Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD221434, Frederick Maguire, Judge.
HALLER, J.
Regina Johnson (also known as Regina White) pleaded guilty to selling cocaine base. She contends the trial court erred in denying her motion to suppress evidence seized by the police from her wallet at her home. She asserts (1) the use of a police ruse vitiated her consent to enter her home, and (2) the illegal entry tainted the evidence taken from her wallet notwithstanding the fact that she consented to a search of the wallet. We conclude the ruse used by the police to enter defendant's apartment, which characterized her as a victim rather than a suspect, rendered her consent to enter involuntary. Further, we hold her consent to search her wallet was intertwined with her consent to enter, and thus her consent to search did not remove the taint of the illegal entry. Accordingly, we reverse the judgment and provide defendant the option of withdrawing her guilty plea. Given our holding, we need not address defendant's additional assertion that the manner in which the police conducted the wallet search interfered with her rights to limit or withdraw her consent to search.
FACTUAL AND PROCEDURAL BACKGROUND
Because the conviction was based on a guilty plea, we summarize the facts of the offense from the preliminary hearing and suppression hearing.
On June 9, 2009, Brian Goodin approached undercover police officer Simon Adams and asked if he wanted to purchase cocaine base. Officer Adams answered affirmatively. Goodin told Officer Adams to wait while Goodin went to get the narcotics. Goodin walked down the street and called out to two individuals, Douglas Edwards and defendant. Edwards and defendant stopped and looked back at Goodin. Defendant then continued walking, while Edwards met up with Goodin. Edwards and Goodin spoke briefly. After finishing his conversation with Goodin, Edwards walked back to defendant and sat down next to her. Defendant reached into a small bag she had been carrying and handed Edwards what appeared to be a small object. Edwards then walked over to Officer Adams and Goodin and asked who had the money. Officer Adams gave Edwards two prerecorded $20 bills, and Edwards provided Officer Adams with cocaine. Edwards walked back down the street and rejoined defendant. Edwards and defendant then went inside an apartment complex.
About 10 minutes later, uniformed members of the narcotics team (Officers Zdunich and Iverson) detained Edwards as he walked out of the apartment complex. When searching Edwards, the officers did not find the prerecorded money. At the officers' request, Edwards led them to defendant's apartment in the complex. As we shall detail below, defendant consented to the officers' entry into her apartment and to the search of her wallet. In defendant's wallet, the police found one of the prerecorded $20 bills used to buy the cocaine.
Defendant was charged with sale of cocaine, with a prior prison term allegation. She filed a motion to suppress the prerecorded money found in her wallet. At the suppression hearing, Officer Zdunich described how he and Officer Iverson gained entry into defendant's apartment to search for the prerecorded money. The officers, accompanied by Edwards, knocked on the door of defendant's apartment, and defendant answered the door. The officers wanted to conduct the search without defendant being "tipped off" to the investigation of the drug offense, so they used a ruse when requesting her consent to enter. Officer Zdunich told defendant that a concerned neighbor had called to report that defendant had been the victim of a domestic violence assault, and the officers wanted to see if defendant was "okay." The officers asked if they could come inside. Defendant answered "sure" and stepped aside to allow their entry. Defendant told the officers she was okay, and started talking to them about an incident in which she was the victim of an assault on the street.
The record indicates that Edwards was at the door of the apartment, but it does not appear that he accompanied the officers inside the apartment.
The officers did not know whether defendant had in fact been assaulted, but coincidentally she apparently had been.
Once inside the apartment, Officer Zdunich asked defendant if he could see her identification. Defendant stated "sure, " retrieved her wallet, and handed Officer Zdunich her identification card. Officer Zdunich asked if he could look inside her wallet. She answered "sure" and handed him the wallet.
Officer Zdunich then moved to the kitchen countertop, which was a few feet behind where defendant was standing. The officers had agreed that Officer Iverson would distract defendant during the search so that Officer Zdunich could look discreetly through her wallet for the prerecorded money. To distract defendant, Officer Iverson started talking to defendant about the injuries she had suffered when she was assaulted. Meanwhile, Officer Zdunich conducted the search at the kitchen countertop. He took the money out of the wallet, found and discretely photographed the prerecorded $20 bill, and put the money back into the wallet. Officer Zdunich then gave the wallet back to defendant.
Officer Zdunich estimated that the police contact with defendant, from the time of entry to the discovery of the prerecorded money, lasted about three to four minutes.
In her suppression motion, defendant argued her consent to enter the apartment and to search her wallet were involuntary because the officers' ruse characterized her as a victim rather than a suspect; she was not put on notice that she was under investigation for a narcotics transaction or any other crime; and she was materially misled as to the privacy rights she was surrendering. The prosecutor argued the officers' statements did not render defendant's consent involuntary because she was aware the police were conducting an investigation, and further, the ruse to gain entry did not impact her consent to search the wallet. In support, the prosecutor noted the police did not give a reason for the wallet search, and there was nothing to indicate the police expected evidence of an assault to be found in the wallet.
The trial court denied the suppression motion, finding the ruse did not overcome the otherwise voluntary consent to enter. The trial court reasoned that although the police misrepresented the purpose for their entry, defendant knew she was allowing police officers to enter to conduct an investigation. Further, the police asked for consent to search her wallet, and she voluntarily consented.
After the denial of her suppression motion, defendant pleaded guilty to the sale of cocaine base. She received probation with a suspended three-year sentence conditioned on the completion of a residential treatment program.
DISCUSSION
I. General Legal Principles
On appeal from a ruling on a suppression motion, we defer to the trial court's express and implied factual findings if they are supported by substantial evidence, and we exercise our independent judgment in determining whether, on the facts so found, the search and seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A warrantless entry or search by the police presumptively violates the Fourth Amendment proscription against unreasonable searches and seizures. (People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Henderson (1990) 220 Cal.App.3d 1632, 1649-1650.) The prosecution can overcome the presumption of unlawfulness by showing that the defendant voluntarily consented. (People v. Frye, supra, 18 Cal.4th at p. 989.)
To be voluntary, consent must be the product of free will and not a mere submission to an express or implied assertion of authority. (People v. James (1977) 19 Cal.3d 99, 106.) The issue of whether consent was voluntary or a response to an express or implied assertion of authority is a question of fact to be determined based on the totality of the circumstances. (People v. Reyes (1974) 12 Cal.3d 486, 501.) However, when the question is whether otherwise voluntary consent was vitiated by illegal police conduct, we independently review the impact of the illegality on the defendant's consent. (People v. Baker (1986) 187 Cal.App.3d 562, 568; see People v. Manning (1973) 33 Cal.App.3d 586, 602, fn. 1.)
Here, there are no facts suggesting the police asserted their authority when asking for consent to enter or for consent to search the wallet. Thus, this case does not involve a factual question of whether defendant involuntarily succumbed to police coercion. Rather, the question is whether defendant's otherwise voluntary consent was rendered involuntary because of the entry by ruse. We independently review this issue, measuring " 'the facts, as found by the trier, against the constitutional standard of reasonableness.' " (People v. Manning, supra, 33 Cal.App.3d at p. 599.) We apply an objective standard; i.e., "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" (Florida v. Jimeno (1991) 500 U.S. 248, 251; People v. Sanders (2003) 31 Cal.4th 318, 334.)
II. Police Ruse Describing Defendant as a Victim Vitiated Her Consent to Enter
Defendant argues the police ruse characterizing her as a victim vitiated her consent to enter her residence. We agree.
The United States Supreme Court has recognized that law enforcement is entitled to use deception during the investigation of criminal offenses, subject to constitutional checks to protect individual rights. (Lewis v. United States (1966) 385 U.S. 206, 208-212 [undercover agent could permissibly pose as narcotics buyer to gain consensual entry into home solely for purpose of conducting narcotics transaction]; People v. Lucatero (2008) 166 Cal.App.4th 1110, 1117.) Thus, police deception concerning the purpose of a search does not automatically render a consent to search involuntary. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1578.) Although "police deception as to the purpose of the search is relevant in assessing a suspect's consent, it cannot be analyzed in a vacuum without reference to the surrounding circumstances." (Ibid.) The relevant inquiry is whether the ruse materially misled the defendant as to the privacy rights being surrendered. (Id. at p. 1579.)
For crimes committed after June 8, 1982, the standards governing exclusion of evidence because of police illegality are derived solely from the federal Constitution. (People v. Glaser, supra, 11 Cal.4th at p. 363.)
A consent may be valid notwithstanding a police ruse if the defendant would reasonably have understood that the police wanted to investigate the defendant as a suspect, even though the police misrepresented the offense they were targeting. (See, e.g., People v. Avalos, supra, 47 Cal.App.4th at p. 1578 [officer asked for permission to search defendant's truck for property stolen in a burglary and other contraband, when the true purpose was to search for narcotics].) In contrast, a police ruse may render a consent involuntary if it misled the person to believe the police wanted to enter to provide assistance rather than to look for incriminating evidence. (See, e.g., People v. Daugherty (Ill.Ct.App. 1987) 514 N.E.2d 228, 230-231 [officer gained entry into home by telling defendant's wife he was there to investigate theft she had reported, when true purpose was to investigate for presence of marijuana].)
Here, when requesting entry, the police led defendant to believe she was a victim, not a suspect. The police officers did not broadly request permission to enter for an unspecified purpose, nor did their request to enter alert defendant that she was a suspect. Defendant's consent was premised on the belief that the police were there to help her, not to seek evidence against her. Because defendant's consent was related to her perceived status as a victim of an assault, she would not reasonably have expected that her consent could expose her to criminal culpability. Defendant's narrow consent to enter for purposes of assisting her cannot translate into a voluntary consent to enter for purposes of investigating her as a suspect. Given that the police misled her to believe she was surrendering her privacy rights only vis-à-vis her status as a victim, the ruse constituted an unlawful deception. Thus, the warrantless entry into her apartment was illegal.
III. Consent to Search Wallet Was Not Independent of Illegal Entry
Defendant argues the evidence seized from her wallet should have been suppressed because it was tainted by the illegal entry into her residence. She contends her consent to search the wallet, occurring within minutes of the illegal entry, was not an attenuating circumstance that purged the taint of the illegality. We agree.
Under the fruit of the poisonous tree doctrine, evidence that was obtained as a result of unlawful police conduct may have to be excluded. (Wong Sun v. United States (1963) 371 U.S. 471, 484-486; In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.) However, not "all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the... question... is 'whether, granting establishment of the primary illegality, the evidence... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " (Wong Sun v. United States, supra, 371 U.S. at pp. 487-488.) "That degree of 'attenuation' which suffices to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained 'by exploitation of that illegality.' " (People v. Sesslin (1968) 68 Cal.2d 418, 428.) When deciding attenuation, we consider such factors as the temporal proximity between the violation and the procurement of the evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct. (People v. Boyer (2006) 38 Cal.4th 412, 448.)
Voluntary consent to a search following an illegality does not dissipate the taint of the illegality unless there is sufficient attenuation. (People v. Boyer, supra, 38 Cal.4th at p. 450; People v. Henderson, supra, 220 Cal.App.3d at p. 1651; see Brown v. Illinois (1975) 422 U.S. 590, 602-605 [Miranda warnings and voluntary statement do not automatically purge taint of illegal arrest].) When a consent to search is secured immediately following illegal police conduct, the consent and the illegality may be so intertwined that the consent cannot break the connection between the illegality and the seized evidence. (See People v. Haven (1963)59 Cal.2d 713, 718-719; People v. Poole (1986) 182 Cal.App.3d 1004, 1012-1013; People v. Baker, supra, 187 Cal.App.3d at pp. 569-571.)
Here, the consent to enter and the consent to search the wallet were inextricably intertwined. The consent to search occurred within minutes of the consent to enter. As stated, defendant thought the police were there to help her. Believing she was not being investigated as a suspect, she freely allowed the police into her apartment, gave them her identification card, and allowed them to look into her wallet. The police did nothing to suggest to her that their motive for searching her wallet differed qualitatively from their reason for entering the apartment. Thus, her cooperation during the encounter stemmed solely from a belief that the police were assisting her. Under these circumstances, her consent to allow a search of her wallet cannot be deemed an independent act that dissipated the taint of the illegal entry.
Because the evidence in defendant's wallet was seized illegally, the trial court erred in denying defendant's motion to suppress the evidence.
IV. Defendant Has Option of Withdrawing Plea
Defendant's decision to plead guilty may have been impacted by the denial of her motion to suppress a key item of evidence. (See People v. Ruggles (1985) 39 Cal.3d 1, 13; People v. Miller (1983) 33 Cal.3d 545, 556; People v. Ramirez (2006) 140 Cal.App.4th 849, 854; People v. Grant (N.Y. 1978) 380 N.E.2d 257, 265 [erroneous denial of suppression motion requires reversal unless there is no reasonable possibility the denial contributed to defendant's decision to plead guilty].) Accordingly, she is entitled to withdraw her plea.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to grant defendant's motion to suppress the evidence seized from her wallet. Defendant may make a motion to withdraw her guilty plea within 30 days of the date of
issuance of the remittitur for this opinion. If defendant elects not to withdraw her plea, the trial court shall reinstate the judgment. (People v. Ruggles, supra, 39 Cal.3d at p. 13.)
WE CONCUR: McCONNELL, P. J., McINTYRE, J.