P. v. Sherwin
Filed 11/25/13 P. v. Sherwin CA1/4
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opinion has not been certified for publication or ordered published for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.
JUDAH
MALACHI SHERWIN ,
Defendant and Appellant.
A137075
(Sonoma
County
Super. Ct.
No. SCR600867)
I.
INTRODUCTION
Following
the denial of a motion to suppress
evidence (Pen. Code, § 1538.5)
Sherwin pled no contest to one count of possession of marijuana for sale, and
the prosecution moved to dismiss the remaining charge for transportation of
marijuana. On appeal, appellant challenges
the constitutionality of the use of a police canine to establish probable
cause, and the trial court’s finding of probable cause based on the results of the
canine’s “alert†on appellant’s storage unit.
We reject appellant’s challenges, and affirm.
II.
FACTS AND
PROCEDURAL HISTORY
At
about 6:15 p.m. on February 22, 2011, Sonoma County Deputy
Sheriff Terrence White (Deputy White), a canine handler, responded to a call
from the ABF shipping terminal on Dutton Avenue
in Santa Rosa regarding a
suspicious package. When Deputy White
arrived at the terminal, the shipping manager, Jerry Sciortino, told the deputy
that he was suspicious of a particular “U-Packâ€
packed by appellant. The shipping
manager told Deputy White that appellant had asked to use his own padlock, packed
the shipment in about five minutes, and was shipping the U-Pack from terminal
to terminal. The shipping manager explained
that he was suspicious because he could smell the odor of marijuana on
appellant’s person, and because five minutes is far short of the average
packing time for a U-Pack cube, which in his experience takes 30 minutes or
more to complete. Further, the shipping
manager explained to Deputy White that shipping a U-Pack from terminal to
terminal is unusual because U-Packs are typically dropped off at locations such
as residences. Based on this
information, Deputy White retrieved his narcotics detective canine partner,
Shadow, from his patrol car.
Shadow,
a Belgian Malinois dog, was dual-trained to locate narcotics and engage in
protection work. Shadow was trained to
locate five specific odors: heroin, cocaine, methamphetamine, marijuana, and
opium. In 2007, Shadow attended a
200-hour course with Deputy White in Southern California
with where Shadow was trained and qualified to detect those five
substances. Additionally, every year
Shadow is certified by a third party at the California Narcotics Canine
Association for proficiency. At the time
of the encounter in this case, Shadow was seven years old, and since the start
of Deputy White’s handling of Shadow, Shadow had accurately alerted Deputy
White to narcotics approximately several hundred times.
After
Deputy White retrieved Shadow from his patrol car, he, Shadow and Sciortino
went to the west side of the ABF shipping terminal where several U-Packs were
located. Deputy White testified that at
that time, he told Sciortino that he did not want Sciortino to identify which U-Pack
belonged to appellant. Instead, Deputy
White wanted to leave Shadow to do a “blind test†wherein he would search the
entire area for narcotics. Once Deputy
White gave Shadow the command to search, Shadow began sniffing the far west
side. Shadow did not indicate that
narcotics were present in the first U-Pack.
At
the second U-Pack, Shadow smelled the seam of the door, and then proceeded to
the right-hand side of the U-Pack.
Shadow then went towards the upper vent and laid down on the ground,
which is Shadow’s signal that he has located one of the odors he was trained to
detect. Deputy White confirmed that the
second U-Pack was the same one rented by appellant, and directed Sciortino to
move that U-Pack to a secured location pending issuance of a search warrant. Deputy White then prepared a request for a
search warrant for the U-Pack based on Shadow’s “alert†and his interview with
Sciortino. The warrant was issued, and
Deputy White gave the warrant to another detective to execute.
A
motion to suppress the evidence found as a result of the search was made by
appellant in the trial court. In
connection with that motion, appellant argued that a police canine alert to the
presence of an odor of controlled substances is not a reliable indicator of the
actual presence of a controlled substance, because of residual odors. For this reason appellant urged the trial
court to find that Shadow was “not well trained,†and thus, to conclude that
the search was invalid under the Fourth Amendment. The trial court disagreed, finding
696 (Place), to be dispositive, as it “justifies the use of narcotics detection
dogs.†The court then suspended
imposition of sentence, and placed appellant on three years formal probation
with conditions.
After
the denial of the motion to suppress, appellant pled no contest to one count of
violating Health and Safety Code section 11359, and the prosecution dismissed
the other count, an alleged violation of Health and Safety Code section 11360,
subdivision (a). The court then suspended
imposition of sentence and placed appellant on three years supervised, formal
probation with conditions.
III.
DISCUSSION
A. Standard of Review
In
reviewing a ruling on a motion to suppress evidence, to the extent a trial
court’s findings resolve questions of fact, they must be upheld on appeal if
supported by substantial evidence. (
339 (Mayberry).) The power to judge credibility, weigh
evidence, and draw factual inferences is vested in the trial court. (People
v. James (1977) 19 Cal.3d 99, 107.) However,
in reviewing the reasonableness of the challenged police conduct, such as
whether a search or seizure is reasonable under the Fourth Amendment, we
exercise our independent judgment. (
891.) “ ‘The reason is plain: “ ‘it
is the ultimate responsibility of the appellate court to measure the facts, as
found by the trier, against the constitutional standard of reasonableness.’ †’ [Citation.]â€
(People v. Stillwell (2011)
197 Cal.App.4th 996, 1004.)
B. Denial of the Motion to Suppress
Fourth Amendment and Police Canine Olfactory Alerts
The
Fourth Amendment to the United States
Constitution provides “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .†(U.S.
Const., 4th Amend.) This guarantee has
been incorporated into the Fourteenth Amendment and is applicable to the
states. (People v. Camacho (2000) 23 Cal.4th 824, 829-830.) The United States Supreme Court has
considered whether a sniff test implicates the protections of the Fourth
Amendment. In Place, the court concluded that a sniff test by a well-trained drug
detecting dog was “sui generis,â€
supra, 462 U.S. at p. 707,
original italics.) More recently, the court
noted that “the use of a well-trained narcotics-detection dog—one that ‘does
not expose noncontraband items that otherwise would remain hidden from public
view,’ . . . during a lawful traffic stop, generally does not
implicate legitimate privacy interests,†and therefore does not violate the
Fourth Amendment. (
405, 409.) Similarly, our Supreme Court
has concluded that defendants have no reasonable expectation of privacy in
odors emanating from their concealed contraband such that a sniff test is flatly
prohibited, even if there is no specific suspicion that narcotics are present. (Mayberry,
supra, 31 Cal.3d at p. 342 [in
the context of an airport luggage sniff test].)
Appellant
relies on the two-part test from Justice Harlan’s concurring opinion in Katz
States (1967) 389 U.S. 347, 360, to contend that the U-Pack in this
case carries a stronger expectation of privacy than luggage at a public airport,
or a vehicle during a traffic stop, which were the factual circumstances
involved in Place,
Appellant
errs in reading our highest court’s decisions so narrowly. While the sniff test in Place involved luggage, the court did not limit its analysis of sniff
tests only to that specific factual context.
(Place, supra, 462 U.S. at p. 707.)
The court reasoned broadly: “A ‘canine sniff’ . . . does not
expose noncontraband items that otherwise would remain hidden from public view,
as does, for example, an officer’s rummaging through the contents of the
luggage. Thus, the manner in which
information is obtained through this investigative technique is much less
intrusive than a typical search.†(
The
underlying rationale in Place rested
on the notion that, unlike a more traditional physical police search, sniff
tests disclose only the presence or absence of narcotics, contraband items,
without disclosure of other personal information about the contents of a closed
container. (Place, supra, 462 U.S. at
p. 707.) As noted by the
also ensures that the owner of property is not subjected to the embarrassment
and inconvenience entailed in less discriminate and more intrusive
investigative methods. [¶] . . .
We are aware of no other investigative procedure that is so limited in both the
manner in which the information is obtained and in the content of the
information revealed by the procedure.â€
(Ibid.)
Assuming
that appellant had a generalized expectation of privacy in the contents of his
U-Pack, appellant fails to show how a minimally intrusive sniff test used here—designed
to detect only illegal narcotics—undermines that expectation of privacy. The
States Supreme Court has clearly enunciated the principle that “any
interest in possessing contraband cannot be deemed ‘legitimate,’ and thus,
governmental conduct that only reveals
the possession of contraband ‘compromises no legitimate privacy interest.’ †(United
States v. Jacobsen (1984) 466 U.S. 109.)
Therefore, while a person may have a reasonable expectation of privacy
in a U-Pack with legally permissible contents, the same is not true for U-Packs
that are shown through a minimally intrusive dog sniff test to house narcotics
and contraband.
In
reaching this conclusion we note that the content of appellant’s U-Pack was never
exposed to the public. Rather, the
canine in this case—Shadow—stayed outside of the U-Pack at all times, and only
sniffed the seams of the door and air vent.
At no time did Deputy White go inside appellant’s U-Pack without a
warrant or permission. Accordingly, even
if appellant had an expectation of privacy in his U-Pack, given the limited
disclosure made by Shadow and the minimally intrusive nature of Shadow’s sniff
test, that sniff test did not constitute an improper search under the Fourth
Amendment.
As
he did below, appellant also argues that Shadow’s alert was not reliable as a
basis for probable cause because of Shadow’s inability to distinguish between
residual odors of illegal substances, versus illegal substances actually
present at the time of the search. This
same argument was made and rejected just this past term by the United States
Supreme Court in Florida v. Harris
(2013) ___ U.S. ___, 133 S.Ct. 1050, 1056-1057 (Harris). In
canine’s certification and performance in the field. (Id.
at p. 1054.) The trial court
disagreed, and found that the officer did have probable cause to search the
defendant’s truck. (Ibid.) On appeal, the
Florida Supreme Court reversed, holding that “ ‘[W]hen a dog alerts,’ . . .
‘the fact that the dog has been trained and certified is simply not enough to
establish probable cause.’ [Citation.]†(Id.
at p. 1055.)
The
United States Supreme Court granted certiorari, and on February 19, 2013, after appellant’s opening
brief was filed in this case, a unanimous court overturned the Florida Supreme
Court’s holding. The court opined that
the Florida Supreme Court’s requirement for assessing the reliability of a
drug-detection dog “flouted [the] established approach to determining probable
cause.†(Harris, supra, 133 S.Ct. at
p. 1056). In its ruling, the
Supreme Court specifically addressed the issue of dog alerts to residual odors
in footnote 2, explaining “The Florida Supreme Court treated a dog’s response
to residual odor as an error, referring to the ‘inability to distinguish
between [such] odors and actual drugs’ as a ‘facto[r] that call[s] into
question [the canine’s] reliability.
[Citation.]’ But that statement
reflects a misunderstanding. A detection
dog recognizes an odor, not a drug, and should alert whenever the scent is
present, even if the substance is gone (just as a police officer’s much
inferior nose detects the odor of marijuana for some time after a joint has
been smoked). In the usual case, the
mere chance that the substance might no longer be at the location does not
matter; a well-trained dog’s alert establishes a fair probability—all that is
required for probable cause—that either drugs or evidence of a drug crime (like
the precursor chemicals in Harris’s truck) will be found.†(Id.
at pp. 1056-1057, fn. 2.) Thus,
it is plain that this footnote answers and rejects appellant’s argument that
residual odors cause a false alert which precludes a finding of probable cause.
Answering
a more general proposition posed by appellant, the court in
well-trained dog’s sniff alert establishes a fair probability—all that is
required for probable cause—that either drugs or evidence of a drug crime . . .
will be found.†(Harris, supra, 133 S.Ct.
at pp. 1056-1057, fn. 2.) Such
language expresses the court’s view that a well-trained dog’s alert in and of
itself can establish probable cause, because it shows a “fair probability†that
narcotics are present. According to the
the narcotic substance is actually present when there is a positive sniff test. (Ibid.
[“In the usual case, the mere chance that the substance might no longer be at
the location does not matterâ€].) The
relevant consideration is whether a sniff test establishes a fair probability
that drugs or evidence of a drug crime are present, as some circumstances
surrounding a particular sniff test may undermine the case for probable
cause—such as an officer cuing the dog (consciously or not), or if the police
team was working under unfamiliar conditions.
(Id. at pp. 1057-1058.) Therefore, as the Harris court pointed out, it is important that the defendant be
afforded the opportunity to challenge the dog’s reliability, whether by
cross-examining the testifying officer or by introducing defendant’s own fact
or expert witnesses. (
In
the instant case, however, there is no indication or allegation that Deputy
White cued Shadow—indeed, Deputy White asked Shadow to search the general area
with multiple U-Packs, not solely the suspected U-Pack. Furthermore, there were no unfamiliar
conditions that would hinder Shadow’s ability to alert accurately. Although appellant contends that Deputy White
“provided no details about the course the dog had attended or what was involved
in his annual certifications,†the record provides ample evidence that Shadow
was fully trained, certified, and had the experience to support his sniff test
results. Deputy White not only testified
that Shadow attended a 200-hour training course in Southern
California in 2007, but also that each year Shadow has been
certified by the California Narcotics Canine Association for proficiency. Deputy White made clear that Shadow had been trained
to detect five specific narcotics odors.
At the time of the encounter in this case, Shadow was seven years old,
and since the start of Deputy White’s handling of Shadow, Shadow had accurately
alerted Deputy White to narcotics approximately several hundred times.
The
Supreme Court found that the 120-hour training of the canine in
regime similar to Shadow’s, which included certification from an outside
company, ample work with a police trainer, and a history of accurate positive
alerts. (Harris, supra, 133 S.Ct.
at p. 1058.) Shadow’s training and
experience proven at the suppression hearing through the testimony of Deputy
White clearly exceeds even that level of training and proficiency.
For
all of these reasons, the trial court did not err in its finding that Shadow’s sniff
test was reliable, and thus a proper basis for a finding of probable cause to
issue a warrant.
2. Probable Cause Determination for Detention of
U-Pack
Appellant
additionally contends that the “sequestering of his U-Pack cube into a secured
area pending issuance of a warrant†was conducted without probable cause in
violation of the Fourth Amendment. (Fn.
omitted.) Again, we disagree.
Probable
cause is established where “there is a fair probability that contraband or
evidence of a crime will be found in a particular place.†(Illinois
v. Gates (1983) 462 U.S. 213, 238.)
A police officer has probable cause to conduct a search when the facts
available to him would “ ‘ “warrant a [person] of reasonable caution
in the belief†’ that contraband or evidence of a crime is present. [Citations.]â€
(Harris, supra, 133 S.Ct. at p. 1055.)
The test for probable cause is not reducible to “ ‘precise
definition or quantification.’
[Citation.]†(
All that the United States Supreme Court has required for a showing of
probable cause is the kind of “ ‘fair probability’ †on which ‘reasonable
and prudent [people,] not legal technicians, act.’ [Citation.]â€
(Ibid.) Notably, California appellate courts have
found that a dog alert can provide the probable cause needed for a search
warrant. (People v. Bautista (2004) 115 Cal.App.4th 229, 236, citing
721 F.2d 1457, 1464; Estes v. Rowland (1993)
14 Cal.App.4th 508, 532.) In evaluating
whether the state has made the requisite showing for of probable cause, we
adjudge the situation based on the totality of the circumstances. (Harris,
supra, 133 S.Ct. at p. 1055.)
Having
concluded that the sniff test provided Deputy White with probable cause to
suspect the U-Pack contained contraband, that probable cause was sufficient
legally to justify his decision to sequester appellant’s U-Pack until a search
warrant could be secured. However, quite
apart from relying only on Shadow’s sniff test, here Deputy White had probable
cause to take this action even in the absence of the sniff test result.
The
deputy’s interview with Sciortino revealed suspicious facts about appellant,
facts which appellant has not challenged. The shipping manager smelled the odor of
marijuana on appellant’s person. He also
told Deputy White that appellant had asked to use his own padlock, packed the
shipment in about five minutes, and was shipping the U-Pack from terminal to
terminal. The facts do not stand alone,
as Sciortino added that in his experience, the average customer’s packing time
for a U-Pack is 30 minutes or more; and that U-Packs are typically dropped off
at locations such as residences, not another U-Pack terminal. Appellant counters that Deputy White should
not have believed the accounts of Sciortino because “he [White] had never met
the shipping manager before[,] and thus had no foundation upon which to
consider the manager’s opinions and/or observations reliable.†However, conversely, Deputy White did not
have any information or foundation to believe that Sciortino’s observations of
appellant were not reliable. Appellant has cited no persuasive authority requiring
law enforcement officers to know or meet a particular individual before the
officer can credit that person’s account of suspicious activity as
credible. Thus, appellant’s argument fails.
Based
on all of these facts, adjudged under the totality of the circumstances
standard, there is no doubt that Deputy White acted reasonably and prudently
when he decided to request that appellant’s U-Pack be moved to a secure area of
the terminal until he could obtain a search warrant. (Harris,
supra, 133 S.Ct. at p. 1055.)
IV.
DISPOSITION
For
the foregoing reasons, the judgment is affirmed.
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON,
J.
_________________________
RIVERA, J.
to move to suppress evidence obtained in an improper search and seizure. (People
v. Williams (1999) 20 Cal.4th 119, 125, 129-131.)
container used to move items, and measures approximately eight-by-eight-by-six
feet.
