P. v. Southerd

Filed 12/8/08 P. v. Southerd CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Alison E. Kaylor, under appointment by the Court of Appeal, for Defendant and Appellant Ray Panagiotis Southerd.

Seth N. ODell for Defendant and Appellant Jacob Douglas Wheldon.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Codefendants and roommates Ray Panagiotis Southerd and Jacob Douglas Wheldon pled no contest to marijuana charges following the denial of a motion to suppress evidence found during a search of their apartment. On appeal, Southerd contends (1) the officers did not have probable cause to believe Southerd resided at the apartment before they entered, (2) the knock-and-talk procedure did not result in consent for the officers to enter the apartment, (3) no exigent circumstances justified the entry, and (3) no legitimate justification supported a protective sweep. Wheldon contends (1) the officers did not have probable cause to believe Southerd resided at the apartment before they entered and (2) the knock-and-talk rule did not apply because the officers did not have the honest intent to ask questions. We will affirm.

PROCEDURAL SUMMARY

On January 26, 2007, the Kern County District Attorney charged Southerd and Wheldon with manufacturing a controlled substance (Health & Saf. Code,  11379.6, subd. (a);^[1]count 1); possession of marijuana for sale ( 11359; count 2); possession of anabolic steroids for sale ( 11378; count 3); cultivating marijuana ( 11358; count 4); possession of psilocybin ( 11377; count 5); and maintaining a place for the use or sale of drugs ( 11366; count 6). The information alleged that both Southerd and Wheldon were armed with firearms (Pen. Code,  12022, subds. (a)(1) & (c)).

Southerd filed a motion to suppress evidence (Pen. Code,  1538.5), which the trial court denied.

Southerd pled no contest to possession of marijuana for sale (count 2), with a stipulation that he serve no more than 16 months in prison. Wheldon pled no contest to cultivating marijuana (count 4), with a stipulation that he serve no more than two years in prison. The remaining charges and allegations were dismissed.

The trial court sentenced Southerd to one year four months in prison and Wheldon to two years in prison.

FACTS^[2]

On December 7, 2005, at about 8:30 p.m., Officers Jones and Hanna received a dispatch regarding a report that Southerd was selling marijuana from his residence at a particular address on Merlot Court, in Apartment B. The reporting party (party 1) had described Southerd as an 18-year-old White male and had also stated there were guns inside Southerds apartment. The officers went to a parking lot to wait for the rest of their Special Enforcement Unit. Hanna conducted a records check on Southerd, then called party 1s number and spoke to someone with a different name (party 2). Hanna told party 2 the officers were on their way and it would take them a while to arrive. Party 2 said he would be waiting for the officers. Hanna also called the juvenile probation department and learned that Southerd was on active juvenile probation, subject to search for narcotics. According to the probation department, however, Southerds address was not on Merlot Court.

When the officers arrived, each in full regular uniform, they found party 2 and three other people waiting in a parked vehicle near the apartments. Party 2 said he had overheard a telephone conversation with his roommate about purchasing marijuana. He was concerned, so he followed his roommate to the apartment. When he saw which apartment his roommate entered, he recognized the apartment as Southerds because he had a history with Southerd, including an incident during which Southerd pointed a handgun at him. Party 2 had seen Southerd at this apartment in the past. Party 2 identified Southerds apartment as the second apartment down the breezeway.

Jones and four or five other officers went to the front of the apartment and Hanna and one other officer went to the back. The officers intended to conduct a knock and talk, a cooperative encounter aimed at obtaining consent to enter or search. In this type of case, when the officers received a tip regarding narcotic activity, they usually attempted such a contact. Here, they intended to confirm that Southerd lived at the apartment and to investigate reported crimes, that marijuana was being sold and that at least one firearm was inside the apartment. Due to the report of a weapon in the apartment, at least one officer on the team carried an AR 15 weapon, but because the officers intended to conduct a knock and talk, any officer armed with an AR 15 stood back a distance for the intimidation factor.

Hanna had informed the other officers that Southerds apartment was the second apartment down the breezeway, but when the officers approached the second door they found it was Apartment C, not Apartment B. Meanwhile, from under cover at the back of the apartment, Hanna observed Southerd walk out the back door of Apartment C with two females. He intercepted Southerd and radioed the officers in front to inform them Southerd had exited Apartment C. Hanna did not smell marijuana emanating from Southerds person.

At the front, an officer knocked on the door of Apartment C. About one minute later, someone opened the door then walked away, back into the living room. Jones interpreted the conduct as a gesture letting them in and not objecting to their entering the apartment.

From his position just outside the front doorway, Jones observed about five people sitting in the living room. There were several marijuana bongs on the coffee table. The room contained a thick cloud of smoke and smelled strongly of marijuana. At first, the people remained seated, apparently smoking marijuana, until they realized the officers were at the door, at which point they all panicked and started running around. Jones could not determine where everyone went, so he said, Police, stop. Some of the people remained seated and some ran out of the officers view.

Jones and the other officers entered the apartment to conduct a protective sweep to ensure that no one was retrieving weapons or discarding narcotics. At the time they entered, Jones believed Southerd lived in the apartment, based on party 2s information that Southerd lived there and was selling narcotics from the apartment and on Southerds exit from the back door of the apartment. Once inside, the officers searched every place that a person might be hiding. Jones observed cash ($923) on the coffee table in the living room. In the kitchen, he saw a large scale on the kitchen table and a bucket of marijuana under the table. Jones did not observe any contraband in the bedroom downstairs.

Upstairs, there were two bedrooms. In one bedroom, Jones observed 36 pots of marijuana, grow lamps and a ventilation system. Most of the plants in the pots had already been harvested. String was suspended across the room and marijuana was drying on the string. In the other bedroom, Jones observed a handgun on the nightstand next to the bed. In the middle of the room was a bucket of marijuana. An open backpack also contained marijuana. In Joness opinion, the quantity of marijuana was sufficient for the purpose of sale.

Jones questioned the people detained in the apartment, who were again seated in the living room. Jones asked, Does anybody live here? No one acknowledged living in the apartment. Wheldon was present, but Southerd had not returned to the apartment. Then Jones asked them who lived there and one or two people stated that Southerd did. Wheldon did not indicate that he lived there or that any areas of the apartment were within his exclusive dominion and control, nor did he express concern or anger regarding the officers entry into the apartment, nor did he consent to a search of any room.

After Jones was told that Southerd lived in the apartment, the officers began conducting a search of the apartment pursuant to Southerds probation search terms.

After hearing this evidence, the trial court concluded the officers had sufficient information to conclude that Southerd lived at the apartment and to conduct a probation search pursuant to his search terms.

DISCUSSION

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures by police officers and other government officials. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335.) Under the Fourth Amendment, a warrantless search of a private residence is unreasonable per se unless it falls within a recognized exception to the warrant requirement, for example, where consent to the search has been given. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; People v. Robles (2000) 23 Cal.4th 789, 795.) In California, a person may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to serve probation and avoid serving a state prison term. (People v. Robles, supra, at p. 795.) Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.] (Ibid.)

On appeal, we defer to the trial courts factual findings if they are supported by substantial evidence, but independently review as a question of law whether, on the facts found, the search conforms to the constitutional standard of reasonableness. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Stewart (2003) 113 Cal.App.4th 242, 248.)

Southerd and Wheldon both contend the officers did not have reason to believe Southerd resided in Apartment C. We disagree. Although the probation department had a different address on record, the officers had reason to believe Southerd currently lived in either Apartment B or Apartment C. Party 1 identified Apartment B as Southerds residence, and Party 2, who was present, identified the second apartment down the breezeway -- which logically could have been thought to be Apartment B, but turned out to be Apartment C. When the officers observed Southerd leaving Apartment C, they had reason to believe they had discovered which of the two apartments was Southerds residence. The possibility that Southerd previously may have lived at the address known to the probation department does not affect the facts known to the officers at this time.

Both Southerd and Wheldon criticize the officers for failing to investigate in the face of conflicting address information. It seems to us, however, they did exactly that. They gathered information and witnessed Southerd exit the back door of Apartment C. The officers belief that Southerd lived in Apartment C was reasonable. The trial courts conclusion on this point was supported by substantial evidence.

Having determined that the warrantless entry and search were justified by Southerds probation search terms known to the officers before they entered the apartment, we need not address other theories discussed by the parties.^[3] The trial court did not err by denying the suppression motion.

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Gomes, J.

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^[1] All statutory references are to the Health and Safety Code unless otherwise noted.

^[2] The facts are taken from the suppression hearing.

^[3] We note that neither party challenges the extent of the probation search.