P. v. Strachan

Filed 6/4/07 P. v. Strachan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

An Information Summary dated June 16, 2005 charged defendant Hugh Trung Strachan with two counts of possession of a controlled substance for sale (Health & Saf. Code, 11378). After the trial court denied defendants motion to suppress evidence, defendant pleaded no contest to both counts pursuant to a plea agreement. On January 12, 2006, the court suspended imposition of sentence and placed defendant on three years probation subject to various terms and conditions. On appeal, defendant claims the court erred in denying his motion to suppress. We disagree and affirm the judgment.

                                                                                                                                                                I.            Background

On March 19, 2005, Bridget Anderson led Santa Clara County police officers Bob Henderson and John Fanucchi on a high speed chase, narrowly missing pedestrians and us[ing] any means possible to evade the police. Anderson eventually abandoned the car and eluded arrest. Henderson searched the car and recovered suspected cocaine and heroin, as well as items pointing to Andersons identity. The officers arrested a male passenger, who was on parole at the time of the incident.

At 9:40 p.m. the next day, March 20, 2005, police received information from a confidential informant that Anderson was at an apartment on Warren Drive in Santa Clara. The informant was taken to the site to identify the specific apartment. At approximately 10:50 p.m., Henderson, Fanucchi, and two other officers (Mike Seadler and Thomas Leipelt) gathered at the identified address. The officers, who were in full uniform, had neither an arrest warrant nor a search warrant, but hoped to make consensual contact with someone at the apartment to facilitate the arrest. The officers discussed Andersons involvement with narcotics and the fact that she appeared willing to do anything necessary to avoid apprehension.

Leipelt stood watch at the rear of the building to prevent an escape, and the remaining three officers proceeded to the second-story apartment. As the officers approached, they saw Anderson through partially open blinds, recognizing her from the chase the day before. She looked as if she was preparing to leave the apartment so the officers took up positions in the apartment buildings public walkway, on either side of the front door. Moments later, Anderson opened the door and stepped out onto the walkway. Fanucchi grabbed her by the arm and identified himself as a police officer. Anderson resisted by pulling away from him and toward the interior of the apartment. As she pulled away, her momentum carried Fanucchi two to four feet into the apartment and to the ground. Henderson and Seadler followed Fanucchi into the apartment to assist as Anderson struggled with Fanucchi, resisting arrest. Leipelt heard a woman scream and the other officers call for assistance, and he ran up the stairs.

Inside the main living room of the apartment, Henderson ordered a male occupant standing just inside the door, and only a foot or two from Fanucchi and Anderson, to the ground. As Seadler handcuffed the male occupant and Fanucchi struggled to handcuff Anderson, Henderson commenced a protective sweep. The small apartment was poorly lit and cluttered with boxes and other objects piled at least waist-high. Henderson walked down the hallway, which had two queen-size mattresses leaning against the wall and presented a blind spot to the officers. At the end of the hallway, Henderson observed a room with a closed door and the light on. Henderson opened the door and found defendant and another adult, Todd Eagen, in the master bedroom. Leipelt joined Henderson and assisted him in handcuffing the men for officer safety reasons. As the officers handcuffed the men, they observed a four foot long glass crack pipe in open view in the attached master bathroom.

Defendant and Eagen were taken to the living room and all three men detained on the living room couch. Henderson transported Anderson to the police station, and Leipelt and Fanucchi informed the men of the reasons for the police presence and Andersons arrest. The officers determined that defendant was the apartments resident and asked him if there was anything else in the residence that shouldnt be. Defendant replied that there was, in the master bedroom and bathroom. Fanucchi asked defendant if the police could search those areas, and defendant responded in the affirmative: Yeah, go ahead, if you want.

None of the officers recalled whether defendant mentioned his rights or a lack of knowledge regarding his right to refuse consent. Eagen testified that prior to defendant giving his consent, defendant remarked that he was unsure of his rights.

Leipelt searched the master bedroom and bathroom and recovered the pipe, suspected methamphetamine, and pay-owe sheets indicating possession for sale. The search was conducted five to ten minutes after defendant and Eagen were brought into the living room. After this initial search, Fanucchi called his supervisor, who arrived later with a consent-to-search form. Defendant signed the form, which included consent to search other areas of the apartment, storage areas, and defendants vehicles. Both the officers and Eagen described defendant as cooperative throughout the incident.

In response to defendants motion to suppress all evidence seized during the search of his apartment, the People offered exigent circumstances, a protective sweep, plain view, and consent as justifications for the entry, search and seizures. The court took the matter under submission at the conclusion of the suppression hearing, and denied the motion to suppress via a subsequent minute order which contained no factual findings.

                                                                                                                                                                 II.           Discussion

The Fourth Amendment, made applicable to the states through the Fourteenth Amendments due process clause, guarantees the right to be secure from unreasonable search and seizure. (Mapp v. Ohio (1961) 367 U.S. 643, 643-660; People v. Carter (2005) 36 Cal.4th 1114, 1140 (Carter).) Evidence obtained through police conduct that violates the Fourth Amendment is subject to the exclusionary rule and must be suppressed. (People v. Williams (1988) 45 Cal.3d 1268, 1299.) In the case of a warrantless search, the prosecution bears the burden of establishing that the search was justified by some exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830.)

In reviewing a trial courts ruling on a motion to suppress, we review the evidence in a light favorable to the courts ruling and uphold those express or implied findings of fact by the trial court that are supported by substantial evidence. (Carter, supra, 36 Cal.4th at p. 1140.) We independently review the applicable law and its application to the established facts. (Ibid.)

A.                 Officers Entry

Defendant first contends that the officers entry into the apartment with neither a warrant nor consent was unjustified. The People rely on hot pursuit of a felon and other exigent circumstances to justify the officers entry.

As the United States Supreme Court has explained, a warrantless intrusion may be justified by 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, internal quotations and citations omitted.) There is no ready litmus test for determining whether such [exigent] 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.) In this case, we find ample justification under the exigent circumstances doctrine for the officers warrantless entry.

First, it is well-established that police may make a warrantless probable cause arrest in a public place (United States v. Watson (1976) 423 U.S. 411 (Watson); People v. Tillery (1979) 99 Cal.App.3d 975, 979-980), and that a suspect may not thwart an otherwise proper public arrest by retreating into a private place (United States v. Santana (1976) 427 U.S. 38, 43 (Santana)).In Santana, the defendant was standing in the doorway of her house when the police arrived to arrest her, without a warrant, in connection with a drug sale that had just occurred. (Id. at p.40.) As the police approached and announced their presence, the defendant retreated inside the house and the officers followed through the open door, catching the defendant in the vestibule. (Ibid.) She was holding incriminating evidence, which she moved to suppress. (Id. at p. 41.) The Supreme Court found that even though the defendant was in the doorway of her home, she was exposed to public view as if she was standing outside and, thus, was in a public place. (Id. at p. 42.) The court then considered whether her act of retreating into her house could thwart an otherwise proper arrest[,] and found that it could not; a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. (Id. at pp. 42-43.)

This case fits squarely within Santana. There is no dispute the officers had probable cause to arrest Anderson and that she was standing on the public walkway when Fanucchi initiated her arrest. After Fanucchi, in full uniform, identified himself as a police officer, Anderson attempted to elude arrest by returning to the apartment. Fanucchis entry was necessary to complete the arrest and to prevent Andersons escape. The fact that the arrest was initiated just outside the doorway of the apartment is immaterial. In reaching its conclusion, the Santana court confirmed that although hot pursuit implies some sort of chase, it need not be an extended hue and cry in and about the public streets. (Santana, supra, 427 U.S. at pp. 42-43,internal quotations omitted.) Additionally, [t]he fact that the pursuit [] ended almost as soon as it began d[oes] not render it any the less a hot pursuit sufficient to justify the warrantless entry[.] (Id. at p. 43.)

The other officers followed to effectuate the arrest and to ensure Fanucchis safety while he struggled with the uncooperative suspect. We see nothing in Santana that suggests that a warrantless entry in pursuit of a fleeing felon is limited to the one officer who first approached the suspect. The officers reasonable concern for Fanucchis safety in the apartment provides additional justification for the warrantless entry. Anderson was continuing to resist arrest and was known to be involved in narcotics and to associate with parolees, at least one person was in the immediate vicinity of the apartment and could potentially come to her aid, and the apartment was cluttered, poorly lit and unfamiliar to the officers.

Defendant cites People v. Smith (1972) 7 Cal.3d 282 (Smith) and People v. Timms (1986) 179 Cal.App.3d 86 (Timms) as examples of cases in which exigent circumstances are lacking, and contends that the facts in this case are even less compelling. Defendants argument is unavailing. Both cases involve circumstances relating to the well-being of third parties, and neither involves an immediate threat to officer safety or the pursuit of a fleeing felon. In Smith, the officer entered a locked apartment to locate the mother of a 6‑year-old girl left alone. The court found insufficient evidence of an emergency situation and no justification for the warrantless entry. (Id. at pp. 285-287.) Among other things, the appellate court stressed that the officer had little or no reason to believe that the mother was in the residence, and no reason to believe she was in need of police assistance. (Id. at pp. 286-287.) Timms is even less relevant to the case at hand. In that case, the court found that police summoned to a residence due to a homicide were justified in making a prompt warrantless search of the premises to see if there were any other victims or suspects on the premises, but not authorized to conduct a general exploratory search after the defendant was taken to the police station. (Timms, supra, 179 Cal.App.3d at p. 92.) In so holding, the court noted generally that emergency calls do not imply consent to unlimited, warrantless searches. (Ibid.) This case involves the imminent threat posed to an officer pulled into an apartment by an uncooperative arrestee, and not an unlimited search prompted by an emergency call or an unsubstantiated concern for a third partys welfare.

Defendant next contends that the officers own conduct created the emergency and, therefore, the People cannot rely on exigent circumstances to justify the entry. Just as exigent circumstances are an exception to the warrant requirement, a police-manufactured exigency is an exception to an exception. (United States v. Rico (5th Cir. 1995) 51 F.3d 495, 502 (Rico).) To invoke this exception, the police need not have acted in bad faith; rather, the court considers the reasonableness and propriety of the investigative tactics that generated the exigency. (Id. at p. 502, internal quotations omitted.) We find the officers actions in this case reasonable, and reject defendants argument.

A review of defendants authorities reveals substantial differences between this case and those in which courts have found that the police created the emergency. In People v. Larry A. (1984) 154 Cal.App.3d 929, 932-933, the police arrested the defendant shortly after he was seen stealing televisions and taking them to a residence. An officer then went to the residence and entered over the objection and resistance of others in the house. (Ibid.) The court held that the officers entry was not justified by the possible destruction of evidence. (Id. at pp. 935-936.) Among other things, the court noted that any danger of destruction of evidence was created by the police, who prematurely attempted to enter the house and alerted the occupants to the presence of incriminating evidence. (Id. at p. 937.) In People v. Rodriguez (1981) 123 Cal.App.3d 269, 271, police had an apartment under surveillance for suspected drug activity. At a nearby gas station, the officers arrested one individual, who had recently exited the apartment, on drug possession charges. (Ibid.) An hour or two later, after continuing surveillance, officers approached the apartment and demanded that the door be opened. (Id. at pp. 271-272.) When the occupants did not comply and began to run, the officers broke open the screen door and entered the apartment. (Id. at p. 272.) The court held that the police had created the exigency; the earlier arrest did not jeopardize the officers surveillance and investigation of the apartment and, thus, the officers could have obtained a warrant. (Ibid.)

Here, there was little time between the confidential tip regarding Andersons presence at the apartment (which was not Andersons residence) and the arrest, and there was a substantial risk that Anderson would flee the location. The decision to arrest Anderson, in public, once she exited the apartment was reasonable under these circumstances. Moreover, the officers entry was the direct result of Andersons attempt to resist and evade a legitimate, public arrest, and not the result of the officers haste to secure or obtain evidence without a warrant.

People v. Bellizzi (1995) 34 Cal.App.4th 1849, which defendant cites, also is distinguishable. In that case, the court concluded that [t]he warrantless entry into appellants hotel room cannot be justified on the basis of exigency, because any exigency here was created by the law enforcement officer who burst into appellants room in plain clothes with gun drawn, in what objectively appeared to be a robbery or other attack on appellant. When appellant responded fearfully and by retreating, this reaction to an apparent robbery attempt, objectively viewed, cannot justify the warrantless entry. (Id. at p. 1852.) In this case, Anderson was outside the apartment when approached, all officers were in full uniform, there is no evidence guns were drawn at the time of her arrest, and Fanucchi immediately identified himself as a police officer. Andersons return to the apartment was a deliberate attempt to evade arrest, and the officers are not responsible for that decision.

Defendant nevertheless argues that the officers should have waited to arrest Anderson until she was further beyond the apartment. He contends that by failing to do so, the officers created any exigency. The court in Rico, supra, 51 F.3d 495 rejected a similar argument. In Rico, an agent conducting surveillance of the defendants residence in connection with a suspected drug ring believed one man was preparing to transport narcotics. (Id. at p. 499.) One agent moved to arrest him while others surrounded the house with guns drawn. (Ibid.) They knocked on a door which swung open and, seeing occupants believed to be armed and dangerous, entered the house to conduct a protective sweep. (Ibid.) The court agreed that exigent circumstances justified the warrantless entry, but further considered whether the agents created the exigency. (Id. at pp. 501-502.) The court concluded there was insufficient time to get a warrant, the agents belief that the suspect was about to leave with narcotics was reasonable, and, thus, the agents did not manufacture the exigency. (Id. at pp. 503‑504.) In so holding, the court acknowledged that the agents could have waited for the vehicle to leave and then initiated an arrest, but stated it would not second-guess law enforcement tactics as long as those tactics are neither unreasonable nor employed with specific intent to create an emergency simply to circumvent the warrant requirement. (Id. at p. 505.) The court explained: [T]he fact that the exigency may have been foreseeable does not, by itself, control the legality of a subsequent warrantless search triggered by that exigency. The important point . . . is that the exigency while perhaps not unexpected, had not been created by the government. (Id. at p. 506, footnotes and internal quotations omitted.)

We find the Rico courts analysis compelling and conclude that although Andersons flight into the apartment may not have been unexpected, the necessity of entering the apartment to secure the suspect and to ensure officer safety was not created by the officers. The officers decision to arrest Anderson after she exited the apartment was not unreasonable; the officers had received the tip regarding her whereabouts only a short time before the arrest and did not confirm her presence in the apartment until just before she left the apartment. Additionally, there is no evidence that the decision to arrest her as she exited the apartment was made with the intent to create an emergency that would allow entry without a warrant.

We conclude that the existence of exigent circumstances justified the officers warrantless entry.

B.                Protective Sweep

Defendant further argues that the officers protective sweep of the apartment, including the master bedroom and bathroom, was unjustified. We find ample support for the officers protective sweep of the premises.

One recognized exigent circumstance that will support the warrantless entry of a homethe risk of danger to police or others on the scenealso provides the justification for a protective sweep of a residence under the high courts decision in [Maryland v. Buie (1990) 494 U.S. 325 (Buie)]. (People v. Celis (2004) 33 Cal.4th 667, 676-677 (Celis).) A protective sweep is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (Buie, supra, 494 U.S. 325, 327.) Officers may, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, . . . there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (Id. at p. 334; Celis, supra, 33 Cal.4th at p. 678 [A protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person.].)

The officers actions in this case fall within the parameters set forth in Buie. The protective sweep was undertaken in connection with the officers arrest of Anderson and their entry to ensure the safety of the officer, which we have already determined was justified. Once inside the apartment, its size, low-lighting and cluttered appearance made it necessary to conduct a cursory inspection of those areas adjacent to the main living room. Moreover, the officers were aware that Anderson had previously engaged in high risk behavior to avoid arrest, was involved with narcotics, and associated with at least one parolee. A protective sweep addressed the interest of the officers in taking steps to assure themselves that the apartment was not harboring other persons who [we]re dangerous and who could unexpectedly launch an attack. (Buie, supra, 494 U.S. at p. 333.) It was reasonable for Henderson to continue the sweep into the hallway, blocked by two queen-size mattresses, and into the master bedroomplaces from which an attack could be immediately launched in the small and obstructed apartment. Henderson noted that the door to the master bedroom was closed and the light on and he reasonably concluded the room was occupied. In short, the available facts contributed to a reasonable concern for officer safety throughout the apartment. As the United States Supreme Court observed, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversarys turf. An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings. (Id. at p. 333.)

We find this case distinguishable from Celis, in which the officers detained defendant in his backyard and then entered defendants house to determine whether there was anyone inside who might endanger their safety. (Celis, supra, 33 Cal.4th at p. 671.) The sweep was not undertaken in areas immediately adjoining the place of arrest, and the court found no facts supporting a reasonable suspicion that dangerous persons were present. (Id. at p. 679.) Unlike in Celis, the officers in this case entered the house not to conduct a protective sweep, but to prevent Andersons flight, complete the arrest, and ensure Fanucchis safety. Once inside, the need for a sweep of the adjacent areas of the apartment was apparent.

Defendant stresses that in People v. Maier (1991) 226 Cal.App.3d 1670 the officers had additional evidence supporting a reasonable suspicion regarding the presence of dangerous individuals. In that case, the court found entry to conduct a protective sweep justified because police knew the defendant pursued activities with accomplices in a dangerous manner and therefore reasonably believed that dangerous persons may be present in the house. (Id. at 1675.) As Maier does not hold that this is the bare minimum of evidence required to support a protective sweep, we question the significance of this distinction. We also note that the officers in Maier invoked the protective sweep rationale to justify entry of the residence, in addition to a search within the residence. (See id. at p. 1674.) Here, the arrest occurred inside the apartment and we determined that the exigent circumstances doctrine justified the officers entry.

In short, we conclude the protective sweep doctrine applies in this case.

C.                Consent

Defendant contends that his consent to search the master bedroom and bathroom was invalid as it was not freely and voluntarily given. Again, we disagree.[1]

Consent is a well-settled exception to the warrant requirement. (People v. Oldham (2000) 81 Cal.App.4th 1, 9.) To rely on consent, the prosecution must prove by a preponderance of the evidence that the consent was freely and voluntarily given and not a mere submission to an express or implied assertion of authority. (People v. James (1977) 19 Cal.3d 99, 106 & fn. 4; see also Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.)

Defendant argues that consent that is secured immediately after illegal entry is inextricably bound up with the illegal conduct and cannot be segregated therefrom. As we have rejected defendants claims regarding the illegality of the officers entry, this claim is without merit.

Additionally, the fact that defendant was handcuffed when his consent was sought does not demonstrate that his consent to a search was involuntary. (People v. Ratliff (1986) 41 Cal.3d 675, 686.) It is but one factor the court should consider in determining the voluntariness of a defendants consent. (Ibid.) Defendant was handcuffed for only 10 to 15 minutes prior to granting consent to search, and the officers explained the reason for their presence and unambiguously requested permission to search the master bedroom and bathroom. Defendant was not under arrest at the time he gave consent and there is no indication he was threatened or forced into acquiescing. Even if, as Eagen testified, defendant was unsure of his right to refuse consent, the officers had no duty to inform him. (See United States v. Drayton (2002) 536 U.S. 194, 206 (Drayton).) While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. . . . Instead, the Court has repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning. (Id. at pp. 206-207, internal quotations omitted; see also People v. Monterroso (2004) 34 Cal.4th 743, 758 (Monterroso).) In this case, the request for permission itself carried the implication it could be refused. (See Drayton, supra, 536 U.S. at p. 207; Monterroso, supra, 34 Cal.4that p. 758.) We therefore conclude, after considering the totality of the circumstances, that the People met their burden of proof regarding the validity of defendants consent.

In sum, the officers entry, search and seizure of the incriminating evidence are supported by established exceptions to the warrant requirement, including the exigent circumstances doctrine, protective sweep, and consent. We therefore find no error in the courts denial of defendants motion to suppress.

                                                                                                                                                              III.         Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] Defendant also argues generally that the officers should have obtained a search warrant. Because we find that the entry, search and seizures were justified by established exceptions to the warrant requirement, we reject this contention.