P. v. >Rogers>



















Filed 4/22/13 P. v. Rogers CA1/4

>

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOUR




>

THE PEOPLE, Plaintiff and Respondent, v. SANTONIO DESHWAN ROGERS, Defendant and Appellant.

A132660 (Solano County Super. Ct. No. VCR208349)

Santonio
Deshwan Rogers appeals from a judgment upon a jury verdict finding him guilty
of receiving stolen property (Pen.
Code,href="#_ftn1" name="_ftnref1" title="">[1]
496, subd. (a)) and first degree residential
burglary (§ 459). He contends
that the trial court erred in denying his motion
to suppress evidence. We affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

Defendant was
charged with receiving stolen property, five counts of second degree robbery
with an enhancement for personal use of a firearm, and one count of first
degree residential burglary. Prior to
trial, defendant moved to suppress evidence of a gun and a stolen credit card
found in a patdown search. The court
denied the motion, finding that the officer’s conduct was justified for officer
safety.

The
evidence presented to the jury showed the following:

>A.
Receiving Stolen Property

Veera
De La Mater testified that at approximately 11:30
p.m. on July 12, 2010,
she was robbed at gunpoint in front of her house in Vallejo
by two men. She was not able to see the
man with the gun because he stayed behind her and pressed a silver gun between
her eyes. The other man was
African-American and he grabbed her purse.
He took her wallet, GPS device, keys, and cell phone. Her wallet contained several credit
cards. The police found a credit card in
De La Mater’s name in defendant’s wallet.


B. Burglary of >410
Goheen Circle

Maria
Rapolla testified that on July 23,
2010, she lived with her family at 410
Goheen Circle in Vallejo. She left the house about 9 a.m. that morning and returned at about 12:30 p.m., because her husband called her to
tell her the house had been burglarized.
She found that her house had been ransacked. In examining the doors and windows of her
home, she observed that the door that leads from the garage to the laundry room
was broken, and that two window screens to the laundry room and kitchen windows
had been removed. Numerous items were
missing from the home including a 32-inch television, a digital camera, a video
camera, an X-Box and several pieces of jewelry.
Rapolla identified several pieces of jewelry that were found in
defendant’s bedroom as items taken from her home during the burglary. In investigating the burglary, the police
collected fingerprints from the kitchen window.
Two of the fingerprints were later found to match defendant’s
prints.

C. August 5, 2010> Robbery

At
about 1:00 a.m. on August 5, 2010, Conner Patterson was
15 years old and was hanging out with Cooper Wright, Angel Mora, Aman Dhindsa,
and Ramon Castellblanch on Tennessee Street
near some apartment complexes in Vallejo. As they approached White
Pine Drive between two apartment complexes, they
heard voices coming from behind them.
Two men ran toward them and yelled, “Get down.” Patterson thought it was a joke and kept
walking, but then one of his friends said, “He has a gun,” so Patterson and his
friends got down on the ground. The two
men approached them with their guns drawn and ordered them to empty their pockets. Patterson identified defendant as the robber
both in court and in a photo lineup. He
described defendant as African-American, about 20 years old, tall, average
build, and wearing a black sweatshirt with the hood pulled up and sweatpants. Patterson’s friend, Aman Dhindsa, also
identified defendant as the robber in court and in a photo lineup. Wright and Mora were unable to make an
identification. The boys described the
gun as a chrome or silver revolver. The
items taken from the boys included iPods, cell phones, wallets, a car key and
marijuana.

D. The Defense

Defendant
testified and denied participating in the August 5, 2010 robbery.
He said he was staying with an aunt in Fairfield
during the time the robbery was committed.
He also denied participation in the robbery of De La Mater. As to the burglary, he acknowledged being at
Rapolla’s home on Goheen Circle,
testifying that he went to the house with his friend, Derek Gadies, to help him
collect a debt. He may have touched a
window while he was there, but he did not pull off any of the window screens or
go inside the house.

E. The Search

On
August 11, 2010, Officer
Dustin Joseph made a routine traffic stop of Michael Addson, defendant’s
brother. Addson was on probation and
subject to a search and seizure condition so Joseph decided to conduct a search
of Addson’s residence at 1801 Vervais in Vallejo. Joseph was informed that Addson and Kevin
Ward were connected with a string of several armed robberies throughout the
City of Vallejo.

When
he arrived at the Vervais Street
residence, he knocked and announced he was there to conduct a probation search
and was let into the house. Joseph was
in his police uniform. Upon entering the
house, he immediately noticed that defendant was in the kitchen walking towards
him. When defendant saw Joseph, he
turned around as if to flee and walked away very quickly. Joseph ordered him to stop and to put his
hands on top of his head. He then
conducted a patsearch of defendant for officer safety.href="#_ftn2" name="_ftnref2" title="">[2] He considered the fact that Addson and Ward
were suspects in a string of armed robberies.
Joseph also considered that defendant “closely matched the description
of the second subject that was supposed to be with Ward. He was tall, slender, [and] wearing all dark
clothing.”

Defendant
complied with the patsearch. Defendant
was wearing a pair of jeans over a pair of athletic shorts. When Joseph patted the outside of defendant’s
pants, he felt a gun in the right pocket of the shorts. Joseph removed the gun, a silver
revolver. Joseph detained defendant
because he was concerned that defendant might have another weapon.
Joseph found defendant’s wallet and removed his identification. He also found a credit card in the name of
Veera De La Mater, one of the victims of the robbery he was investigating. The other officers then conducted a
protective sweep of the residence to find out who was in the house and found a
box of .38 caliber ammunition along with a few spent bullet casings in the
closet of a back bedroom.

The
officers then “froze” the house until a search warrant could be obtained. During the search pursuant to the warrant,
the police found other evidence tying defendant to other robberies.

The
trial court denied the motion to suppress evidence, finding that the patsearch
of defendant was justified on the basis of officer safety, because the police
were going to have to detain defendant and make sure he did not pose a risk to
them while they conducted the probation search.
The court further found that the seizure of the wallet was a product of
inevitable discovery.

>DISCUSSION

A. Standard of
Review

The
principles governing appellate review of a trial court’s denial of a motion to suppress evidence
are well established. “We defer to the
trial court’s factual findings, express or implied, where supported by href="http://www.mcmillanlaw.com/">substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable
under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People
v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)

>B. The Legality of the
Patdown Search

The leading href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court case on the legality of patdown searches is >Terry v. Ohio (1967) 392 U.S. 1 (Terry). A >Terry search is limited to “an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.” (Id.
at p. 29.) “The officer need not be
absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” (Id.
at p. 27.) In justifying a
patsearch, an officer “must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” (>Id. at p. 21.) An officer may not rely on an “inchoate and
unparticularized suspicion or ‘hunch’ ” to justify a patsearch. (Id.
at p. 27.) The Terry court noted that although each of a series of acts may appear
“innocent in itself,” taken together they may “[warrant] further
investigation.” (Id. at p. 22; see
also People v. Souza (1994) 9 Cal.4th
224, 233 [“ ‘[t]he possibility
of an innocent explanation does not deprive the officer of the capacity to
entertain a reasonable susname="term4_2">picion of criminal conduct’ ”].) Courts should consider the “ ‘ “totality of
the circumstances—the whole picture” ’ ” and examine each case on the facts to
establish whether a challenged detention was objectively reasonable. (People
v. Ramirez (1996) 41 Cal.App.4th 1608, 1614.)

Relying
on Ybarra v. Illinois (1979) 444 U.S.
85 (Ybarra) and In re Joshua J. (2005) 129 Cal.App.4th 359 (Joshua J.), defendant argues that the police had no justification
to conduct the patdown search here. But
neither Ybarra or >Joshua J. involved the situation where
the police were involved in conducting a probation search at a private
residence. Here, the police entered to
search Addson’s residence where he lived with defendant and other family
members. Because Addson was on probation
and subject to a probation search condition, the police were at the residence
with Addson’s consent, and were authorized briefly to detain defendant for the
purpose of identifying him and protecting the safety of those present during
the search. (Glaser, supra, 11 Cal.4th at p. 374; People v. Bravo (1987) 43 Cal.3d 600, 608 [probationer has given
advance consent to a warrantless search and has waived his Fourth Amendment
rights in exchange for the opportunity to avoid service of a state prison
term]; see >People v. Robles (2000) 23 Cal.4th 789,
798–799.)

As
explained in Glaser, supra, the
police may detain persons found in a private residence during the course of a
search under a warrant. (>Glaser, supra, 11 Cal.4th at
p. 374.) “When, in the course of
initiating a search under [a] warrant of a private residence for illegal drugs
or related items, police officers encounter on the premises a person whose
identity and connection to the premises are unknown and cannot immediately be
determined without detaining the person, the officers may constitutionally
detain him or her for the period of time required and in the manner necessary
to make those determinations and to protect the safety of all present during
the detention. If the person is
determined to be an occupant of the home to be searched, he or she may be
detained . . . for the duration of the search.” (Ibid.) The courts have recognized that a probation
search is akin to a search pursuant to a search warrant. (See People
v. Smith (2010) 190 Cal.App.4th 572, 579 [officer safety analysis applies
equally to a probation or consent search]; People
v. Rios (2011) 193 Cal.App.4th 584, 594–595 [although officers did not have
a search warrant, they were not acting randomly but were conducting a valid
probation search]; see, also People v.
Robles, supra, 23 Cal.4th at p. 799 [cohabitants have no cause to
complain of searches that are reasonably related to the purposes of
probation].) “ ‘Since the
probationer waived his Fourth Amendment rights, the officers were properly able
to enter the premises to search it without a warrant’ [Citation.]
Once properly on the premises, the officers could briefly detain others
present to determine their identity.” (>Rios, supra, 193 Cal.App.4th at pp.
594–595.)

>Ybarra and Joshua J. are therefore inapposite as they did not involve searches
of private residences where the risk to the police is “particularly acute”
because the police are on the adversary’s “ ‘turf.’ ” (Glaser,
supra, 11 Cal.4th at p.368.)
“ ‘[T]he likelihood that the occupants [of a residence] are armed
or have ready accessibility to hidden weapons is conspicuously greater than in
cases where, as in Ybarra, the public
freely enters premises where legal business is transacted.’ [Citation.]” (Ibid.) In Ybarra,
the police were executing a search warrant of a tavern and its bartender who
was suspected of narcotics possession. (>Ybarra, supra, 444 U.S.> at p. 88.) When the officers entered the tavern, they
searched all of the patrons, finding heroin on the defendant. The United States Supreme Court held that the
search was unlawful because the police had no probable cause to search the
patrons of the tavern where they had no reason to believe that the patrons were
involved in crime or presented a threat to the officers. (Id. at
pp. 92–93.)

Similarly
in Joshua J., supra, 129 Cal.App.4th
359, the police conducted a patdown search of a juvenile in a public area. There, the police mistakenly thought the
defendant resembled an adult person wanted on a felony warrant, and he was seen
making a detour through an apartment complex in a high-crime area. (Id. at
p. 365.) The court held that these facts
failed to justify the search; nor was the search justified by the fact that the
police later ascertained he was subject to a probation search condition. (Ibid.) The court held that the reasonableness of the
search must be determined based on the circumstances known to the officer at
the time the search was conducted. (>Ibid.)

Defendant
cites People v. Sandoval (2008) 163
Cal.App.4th 205, which also involved a probation search; but it is
distinguishable on its facts. There, the
police conducted a probation search of a residence where they believed
narcotics were being sold. (>Id. at p. 208.) When they arrived to conduct the search, they
found the defendant, who was known to one of the officers for previous drug
arrests, sitting on the steps of the residence smoking a cigarette. (Ibid.) The police conducted a patdown search and
found a stun gun, a fixed-blade knife, and methamphetamine. (>Id. at p. 209.) The court held that the patdown search was
unlawful because the officer had no reason to believe defendant was armed and
did not suspect that the defendant was engaged in any criminal activity. (Id. at
p. 212.)

Here,
by contrast, Officer Joseph, who was conducting a probation search of Addson’s
residence, was justified in detaining defendant for purposes of officer safety
and to determine defendant’s identity.
Defendant’s furtive movements upon seeing the police justified the
patdown search for officer safety—Joseph testified that when defendant saw him,
he immediately turned around as if to flee and walked away very quickly. Joseph, who had announced his presence prior
to being let into the home by a resident, was investigating a string of armed
robberies and was accompanied by five other officers. He understandably wished to secure the
premises for the safety of his team prior to conducting the probation
search. Defendant’s abrupt movement upon
noticing the police provided a reasonable suspicion to conduct a patsearch for
officer safety.href="#_ftn3" name="_ftnref3"
title="">[3]

As
the United States Supreme Court explained in Illinois v. Wardlow (2000) 528 U.S. 119, 124, “nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion.
[Citations.] Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such
. . . . [T]he determination of reasonable suspicion must be
based on commonsense judgments and inferences about human behavior.” (Id. at
pp. 124–125.) While an individual has
the right to ignore the police and go about his business when an officer lacks
probable cause (Florida v. Royer
(1983) 460 U.S. 491, 498), “unprovoked flight is simply not a mere refusal to
cooperate. Flight, by its very nature,
is not ‘going about one’s business’. . . .” (Wardlow,
supra, 528 U.S. at p. 125.) Here, defendant’s attempt to flee and the
totality of the circumstances justified the patdown search.

Defendant
also argues that Joseph was not justified in searching his wallet and that
evidence of De La Mater’s credit card must be suppressed. We disagree.

As we have explained, Joseph was justified in
detaining defendant to determine his identity and connection to the
premises. (Glaser, supra, 11 Cal.4th
at p. 374.) Even if the police
exceeded the scope of the permissible Terry
search by looking through the contents of defendant’s wallet, the court
properly denied the motion to suppress the credit card evidence on the theory
of inevitable discovery. The doctrine of inevitable
discovery provides that illegally seized evidence may be used where it would
have been discovered by the police through lawful means. (People v. Robles, supra, 23 Cal.4th at p. 800.)
“The purpose of the inevitable discovery
rule is to block setting aside convictions that would have been obtained
without police misconduct.” (Nix v. Williams (1984) 467 U.S. 431,
443, fn. 4.)

Here, the credit card evidence would
have been inevitably discovered during a search of defendant incident to his
arrest. (See, e.g., People v. Clark
(1992) 3 Cal.4th 41, 143 [examination of contents of wallet did not exceed
scope of proper booking search].) “Where
the formal arrest follow[s] quickly on the heels of the challenged name="SR;1739">search of [defendant’s] person, we do not believe it
particularly important that the search preceded the
arrest rather than vice versa.” (Rawlings
v. Kentucky (1980) 448 U.S. 98, 111.)

>DISPOSITION

The judgment is affirmed.







_________________________

Rivera,
J.





We concur:





_________________________

Ruvolo, P.J.





_________________________

Humes, J.