P. v. Moorer
Filed 2/15/13 P. v. Moorer CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
TIFFANY DANIELL MOORER,
Defendant
and Appellant.
B240980
(Los
Angeles County
Super. Ct.
No. TA122455)
APPEAL from a judgment of the Superior
Court of
County,
Ronald
V. Skyers, Judge. Affirmed.
Richard L. Fitzer, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, and Victoria B. Wilson, Erika D. Jackson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Tiffany Daniell Moorer appeals from the judgment
entered after her plea of no contest to possession
of a controlled substance (Health & Saf. Code, § 11350, subd. (a)),
following the denial of a suppression motion (Pen. Code, § 1538.5). The court sentenced her to prison for three
years, suspended execution of sentence, and placed her on formal probation for
three years. We affirm the judgment.
The record reflects that on March 13, 2012,
appellant possessed 2.46 grams net weight of a solid substance containing
cocaine base in Los Angeles County.
Appellant claims the trial court erroneously denied her
Penal Code section 1538.5 suppression motion.
The
Trial Court Properly Denied Appellant’s Suppression Motion.
1.
a.
Viewed in accordance with
the usual rules on appeal (People v.
Leyba (1981) 29 Cal.3d 591, 596-597), the evidence presented at the
hearing on appellant’s Penal Code section 1538.5 suppression motion established
as follows. On March 13, 2012, Los Angeles County Sheriff’s Deputy Jeff Lohmann,
who had been a deputy for almost 12 years, was by himself on patrol. He testified as follows. Lohmann received a call and updates
indicating several Black men with guns had been just south of 910 North
Oleander and may have entered the house at that address. The call was from someone located one house
south of the above address. A handling
unit asked Lohmann and other deputies to check for suspects inside the house at
910 North Oleander.
Lohmann
went to the house at 910 North Oleander and did “call outs.†Lohmann testified three or four men
exited. They did not have weapons.
Lohmann, who was in uniform,
believed someone with a gun might have entered the house. He entered it to conduct a protective
sweep. After he entered, Lohmann and
appellant saw each other. Lohmann was
about 10 feet from appellant, who had exited a bedroom. Appellant was placing something in her bra.
Lohmann ordered appellant at
gunpoint to stop and to keep her hands in plain view. However, she kept fidgeting with what she was
putting in her bra and appeared to be concealing something in her bra. Lohmann could not see the object and did not
know what it was. He detained her.
Lohmann escorted appellant
to Los Angeles County Sheriff’s Deputy Terry Johnson, told Johnson what he had
observed, and asked her to search appellant carefully because appellant had put
something in her bra. No one found a gun
on appellant.
Johnson, who had been a
deputy for six years, testified as follows.
About 2:00 p.m. on March 13, 2012, she received a call regarding
about seven to eight persons with a gun.
The location was 910 North Oleander in Compton. Johnson set up a perimeter around the house
and Lohmann entered the house.
Johnson saw appellant
exiting the house, apparently being escorted by Lohmann. Lohmann told Johnson that Lohmann saw
appellant rummaging through one of the bedrooms, and Lohmann mentioned
“possible narcotics possession†to Johnson.
Because appellant had failed to exit the residence on her own, Lohmann
asked Johnson to conduct a patdown search of appellant for weapons.
Johnson conducted a patdown
search for weapons and felt a hard bulge in the right side of appellant’s
bra. The bulge felt like a small plastic
bag containing a rock-like narcotic substance.
Johnson had felt such bulges 50 to 70 times during prior narcotics
arrests.
Johnson asked appellant what the object was. Appellant replied, “ ‘It was just laying
there so I picked it up.’ †Johnson
asked if she could recover it. Appellant
replied yes. Johnson recovered from
appellant’s bra a plastic baggy containing an off-white rock-like substance
resembling rock cocaine.
During cross-examination,
Johnson testified she routinely conducted patdown searches, and nothing else
indicated appellant had a weapon. When
Johnson felt the rock-like object, she knew what it was and it could not have
been anything else. Johnson asked appellant
what it was because Johnson always asked that question.
During redirect examination,
the prosecutor asked if Johnson had any information appellant might be
armed. Johnson replied, “[b]aggy
clothing.†Johnson also testified
Lohmann told Johnson, “I think [appellant] stuffed dope in her bra.†The prosecutor asked if that was why Johnson
searched appellant, and Johnson replied the main reason she searched appellant
was for weapons. We will present
additional facts below where appropriate.
b. Appellant’s
Suppression Motion and the Court’s Ruling.
Appellant filed a Penal Code
section 1538.5 suppression motion. After
the presentation of the above evidence at the hearing on the motion, appellant
argued the deputies’ entry into the house, detention of appellant, and search
of appellant for weapons were unlawful.
Appellant also argued the fact she put something in her bra did not mean
deputies could search her for narcotics.
The prosecutor argued
appellant had no privacy interest in the house, the Harvey-Madden
name="_ftnref3" title="">[3] rule was inapplicable, and the issue was whether “Lohmann had seen
[appellant] doing something that would give rise to probable cause to search
[appellant] or to detain her for a possible weapons search and/or narcotics
search.†The prosecutor commented
Lohmann saw appellant exiting the room and stuffing something into her bra,
Lohmann told this to Johnson, and Lohmann told Johnson that appellant might be
concealing narcotics.
The prosecutor also argued
that based on what Lohmann told Johnson, Johnson frisked appellant’s outer
clothing, primarily for weapons. The
prosecutor discussed the evidence of what then happened and maintained that,
under the circumstances, Johnson had probable cause to search appellant’s bra
and retrieve narcotics.
The court indicated as
follows. The deputies had reason to
approach the house based on the broadcast that there were males with guns. There was no Harvey-Madden issue. The
deputies lawfully entered the house for weapons and public safety. Because Lohmann ordered appellant to put her
hands up and appellant continued her actions, the deputies had a right to
detain and search her. The court
initially had been concerned that “the fact of the search for weapons or some
other thing was not mentioned in the police report,†but testimony concerning the omitted matters ultimately
had been presented at the hearing. The
court denied appellant’s suppression motion.
2. Analysis.
Appellant claims as previously indicated. She argues the warrantless search of the
house was unlawful because it was not justified as a protective sweep or under
a public safety rationale, the People failed to comply with the
detained appellant and unlawfully conducted a patdown search of her, and those
unlawful actions rendered involuntary her later consent to the removal of the
object from her bra. We reject
appellant’s claim.
When reviewing the denial of a defendant’s Penal Code
section 1538.5 suppression motion, we defer to the trial court’s express and implied factual
findings to the extent they are supported by substantial evidence, and exercise
our independent judgment as to whether a search or seizure was reasonable under
the Fourth Amendment based on the facts so found. (People
v. Glaser (1995) 11 Cal.4th 354, 362.)
As to the alleged unlawful warrantless search of the
house, a defendant
has the burden of
demonstrating a privacy interest in the place searched. (People
v. Jenkins (2000) 22 Cal.4th 900, 972.)
Based on the pertinent facts in the record of the suppression hearing,
appellant was simply in the house. The
mere fact a person is inside premises, such as a house, does not give the
person a Fourth Amendment privacy
interest in the premises. (
225, 255 (Ayala);
169 Cal.App.3d 197, 201-203; Rakas
v. Illinois (1978) 439 U.S. 128, 142-143 [58 L.Ed.2d
387].) Appellant concedes in her
reply brief that “she has no standing to challenge the search of the house
itself, . . .â€
title="">[4] We accept the concession. Appellant has failed to demonstrate she had a
privacy interest in the house. She may
not challenge the search of the house.
It
follows there is no need to address the issues of whether the search of the
house was justified as a protective sweep or was justified under a public
safety rationale. Nor, in particular, is
there any need to address, with respect to any search of the house, the issues
of whether any protective sweep was lawfully based on a reasonable belief
someone inside posed a danger to deputies (see People v. Ledesma (2003)
106 Cal.App.4th 857, 863, 866), whether any entry under a public safety
rationale was lawfully based on a reasonable belief someone inside was in
distress and needed assistance (see People v. Ray (1999)
21 Cal.4th 464, 470), or whether the
People satisfied the Harvey-Madden
rule.
Moreover, notwithstanding appellant’s argument to the
contrary, her failure to demonstrate a privacy interest in the house precludes
her from complaining that the alleged violation of the constitutional rights of
another directly caused appellant’s detention and the frisk of her outer
clothing. (Cf. People v. Madrid (1992) 7 Cal.App.4th 1888, 1894-1896 (
In
this regard, appellant is really arguing that her detention and the outer frisk
of her clothing were fruit of the poisonous tree of the alleged unlawful search
of the house. However, “the general
principles of law on standing, as articulated by the high court, permit a
defendant to prevail on a ‘fruit of the poisonous tree’ claim only if he or she
has standing regarding the violation which constitutes the poisonous tree . . .
. [Citation.] Were we to accept defendant’s reasoning, we
would be compelled to ignore established precedent on the question of standing
and instead focus on defendant’s privacy interest in [the poisonous fruit]
rather than on her privacy interest in the [poisonous tree].†(Madrid,
supra, 7 Cal.App.4th at p.
1898.) In sum, the fact the alleged
unlawful search of the house, in which appellant lacked a privacy interest, may
have led to appellant’s detention and the frisk of her outer clothing is
irrelevant. (Cf. id. at pp. 1895-1898.)
Appellant’s
reliance on the fact that police who stop a vehicle seize the driver and any
passenger is misplaced. It is one thing
to acknowledge that when police stop a vehicle, the driver and any passenger
are seized for purposes of the Fourth
Amendment, in part because the stopping of the vehicle curtails the travel of
both occupants. (Brendlin v. California (2007) 551 U.S. 249, 256-257.) It is another thing to argue, as appellant
essentially does, that when police, allegedly, unlawfully search a house in
which a defendant lacks a privacy interest, and that search (i.e., entry into
the house) per se does not curtail the travel of anyone, that the defendant may
nonetheless challenge the search of the house because it impacts a
defendant inside the house. That is not
the law.
As to the alleged unlawful
detention of appellant, a detention is reasonable under the Fourth Amendment when the
detaining officer can point to specific articulable facts which, considered in
light of the totality of the circumstances, provide an objective manifestation
that the person detained may be involved in criminal activity. (People
v. Souza (1994) 9 Cal.4th 224, 231.)
Moreover, if an objectively reasonable basis for a detention exists,
whether an officer actually relies on that basis to detain, and the officer’s
subjective intent or motivation in detaining, are irrelevant. (Cf. People
v. Valencia (1993) 20 Cal.App.4th 906, 915-918.)
There was substantial evidence as follows. Lohmann received a call that there were men
with a gun, and this escalated to a call that there were men with guns. He arrived at 910 North Oleander and there were
in fact several men in the house. That
is, once deputies contained the house and called for people to exit, multiple
men exited. However, none of the men had
a weapon.
After Lohmann entered the house, he saw appellant. She was still in the house despite the facts
deputies had contained the house and repeatedly had ordered everyone to
exit. An objectively reasonable basis
then existed for Lohmann to detain appellant for willfully resisting, delaying,
or obstructing a peace officer in the discharge or attempted discharge of the
peace officer’s duties by refusing to comply with the deputies’ orders that
everyone exit. (Cf. Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 518;
981, 985-986.)
Moreover,
Lohmann ordered
appellant at gunpoint to keep her hands in plain view, but she ignored the
order, continued fidgeting with what she was putting in her bra, and appeared
to be concealing something there. An objectively reasonable basis then existed
for Lohmann to detain appellant for violating Penal Code section 148,
subdivision (a)(1) by refusing to comply with Lohmann’s order to keep her hands
in plain view. (Cf.
95 Cal.App.4th 1325, 1330-1331; Pen. Code, § 148, subd. (a)(1).) Lohmann lawfully detained appellant.
As
to the Harvey-Madden rule, appellant
argues the People failed to comply with it by failing to produce at the hearing
the caller or the dispatcher who received the alleged call. (See In
re Richard G. (2009) 173 Cal.App.4th 1252, 1256 (Richard G.).) We assume the
rule applies to detentions. (
However,
there was substantial evidence as follows.
The call allegedly originated with someone who was in the yard of the
residence just south of the residence at 910 North Oleander. The caller was anonymous but the location
from which the call had been placed had been identified and was thus
susceptible to verification. No evidence
was presented that no such caller existed or no such call had been made.
Lohmann
and Johnson were in separate vehicles.
Each received a call and went to 910 North Oleander. Lohmann also received a call from a handling
unit and received updates. Multiple
deputies received multiple calls in different units while they were proceeding to the scene. This is not then a case involving the concern
animating the Harvey-Madden rule,
i.e., a deputy falsely reporting a criminal offense, then acting on a
dispatcher’s broadcast pertaining to it.
Prior to the detention of appellant, Lohmann determined several men in
fact had been in the house but none had weapons, and appellant’s furtive
movements in connection with her bra after Lohmann ordered her to keep her
hands in plain view gave Lohmann reason to believe a gunman referred to in the
call had given a gun to appellant. The
fact the dispatcher received a call was thus corroborated.
“Where . . . the evidence
and the reasonable inferences flowing from it show that the police dispatcher
actually received a telephone report creating a reasonable suspicion of
criminal wrongdoing, it is not necessary to require strict compliance with the
‘Harvey-Madden’ rule.†(
1259.) In the present case, the trial court reasonably could have
concluded from the facts as they existed before Lohmann detained appellant that
the dispatcher actually received a call that created a reasonable suspicion of
wrongdoing. No Harvey-Madden error occurred.
(Cf. Richard G.,
1258-1260; People v. Gomez
(2004) 117 Cal.App.4th 531, 541 (Gomez).)
As
to the frisk of appellant’s outer clothing, an officer may conduct a reasonable
search for weapons when the officer has reason to believe a suspect is armed
and dangerous. The issue is whether a
reasonably prudent person in the totality of the circumstances would be
warranted in the belief that his or her safety was in danger. (People
v. Avila (1997) 58 Cal.App.4th
1069, 1074 (Avila).) When that standard
is satisfied, an officer may perform a frisk of the suspect’s outer clothing for
weapons. (People v. Mosher (1969) 1 Cal.3d 379, 394;
re H.M. (2008) 167
Cal.App.4th 136, 143.)
There was substantial
evidence that, before Johnson frisked appellant’s outer clothing, the following
occurred. Deputies had received a call
concerning men with a gun(s). The
handling unit indicated possible suspects may have entered the location, and
Lohmann received an update that several male Blacks had a gun just south of 910
North Oleander. Lohmann went to the
address, deputies contained the house, and repeatedly ordered everyone to
exit. Several males exited, but none had
guns.
Lohmann entered
the house and saw appellant. It appeared
to Lohmann that appellant was placing something in her bra. She ignored his order at gunpoint to keep her
hands in plain view, and she appeared to be concealing something in her
bra. Given all that previously had
occurred, Lohmann reasonably could have believed one or more of the gunman
referred to in the call had given the gun to appellant. Lohmann thus had reason to believe appellant
was armed and dangerous. Lohmann told
the above facts to Johnson and told her to search appellant carefully because
appellant had put something in her bra.
According to
Johnson, she received a call that there were seven to eight persons with a gun
at 910 North Oleander. At the location,
Lohmann told Johnson that appellant had been rummaging through one of the
bedrooms, and Lohmann mentioned possible narcotics possession. Appellant had failed to exit the house, so
Lohmann asked Johnson to conduct a patdown search of appellant for weapons, and
Johnson did so. We conclude based on the
collective knowledge of Lohmann and Johnson that Johnson lawfully frisked appellant’s
outer clothing. (Cf.
see Gomez, supra, 117 Cal.App.4th at p. 541.) We reject appellant’s argument that her consent to the
removal of the suspected cocaine was involuntary because deputies unlawfully
detained and searched her. No such
unlawful detention or unlawful search occurred.
We also reject appellant’s suggestion Johnson testified she routinely
conducted patdown searches absent reason to believe a defendant was armed and
dangerous; Johnson never so testified.
Finally, even if appellant did not consent to the
removal of the suspected cocaine, there was substantial evidence as
follows. Lohmann told Johnson that
appellant possibly possessed narcotics and that Lohmann thought appellant had
stuffed narcotics in her bra. Johnson
conducted a frisk of appellant’s outer clothing, felt a hard object, and, based
on many prior similar experiences, it was immediately apparent to Johnson that
the object was a baggy of suspected rock cocaine. Johnson testified she knew what the object
was, and it could not have been anything else.
We conclude under the
circumstances in this case, including the collective knowledge of Lohmann and
Johnson, that when Johnson felt the object, she had probable cause to believe
appellant possessed narcotics, and the search of appellant’s bra was justified
as a search incident to her arrest. (Cf.
Gomez, supra, 117 Cal.App.4th at
p. 538; People v. Dibb (1995) 37
Cal.App.4th 832, 835-837.) The trial
court properly denied appellant’s suppression motion.
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
name="_ftn1" title="">[1]
These facts are reflected in the
preliminary hearing transcript and probation report, neither of which was
admitted into evidence at the hearing on appellant’s Penal Code section 1538.5
suppression motion discussed post.
name="_ftn2" title="">[2]
During cross-examination,
Lohmann testified he did not write the police report, he reviewed it on the day
of the hearing, and he brought to the prosecutor’s attention that day that the
report omitted the fact appellant had put something in her bra.
