P. v. Tovar
Filed 5/24/13 P. v. Tovar CA1/1
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN LUIS
TOVAR,
Defendant and Appellant.
A134785
(Sonoma
County
Super. Ct.
No. SCR597955)
Defendant
pleaded no contest to felony possession of
a shotgun (former Pen. Code, § 12021, subd. (e))
and misdemeanor participation in a criminal
street gang (§ 186.22, subd. (a)),
and was placed on probation for three years with gang conditions. This timely appeal, challenging the denial of
his motion to suppress pursuant to
section 1538.5, followed. We affirm.
I. Facts
At
approximately 1:00 p.m. on February 17, 2011, William Halliday, the principal
of a local continuation school, called Santa Rosa Police Sergeant Rainer
Navarro of the Gang Crimes Team, to report an incident involving
defendant. Halliday related that shortly
after his students were released for lunch, he noticed a group of known Sureño
gang member students, standing near a corner just south of the school. A gold-colored sedan drove into the area,
stopped and parked. Halliday recognized
the occupants as defendant and his younger brother R. The brothers both got out of their vehicle
and defendant opened the trunk and removed an object, which he placed near the
front of his waistband. Fearing an
altercation was imminent, Halliday honked his horn and yelled at the Tovar
brothers to leave. The Tovars got back
into their vehicle and drove away.
Sergeant
Navarro relayed the information to Detective Kyle Philp of the Gang Crimes
Team. Detective Philp knew the Tovar
brothers by name and appearance; he searched their criminal records for more
information. Philp determined that
defendant had a 2006 juvenile adjudication of misdemeanor section 245,
subdivision (a)(1), which resulted in his being prohibited from possessing a
firearm until age 30. Defendant was a
well-known Norteño gang member and rap artist.
Defendant’s brother R. was a validated Norteño gang member and was on
juvenile court probation, with a full search and seizure condition covering his
whole residence, as well as his person and vehicle.
The
officers watched the Tovars’ residence (an apartment on Kenton Court) until
they observed defendant, a woman later identified as his wife, and R. leave the
apartment and drive away in a gold 2004 Chevrolet Impala. Detective John Cregan followed the vehicle
and advised other officers that R. was in it.
Pursuant to R.’s search clause, patrol officers stopped the vehicle,
driven by defendant, some distance from the apartment. The three occupants were removed from the car
and detained, and keys to the apartment were seized. Detective Cregan arrived at the scene of the
vehicle stop as Detective Philp arranged for all three occupants to be
transported to the police station for questioning. Philp gave the apartment keys to Detective
Cregan, but remained at the scene of the vehicle stop. Detective Cregan and four other officers
conducted a probation search of the residence.
Upon
entry into the apartment, the officers conducted a protective sweep. The Tovar brothers had been reported to have
been engaged in activity that indicated they had a weapon. In Detective Cregan’s experience, other gang
participants are often inside or near gang premises and may pose a risk due to
their concern that the police may find prohibited weapons, narcotics, or gang
indicia. While conducting the protective
sweep, Detective Cregan entered the west bedroom, and immediately saw a black pistol-grip
shotgun in plain view (the gun lay partially underneath a bed). Two boxes of ammunition were on a nearby
nightstand. After securing the
apartment, the police conducted a complete search and located indicia relating
to defendant in the west bedroom.
During
an interview at the police station, R. indicated that he slept on the couch in
the living room and that defendant and his wife slept in the west bedroom. This information was transmitted to Detective
Cregan, but he believed it was after the search was conducted. Defendant informed police that he purchased
the gun from Sportsman’s Arms in Petaluma (the next day he provided a receipt
for the purchase of the gun to Detective Philp). Defendant indicated that he usually kept the
gun in his bedroom with a lock on it.
II. Discussion
On
appeal from a trial court’s denial of a motion to suppress, we defer to the
trial court’s factual findings, whether express or implied, if they are
supported by substantial evidence. We
exercise our independent judgment as to whether, on the facts so determined,
the search or seizure was reasonable under the Fourth Amendment to the United
States Constitution (Fourth Amendment).
If the facts are undisputed, we independently determine the constitutionality
of the challenged police conduct. (
679; People v. Rangel (2012) 206
Cal.App.4th 1310, 1315.)
Defendant
challenges the legality of his detention in the field, arguing that it was not
supported by a reasonable suspicion that he had committed or was about to
commit a crime. Initially, it must be
noted that the vehicle in which defendant and his brother R. were riding was
legally detained, pursuant to R.’s probationary search clause.
other things, that R. submit to the warrantless seizure of his person at any
time of day or night. No further
justification was needed for defendant’s detention. The initial detention of the driver and occupants
of a vehicle continues, and remains reasonable, for the duration of the
stop. (Arizona v. Johnson (2009) 555 U.S. 323, 333.) Here, R.’s search clause permitted not only
the seizure of the vehicle, but also its search, and the continuing detention
of the car’s occupants while that search was conducted was reasonable. (See
Muehler v. Mena (2005) 544 U.S. 93,
98; Michigan v. Summers (1981) 452
U.S. 692, 705 [detention of occupants of residence during execution of search
warrant reasonable].)
Even
assuming the detention of defendant required a reasonable suspicion of his
involvement in criminal activity, that suspicion was amply demonstrated under
the facts. Halliday, the school
principal, had relayed information to the police that established that
defendant and his brother, both Norteño gang members, were seen stopping in
close proximity to a group of Soreño gang members, defendant got out of the
car, retrieved an object from the trunk, and placed it in the area of his
waistband. One could reasonably infer
that the retrieved item was a weapon.
Had it not been for Halliday’s quick intervention, a much more serious
altercation would likely have ensued.
The officers, upon receiving this information, checked both of the
brothers’ criminal records and found that defendant had a prior adjudication
for misdemeanor section 245, subdivision (a)(1), which resulted in a
prohibition against him possessing a firearm until age 30. The vehicle, that the officers observed
defendant, his wife, and his brother drive away from the residence in, matched
the description of the vehicle given by Halliday. Under the totality of the circumstances, the
officers had a reasonable suspicion that criminal activity was afoot, and that
the defendant was involved in it. (
230.) Nothing more is required.
Station
At
some point after the initial detention of the vehicle, defendant and the other
two occupants were transported to the police station for questioning. Once there, defendant was advised of his
shotgun found in the residence was his.
Defendant now contends that his transportation to the police station and
subsequent questioning constituted a de facto arrest, requiring probable cause
that he committed a specific crime, and that his statement is fruit of the
illegal arrest. His contention that he
was subjected to a de facto arrest without probable cause has merit, although
we find that his statement is, nevertheless, admissible.
The
United States Supreme Court has held that transporting suspects to the police
station, advising them of their rights, and interrogating them may amount to a
de facto arrest. (Dunaway v. New York (1979) 442 U.S. 200, 212; Kaupp v. Texas (2003) 538 U.S. 626, 630.) The Attorney General does not dispute that
defendant’s transportation to the police station and subsequent questioning
amounted to a de facto arrest, instead arguing that defendant forfeited this
claim, and that the action of the police was supported by probable cause, in
any event.
We
do not agree that defendant has forfeited this claim, although his assertion of
it below could have been much clearer.
As noted by the Attorney General, defendant’s moving papers in the trial
court simply asserted that he was subjected to a warrantless seizure. However, in arguing the motion below, defense
counsel did state, “[t]here was no reason to keep him there at the car,
interview him further . . . .â€
(Italics added.) Defense counsel
went on to conclude her remarks by arguing that defendant’s statement was fruit
of the poisonous tree of his illegal detention
(not mentioning de facto arrest).
However, under all the circumstances, we find that the prosecution and
court were on sufficient notice that defendant was arguing that his
transportation to the police station was not reasonable―that it was a
warrantless seizure that violated the Fourth Amendment. Similarly, defense counsel’s failure to
object when the trial court did not specifically rule on whether or not
defendant’s transportation to the police station and questioning constituted a
de facto arrest unsupported by probable cause does not forfeit the issue. The “claim†or basis of the motion was that
defendant was subjected to an illegal seizure; the trial court ruled upon that
motion by denying it. The Attorney
General cites no authority for the proposition that defendant was required to
seek a separate and distinct ruling on each individual argument made, or theory
relied upon, during the motion in order to preserve the issue on appeal.
Defendant’s
de facto arrest must have been supported by probable cause in order to be
reasonable under the Fourth Amendment.
Probable cause is a fair probability―“when the facts known to the
arresting officer would lead a person of ordinary care and prudence to entertain
an honest and strong suspicion that the person arrested is guilty of a
crime. [Citations.]†(People
v. Price (1991) 1 Cal.4th 324, 410.)
In the present case, if the shotgun had already been located in
defendant’s bedroom, that would certainly have provided the sufficient probable
cause to support the de facto arrest occasioned by defendant’s transport to the
police station and subsequent questioning.
The record, however, is unclear on the timing of the events.
Detective Philp testified that patrol
officers stopped the vehicle, that defendant, his wife, and his brother R. were
removed from the car, and that he “asked that all three of them be transported
to the police department so that they could be interviewed.†As transportation for everyone back to the
station was being arranged, Detective Cregan arrived on the scene and obtained
the keys to the residence where the shotgun was located. Philp additionally indicated that “as we were
transporting them to the station, we were discussing whether or not we were
going to go back to the residence to search it and it was decided that we
would.†He did not communicate further
with the officers
searching the residence until he
was done with an interview (with an unidentified subject) that he conducted at
the police station; he then found out how the search went.
The
burden was on the prosecution, of course, to prove the reasonableness of this
warrantless seizure of defendant.
Assuming, therefore, that the shotgun was not located until after
defendant was transported to the police station, probable cause did not develop
until some point in time after he arrived there.
General’s argument that defendant’s statement would inevitably have been
discovered by lawful means, even if it technically was obtained at a point in
time prior to the development of probable cause. The evidence surrounding the specific timing
and sequence of events was at best ambiguous, but it appears that defendant and
the others were transported to the police station at approximately the same
time that other officers responded to the residence and searched it. The shotgun was discovered fairly early on
after entry into the apartment, during the initial protective sweep of the
residence, which took approximately three to five minutes after entry. Indicia linking defendant specifically to the
bedroom where the shotgun was discovered was located shortly thereafter. This evidence was discovered before defendant
was interviewed at the police station and made incriminating statements about
the gun, which he argues are fruit of the poisonous tree of his de facto arrest
without probable cause.
His
statement, inevitably, would have been elicited by lawful means, as probable
cause for his arrest developed, at the latest, fairly soon after defendant was
transported to the police station.
Indeed, probable cause to arrest defendant (based upon discovery of the
shotgun, ammunition and indicia) existed at the time his statement admitting
ownership of the firearm was made. As
the court explained in People v. Robles
(2000) 23 Cal.4th 789, 800, “Under the inevitable discovery doctrine, illegally
seized evidence may be used where it would have been discovered by the police
through lawful means. . . .
The purpose of the inevitable discovery rule is to prevent the setting
aside of convictions that would have been obtained without police misconduct.â€
Detective
Cregan and other officers responded to the Tovars’ residence to conduct a
probation search. A provision of R.T.’s
probation required that he submit to a warrantless search of his person or
property at any time of day or night, and specifically to a search of his
reasonable hour of night by any law enforcement officer. Prior to conducting the search, Detective
Cregan knew that R. and defendant lived at the residence, and assumed that
their parents resided there as well. He
did not believe that he learned of defendant’s wife living there until after he
entered the residence. While conducting
an initial sweep of the apartment, Cregan observed a shotgun in plain view in
the west bedroom, and also discovered ammunition. Later, during a full probation search,
indicia belonging to defendant was located on the dresser in that room. Sometime after the search, he learned that R.
had told other officers that he, in fact, slept on a couch in the living
room. Defendant does not challenge the
initial entry into the residence to conduct a lawful probation search. He does, however, contend that the entry into
and subsequent search of the west bedroom, later determined to be where
defendant and his wife slept, was not authorized under R.’s probation search
clause, and that the initial entry into that room could not be justified as a
protective sweep. We disagree.
First,
the officers were justified in doing a protective sweep of the apartment prior
to conducting the probation search, pursuant to Maryland v. Buie (1990) 494 U.S. 325, 335–336 (Buie). Although
entry into a residence by the police to arrest, Buie may also apply when officers are lawfully on the premises to
conduct a probation search. As Division
Five of this court explained, in order to conduct a protective sweep in this
type of situation, the officers must have a reasonable suspicion that the area
to be swept harbors an individual posing a danger. (People
v. Ledesma (2003) 106 Cal.App.4th 857, 863 (Ledesma).) Courts must
evaluate this issue based upon a totality of the circumstances, including the
experience and specialized training of the officers. (Ibid.) Courts are to avoid “unrealistic
second-guessing†of officers acting in swiftly developing situations. (Id.
at p. 864.) The type and location of the
conduct the officers contemplate taking after the sweep are relevant factors;
conducting a thorough probation search would increase the officers’ concern, as
well as the fact that the search was going to occur on their
“ ‘adversary’s “turf,†’ †as well as the distraction of
conducting a careful examination of “all the nooks and crannies of a
probationer’s bedroom.†(
While a protective sweep is not always justified, “a prudent officer
will consider the safety concerns triggered by a search in determining the
appropriateness of first conducting a sweep and a reviewing court must do the
same.†(Id. at pp. 864–865.)
Given
this legal backdrop, the facts in the present case, viewed in light of the
officers’ training and experience, justified conducting a protective sweep of
the apartment before conducting the probation search. Detective Cregan testified that they were
unsure if someone else was in the apartment at the time they entered, and that
it had been his experience in conducting probation searches that individuals
were hiding in closets, under clothes, under beds, under mattresses, in attics,
and in garages. He indicated that it was
common that after police knock and announce, and do not hear anyone, they find
someone inside a residence, quietly waiting for the officers to go away. Further, Cregan said that in his experience,
other gang members are often either at the home of an investigated gang member
or loitering in the area, and those gang members show increased desire for
flight and fight when they have something in the house that they may be
prohibited from owning or possessing, such as weapons, drugs, or gang-related
indicia. Detective Cregan was very
experienced in gang investigations, having investigated those types of crimes
exclusively for the last three years, having investigated hundreds of gang
cases, and having done probation and parole searches of gang members on a
regular basis. The officers here were
working under facts that would have made a reasonable officer especially concerned
about conducting a probation search.
Both defendant and the probationer were known members of the Norteños,
and had been involved in a recent incident where it appeared that defendant was
armed. While the officers had detained
the Tovar brothers, and defendant’s wife, they surmised that other individuals
might reside at the apartment.
In
Ledesma, the court recognized that
“[f]irearms are, of course, one of the ‘ “tools of the trade†’ of
the narcotics business,†and relied upon that recognition in finding that a
protective sweep of a residence that was reasonably concluded to be the site of
ongoing narcotics activity was permissible.
(Ledesma, supra, 106 Cal.App.4th at p. 865.) Firearms are, certainly, one of the “tools of
the trade†of gangs. This, coupled with
their belief that others resided at the apartment, gave the officers the
required reasonable suspicion that justified a limited protective sweep of the
premises before conducting the probation search.
Additionally,
the officers were justified in entering the west bedroom pursuant to R.’s
probation search clause. “In California,
a person may validly consent in advance to warrantless searches and seizures in
exchange for the opportunity to avoid serving a state prison term. [Citations.]â€
(Robles, supra, 23 Cal.4th at
p. 795.) Under the “common authorityâ€
theory of consent, if an individual lives with a probationer, shared areas of
their residence may be searched under the probation search clause. (Id.
at pp. 795–796.) A search pursuant to a
probation search clause may not exceed the scope of the clause relied
upon. “Moreover, officers generally may
only search those portions of the residence they reasonably believe the
probationer has complete or joint control over.
[Citation.]†(
682.)
Here,
the particular search clause was broad and purported to permit the warrantless
search of R.’s entire residence. We
agree with defendant that the scope of the search that might be conducted even
pursuant to such a broad search clause is limited to those portions of the
residence that the officers reasonably believe the probationer has either
complete or joint control over. Bearing
in mind that, “ ‘[t]hose associating with a probationer assume the ongoing
risk that their property and effects in common or shared areas of a residence
may be subject to search’ †(People
v. Smith (2002) 95 Cal.App.4th 912, 919), the search of what later turned
out to be a bedroom that defendant and his wife slept in was reasonably
searched by the officers, pursuant to R.’s probation search clause.
As
the trial court found, the living situation in the home was ambiguous, and
“[t]here was no clear room identified for Mr. [R.][T.].†Although the testimony established that R.
slept on the couch, this would not have been apparent to the officers when they
entered the apartment. There were two
bedrooms, but there were at least three sets of parties that might have used
any of these rooms. Even though defense
counsel argued that pictures on the wall in the room identified the west
bedroom as defendant’s, this was not clear to the court, as the pictures could
have been put up by R. As also noted by
the court, the officers did not uncover “anything to indicate that the room in
which the gun was found was Juan’s room based on their search until they found
specific indicia that the room was Juan’s room.†Because no information in the possession of
the officers at the time the search was conducted indicated that the bedroom
where the gun and ammunition was found was exclusively occupied by defendant,
the police could reasonably conclude that the west bedroom was an area that the
probationer at least had joint access or control over. The search of this bedroom was, therefore,
valid under R.’s probation search clause.
The motion to suppress the items found in the residence was properly
denied.
III. Disposition
The
judgment is affirmed.
______________________
Sepulveda, J.*
We concur:
______________________
Margulies, Acting P.J.
______________________
Dondero, J.
* Retired Associate Justice of
the Court of Appeal, First Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
further statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
A charge of unlawful possession of ammunition (former § 12316, subd.
(b)(1)) was dismissed.
