finding.
Appellant
attempts to undermine the relevance of Macias’s testimony that the location was
known for illegal drug activity by arguing only the hotel parking lot was so
known and the exchange took place in the neighboring gas station parking
lot. However, Macias testified to his
experience with illegal drug activity taking place in a corner of the hotel
parking lot or its “direct proximity,†indicating that the area known for drug
activity extended beyond the formal property line of the hotel parking
lot. Moreover, it would not be
unreasonable for an officer to conclude that drug trafficking would occur in
the adjacent location.
Contrary
to appellant’s contention, People v.
Bower (1979) 24 Cal.3d 638 does not preclude consideration of the high
crime nature of the location. This case
stands for the proposition that a detention is not warranted just because
“otherwise innocent-appearing circumstances†take place in a high-crime
location. (Id. at p. 645.) But the
circumstances here were far from “innocent-appearing,†— Macias witnessed an
individual he knew previously engaged in illegal
drug activity exchange cash for something, and both Aiello and appellant
began to flee at the sight of Macias.
That this suspicious activity took place in an area known for illegal
drug sales is a relevant factor in determining whether the detention was
reasonable. (Wardlow, supra, 528 U.S.
at pp. 124-125; Souza,
519, relied upon by appellant, is also distinguishable. In Jones,
the Court of Appeal found a detention unreasonable where an officer witnessed
the defendant give another person money on a street corner in an area known for
illegal drug activity. (
something, one of the individuals involved in the exchange was known to have
bought illegal drugs at that location, and both members to the transaction
began to flee at the sight of a police officer.
Finally,
appellant argues the fact he and Aiello fled at the sight of Macias should not
be considered consciousness of guilt.
Specifically, appellant contends, when Macias turned on his patrol car’s
spotlight, he had not verbally identified himself as a police officer and
appellant and Aiello may have simply wanted to leave the “annoyance†of the
spotlight. The trial court’s implied
finding that appellant and Aiello knew Macias was a law enforcement officer
when they began to flee is a finding of fact to which we defer if supported by
substantial evidence. Macias testified
he was in uniform and a marked police car.
He was thus plainly identifiable as a police officer. There was no evidence that an obstruction
blocked either appellant’s or Aiello’s view of Macias’s uniform or patrol car,
or that the spotlight was so blinding they could see nothing else. Substantial evidence supports the trial
court’s finding. Moreover, despite
appellant’s attempt to undermine this factor, it is well settled that flight
from a police officer is relevant to the reasonableness of a detention. (Wardlow,
supra, 528 U.S. at p. 124;
2.
Vehicle Search
“If
there is probable cause to believe a vehicle contains evidence of criminal
activity,†a warrantless search is permissible “of any area of the vehicle in
which the evidence might be found.†(
347.) Probable cause exists if, given
all the circumstances known at the time, “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.†(Illinois
v. Gates (1983) 462 U.S. 213, 238.)
In
addition to the circumstances supporting the detention discussed above, Macias
found other indications of criminal activity before he searched appellant’s
car. First, he found drug paraphernalia
on Aiello, indicating that Aiello was still actively using illegal drugs and
rendering it more likely that Aiello had just been involved in a drug
transaction.
title="">[1] Second, Macias saw drug paraphernalia, a
large quantity of cash, and a portable safe in plain view in appellant’s car.
to a fair probability appellant was selling illegal drugs out of his car, and
evidence of such activity would be found in the car. The vehicle search was supported by probable
cause.
II. Case
No. SCR-614245
A.
The Suppression Hearing
1.
The People’s Witnesses
Deputies
Sedgwick and Petersen of the Sonoma County Sheriff’s Office testified for the
People at the suppression hearing as follows.
Around 8:00 p.m. on February 11, 2012, Sedgwick saw lit fireworks in the
parking lot of a Santa Rosa motel, in front of room 2B. Setting off fireworks is prohibited in Santa
Rosa, and Sedgwick and Petersen approached the motel room to investigate. As they were approaching, a woman
subsequently identified as Angela Neiman exited room 2B and lit a
cigarette. She did not directly respond
when Sedgwick asked her whether she set off the firework.
Appellant
then emerged from the motel room and admitted lighting the firework. Sedgwick and appellant engaged in
conversation approximately 10 to 20 feet away from the motel room. Petersen and Neiman conversed as Neiman stood
in the doorway of the room. The door was
partially open and Petersen could see two young children playing inside. He also saw a double or queen bed, toys,
personal effects, and food. Neiman was
supervising the children as she talked to Petersen, glancing back at them and
giving them instructions.
At
some point during their conversation, Neiman told Petersen that she needed to
help her son use the bathroom. Petersen,
concerned there might be weapons inside the room, asked if he could follow
her. Neiman responded “yes†or “yeah.†Petersen stepped inside the room and observed
in plain view what he suspected to be illegal drugs and paraphernalia. Appellant did not object when Petersen
entered the motel room, although he appeared agitated when Petersen exited.
Petersen
told Sedgwick what he had seen and stated they should arrest appellant. After arresting appellant, Sedgwick asked Neiman
what she was doing at the motel room that evening. She first responded that she had brought her
son to play with appellant’s son, but then admitted she was there to purchase
illegal drugs.
2.
Appellant’s Witness
Neiman,
the sole witness for appellant at the suppression hearing, testified as
follows. On the evening in question, she
was visiting appellant, an acquaintance of hers, at a motel room he had
rented. About five minutes after she
arrived, she stepped out of the room to smoke a cigarette and saw Sedgwick and
Petersen approach. Shortly after they
began talking to her, appellant came out of the room. Neiman stood in the doorway while appellant
talked to Sedgwick and Petersen approximately three feet away. The door was halfway open and Neiman was
watching her son and appellant’s son as they played inside.
When
her son told her he needed to use the bathroom, Neiman relayed this to
Petersen, who was standing closer to her than Sedgwick. Neiman walked with her son to the bathroom
door and then stood in the middle of the motel room, between the bathroom and
the outside door. She was watching her
son in the bathroom when she heard appellant say, “Hey, what are you
doing.†Neiman turned around and saw
that Petersen had entered the room.
Petersen said, “She gave me permission,†and Neiman responded that she
had not.
Neiman
admitted that, when later asked by Sedgwick why she was at the motel room, she
initially told him it was a play date for her son. She further admitted that this answer was not
the truth, and that she subsequently told Sedgwick the real reason, which was
to buy heroin. Neiman suffers from
hearing loss and, because she had used heroin earlier on the day in question,
was less perceptive that evening than she otherwise would have been.
3.
Trial Court’s Ruling
The
trial court denied appellant’s motion to suppress. The trial court credited the deputies’
testimony, and found Neiman not credible.
Accordingly, the trial court found that Neiman consented to Petersen’s
entry into the motel room. The trial
court further found that Neiman had apparent authority to consent to the entry,
upon which Petersen reasonably relied.
B.
Analysis
Appellant
argues (1) Petersen’s entry was not justified under the apparent authority
doctrine, (2) the deputies improperly removed appellant from the motel room
doorway to avoid his objection to the entry, and (3) the trial court improperly
credited the deputies’ testimony over Neiman’s.
We conclude Petersen’s entry was reasonable and appellant’s motion to
suppress was properly denied.
1.
Apparent Authority
“[A]
warrantless search of property . . . is reasonable under the Fourth
Amendment where proper consent is given.
[Citation.] Where the subject
property is a premises occupied by more than one person, a search will be
reasonable if consent is given by one of the joint occupants ‘who possessed
common authority over or other sufficient relationship to the premises or
effects sought to be inspected.’ [Citations.] This is so, even where the defendant has not
consented to the search.
[Citation.] Further, even if the
consenting cotenant, in fact, lacks authority, officers may rely on his or her
apparent authority. [Citations.]†(People
v. Oldham (2000) 81 Cal.App.4th 1, 9-10 (Oldham).) This apparent
authority doctrine “does not suggest that law enforcement officers may always
accept a person’s invitation to enter premises. . . . As with other factual determinations bearing
upon search and seizure, determination of consent to enter must ‘be judged
against an objective standard: would the facts available to the officer at the
moment . . . “warrant a man of reasonable caution in the
belief†’ that the consenting party had authority over the premises? [Citation.]â€
(Illinois v. Rodriguez (1990)
497 U.S. 177, 188.)
Appellant
first contends it was not objectively reasonable for Petersen to conclude that
Neiman had authority to consent to the entry, and therefore Petersen had the
duty to inquire further into her authority before relying on her consent. We disagree.
Neiman emerged from the motel room alone and stood outside smoking a
cigarette as the deputies approached.
She subsequently stood in the doorway and supervised two young children
who were playing inside the room. This
conduct made it appear she had control over the premises and the ability to
come and go as she pleased. Moreover,
the portion of the room visible to Petersen provided no indication only one
person was staying there. Under these
circumstances, it was reasonable to conclude Neiman was staying in the motel
room with appellant and therefore had the authority to consent to Petersen’s
entry.
The
cases cited by appellant requiring further inquiry before a law enforcement
officer could rely on apparent authority all involve circumstances in which the
officer had reason to suspect the individual in fact lacked apparent
authority. (U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1025-1026 [male
individual’s response to officer’s knock on apartment door did not constitute
apparent authority where officer knew this individual was not on the lease for
the apartment, knew a woman owned a car frequently parked in the apartment’s
designated parking space, and had not seen this individual on any of the
officer’s many previous visits to the apartment complex]; State v. Kieffer (1998) 217 Wis.2d 531, 549-550 [homeowner’s
statement that the defendant slept in a loft above the garage and did not pay
rent did not constitute apparent authority where loft door had a lock to which
homeowner lacked key and homeowner stated that he always knocked before
entering loft door even if unlocked]; People
v. James (1994) 163 Ill.2d 302, 318 [the driver’s consent to search of
vehicle did not constitute apparent authority to search the passenger’s purse
left on a passenger seat: “The purse was found on a passenger seat in the car,
not on the driver’s seat, thereby tending to the conclusion that the purse
belonged to the passenger, not the driver.
It would have been unreasonable for the officer to believe that [the
driver] shared some common use in the purse with one of the passengers in the
vehicle, since a purse is generally not an object for which two or more persons
share common use and authority.â€]; State
v. Suazo (1993) 133 N.J. 315, 322 [the driver’s consent to search of
vehicle did not constitute apparent authority to search bag the defendant
identified as his prior to the search].)
These cases are therefore distinguishable, because the record reveals no
circumstances casting doubt on Neiman’s apparent authority prior to Petersen’s
entry.
Appellant
next argues Petersen did not actually believe that Neiman had authority to
consent to the entry. Appellant points
to the deputies’ testimony that after discovering illegal drugs in the motel
room they arrested appellant but not Neiman, and instead asked Neiman what she
had been doing in the motel room that night.
Appellant argues such conduct is not consistent with a subjective belief
Neiman shared control of the room.
Petersen’s
subjective belief is a question of fact.
(Woods, supra, 21 Cal.4th at p. 674 [officer’s subjective reason for
conducting search is question of fact].)
Therefore, we must defer to the trial court’s finding that Petersen
subjectively believed Neiman had apparent authority to consent if the finding
is supported by substantial evidence.
appellant were “staying together†in the motel room. He further testified that, in his
conversation with Neiman prior to the entry, they did not discuss who had rented
the room or her relationship with appellant, and that he had no independent
knowledge of these matters. Although the
decision to arrest only appellant for the illegal drugs found in the motel room
suggests Petersen did not attribute them to Neiman, this does not contradict
Petersen’s testimony about his earlier belief in her authority to consent to
the entry to that room; he may have obtained relevant information on this issue
after the entry. Substantial evidence
supports the trial court’s finding that Petersen subjectively believed Neiman
had authority to consent to the entry.
2.
Removal to Avoid Objection
As
noted above, where a property is occupied by more than one person, the consent
of one is generally sufficient to render a search reasonable. (Oldham,
supra, 81 Cal.App.4th at pp.
9-10.) However, “if a potential
defendant with self-interest in objecting is in fact at the door and objects,
the co-tenant’s permission does not suffice for a reasonable search.†(Georgia
v. Randolph (2006) 547 U.S. 103, 121.)
This exception only applies if the defendant is present prior to the
search and objects: “So long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance for the sake of
avoiding a possible objection[,]†“the potential objector, nearby but not
invited to take part in the threshold colloquy, loses out.†(Ibid.)
Appellant
does not claim he objected to the entry prior to its occurrence. Instead, he argues the deputies improperly
removed him from the motel room doorway to preclude him from objecting. But the record is silent as to whether it was
appellant or Sedgwick who initiated the movement away from the doorway. In any event, even assuming Sedgwick moved
appellant, appellant has pointed to no evidence in the record (and we have
found none) that any such movement was made to prevent him from objecting to an
entry. Absent such evidence, the fact
that appellant was “nearby but not invited to take part in the threshold
colloquy†does not render the entry violative of his Fourth Amendment
rights. (Georgia v. Randolph, supra,
547 U.S. at p. 121.)
931 A.2d 452, cited by appellant, is not to the contrary, as in that case the
defendant in fact objected to the search prior to its occurrence. (Id.
at p. 454.)
3.
Credibility Findings
The
trial court credited the testimony of Sedgwick and Petersen and found Neiman
not credible. Appellant challenges
several of the factors relied upon by the trial court in its adverse
credibility finding. But we must defer
to the credibility determinations of the trial court, as “[t]he trial court is
the exclusive judge of the credibility of the witnesses.†(People
v. Duncan (2008) 160 Cal.App.4th 1014, 1018 (Duncan).) In any event,
there is support in the record for the trial court’s adverse credibility
finding: among other things, Neiman admitted initially lying to Sedgwick (which
appellant concedes “can lessen her credibilityâ€) and admitted that she was not
as perceptive on the night in question as she would have been had she not used
heroin that morning.
Appellant
urges us to reject the testimony of the deputies. “To reject the statements given by a witness
whom the trial court has found credible, either they must be physically
impossible or their falsity must be apparent without resorting to inferences or
deductions. [Citation.]†(Duncan,
supra, 160 Cal.App.4th at p.
1018.) Appellant has identified no such
statements by Sedgwick or Petersen.
DISPOSITION
The
judgments are affirmed.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
patdown search as not reasonable, he lacks standing to do so. (See Rawlings
v. Kentucky (1980) 448 U.S. 98, 104-105.)
point to search for the item that Aiello had tossed away, he was not, as
appellant suggests, required to do so.
