Opinion
C074355
12-22-2016
THE PEOPLE, Plaintiff and Respondent, v. LEWIS LAIRD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F01847)
Defendant Lewis Laird pleaded nolo contendere to possession of methamphetamine for sale (Health & Saf. Code, § 11378) pursuant to a negotiated plea after the trial court denied his motion to suppress evidence seized in a warrantless search of his bedroom. (Pen. Code, § 1538.5; unless otherwise set forth, statutory section references that follow are to the Penal Code.) Defendant consented to the search after peace officers entered the home to conduct a probation search and execute an arrest warrant of another resident at that address. Defendant obtained a certificate of probable cause (§ 1237.5) to argue on direct appeal that his trial counsel rendered ineffective assistance in connection with the suppression motion by raising only a knock-notice violation and failing to raise other issues of unlawful entry, protective sweep, detention, de facto arrest, and involuntary consent to search. On this record, we conclude defendant fails to show grounds for reversal.
FACTS AND PROCEEDINGS
Defendant was charged with possession of methamphetamine for sale (and prior conviction allegations that were later dismissed).
The defense moved to suppress evidence of drugs and drug paraphernalia seized from his residence on the ground of a warrantless search, shifting the burden to the prosecution to justify the warrantless search under People v. Williams (1999) 20 Cal.4th 119, 129, 134. The prosecution opposed the motion, arguing entry was lawful to conduct a probation search; defendant did not have a reasonable expectation of privacy because he resided with someone on probation; detention of defendant was justified while officers searched the residence for Castro; defendant consented to the search of his room; and the search of the nightstand did not exceed the scope of the consent.
Under Williams, supra, 20 Cal.4th at pages 130-131, the defense was then required to specify any inadequacies in the prosecution's justifications. The defense did not file a written reply.
At the hearing on the motion, Lieutenant Eric Buehler (who apparently was a Sergeant at the time of the search) testified that, around noon on March 15, 2011, he and Deputies Eric Hobbs and Bob French went to the subject address to conduct a probation search of Robert Castro and attempt to arrest him on a no-bail felony arrest warrant for vehicle theft. Buehler wore "raid gear," i.e., a black raid vest marked "Sheriff," tan utility pants, and a black Polo shirt. Buehler said Deputy Hobbs had ascertained Castro's address from his probation file and the Sheriff Department's "known persons" file. On cross-examination, the defense elicited that Buehler was unaware whether law enforcement had prior contacts with Castro at that address.
Deputy Hobbs testified he checked the known persons file for Castro's address, which the records reflected had last been updated 13 days earlier. A records check of that address for any other warrants or probationers showed another resident, Cherie Henrich, was on searchable probation. Hobbs testified he believed Castro was present in the house but, when asked what information led him to that belief, Hobbs said, "I don't have any information that told me he was there. I was just going there to attempt to pick him up." Defense counsel did not cross-examine Hobbs. Deputy French did not testify.
When the peace officers arrived, they saw a vehicle parked in the driveway and another vehicle parked on the lawn. The garage roll-up door was open. Hobbs went to the backyard. The other two officers entered the open garage, knocked on the interior door to the residence, and announced, "Sheriff's Department, probation search." No one responded. The two officers entered the house through the unlocked door from the garage into the dining room. They did not see anyone or hear anything. When asked what made him believe Castro was at the residence at that time, Buehler testified he believed someone was home based on the cars and the open garage door, and the absence of response led Buehler to believe it was possible that occupants were attempting to conceal their presence, as often happens when the peace officers go to a residence.
The peace officers conducted a protective sweep of the home to secure any occupants for the officers' safety. When Hobbs, who was at the back door saw the other officers going through the house, he entered through the back door, announcing "Sheriff's Department and probation search." Hobbs then stayed in the living room to "receive" the occupants.
Doors were closed on three bedrooms. Without knocking or announcing themselves, the officers opened one door and detained a female. (None of the females in the house was the woman on searchable probation.) Without knock-notice, the officers opened the door to the master bedroom, where defendant was lying in bed with a second female. A German Sheppard in the room barked at and approached the officers. The officers had the woman put the dog in the attached bathroom. It appears the officers had guns drawn when they entered the bedrooms.
The peace officers placed defendant in handcuffs and detained him in the living room. Buehler testified to the reason, "Well, there's multiple subjects in the house. There was only three of us [officers] in the house. We had not finished conducting the sweep of the house. There was still another bedroom that we had not cleared. And so that's why they were detained at that time for our safety."
The officers went to the last bedroom door, which was locked. They knocked, and the door was opened by a third female. A pit bull type dog was also in the room. The officers removed the woman to the living room, leaving the dog in the bedroom.
There was no evidence that the officers encountered Castro or the female probationer at the house that day.
Buehler, who had observed several glass pipes commonly used for narcotics on defendant's nightstand, brought defendant from the living room into the hallway and asked if there were any drugs in his bedroom. Buehler testified that, by this time, "Guns were put away." Defendant said there were no drugs in his bedroom, and said the officer "could search if [he] wanted to, I'm not going to find anything."
The officers searched defendant's room and found, in a secret compartment in the nightstand, 26.5 grams of methamphetamine. On the bed they found his wallet with $900 in cash and his jacket with three one-inch baggies in the pocket. A digital gram scale was in a drawer.
The probation report stated that, according to the report of the Sheriff's Department, an officer then read defendant his rights (Miranda v. Arizona (1966) 384 U.S. 436). Defendant waived his rights and said he bought the methamphetamine for personal use as a birthday present for himself. Defendant's birthday was the day before the search.
After witness testimony, the trial court entertained argument. Defense counsel stated he had received the probation records, assumed there was indeed an arrest warrant for Castro, and was not arguing the officers lacked reasonable grounds to believe Castro lived there. Counsel asserted a knock-notice violation as grounds for suppression, arguing the officers violated knock-notice by entering the open garage and knocking on the interior door leading from the garage into the dining room, instead of knocking on the front door of the house.
The trial court found a "knock-notice" violation but ruled pursuant to case law that it did not require exclusion of the evidence where the officers were in the house for a probation search. The court accordingly denied the suppression motion.
Defendant pleaded nolo contendere, was convicted, was sentenced to 16 months in jail, and obtained a certificate of probable cause for the appeal (§ 1237.5).
DISCUSSION
I
Ineffective Assistance of Counsel Generally
Defendant does not disagree with the trial court's conclusion that the knock-notice violation did not justify suppression of the evidence. (Hudson v. Michigan (2006) 547 U.S. 586 [knock-announce not required when executing search warrant and circumstances present threat or evidence might be destroyed or knock-announce would be futile]; In re Frank S. (2006) 142 Cal.App.4th 145 [exclusionary rule does not apply to knock-notice violation where officers were lawfully in the home for a valid parole search].)
Defendant instead complains his trial counsel rendered ineffective assistance by relying only on a knock-notice violation that could not have resulted in the suppression of evidence. Defendant argues trial counsel should have argued other grounds, i.e., that the officers' failure to corroborate Castro's residence or presence in the house rendered unlawful the entry, protective sweep, and detention; the detention was a de facto arrest; and defendant's consent to search his room was involuntary.
To prevail on a claim of ineffective assistance of counsel, defendant must establish by a preponderance of evidence that counsel's performance was deficient, i.e., fell below an objective standard of reasonableness under prevailing professional norms, and that the substandard representation prejudiced defendant, i.e., there is a reasonable probability that defendant would have obtained a better result, but for counsel's deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) When counsel's alleged deficiency relates to failure to make a suppression motion, the defendant must show not only meritorious grounds for the motion, but also that the motion would have been successful in suppressing the evidence. (People v. Gonzalez (In re Gonzalez) (1998) 64 Cal.App.4th 432, 438.)
We defer to counsel's reasonable tactical decisions and presume counsel acted within the wide range of reasonable professional assistance. (Mai, supra, 57 Cal.4th at p. 1009.) On direct appeal we will not reverse a conviction for ineffective assistance of counsel unless (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. (Ibid.; People v. Williams 16 Cal.4th 153, 215.) Otherwise, we affirm the conviction, and defendant is relegated to habeas corpus proceedings at which evidence outside the record may determine the basis, if any, for counsel's conduct or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
Defendant argues his claim of ineffective assistance of counsel must have merit, because the trial court granted his request for a certificate of probable cause (CPC) to argue the matter on appeal despite his having pleaded nolo contendere. (§ 1237.5.) Defendant says he filed his opening brief on appeal before the trial court granted the CPC, and the appellate brief must have persuaded the trial court that the appeal has merit because otherwise the trial court would not have granted the CPC. Defendant is wrong; the issuance of the CPC merely reflects that defendant has shown reasonable "grounds going to the legality of the proceedings." (Ibid.)
II
Corroboration
Defendant maintains his trial counsel was ineffective for failing to argue in the trial court that the prosecution was required to produce evidence corroborating law enforcement records listing the subject address as Castro's residence, in order to justify the officers' entry into the home. Defendant argues there is no evidence that the deputies had any prior contact with Castro at that address, or that they checked DMV records or utility records or that they conducted any surveillance of the home to see if Castro appeared. Defendant fails to show ineffective assistance of counsel on this record.
Defendant cites Steagald v. United States (1981) 451 U.S. 204 , which held that, although peace officers may enter the home of a person to execute an arrest warrant when there is reason to believe the suspect is within, officers may not enter the "home of a third person" unless there is independent evidence that a legitimate object of a search is located in the third party's home -- a determination to be made by the magistrate, not a peace officer (Id. at pp. 213-214.) But Steagald was referring to a situation where police might think the suspect was visiting a residence, not where police had reason to believe the suspect resided at the residence with others. "[T]he agents sought to do more than use the warrant to arrest Lyons in a public place or in his home; instead, they relied on the warrant as legal authority to enter the home of a third person based on their belief that Ricky Lyons might be a guest there." (Id. at p. 213, italics added.) Here, the officers reasonably believed Castro resided at that address.
The parties argue whether officers executing an arrest warrant at a person's home must have reason to believe the person is home at that time. We need not resolve the issue because, even apart from the arrest warrant, a valid probation search condition authorizes the search of a probationer's residence. (People v. Robles (2000) 23 Cal.4th 789, 795-796; People v. Bravo (1987) 43 Cal.3d 600, 611.) The officers must have objectively reasonable grounds to believe the probationer resides there. (People v. Downey (2011) 198 Cal.App.4th 652, 661-662.)
Although defendant on appeal refers to Castro as an "alleged" probationer, defense counsel stated in the trial court that he had received Castro's probation records and believed the prosecution would be able to lay the foundation for a hearsay exception for the officer's testimony that Castro was on searchable probation at that address. Defendant on appeal argues defense counsel's statements are not evidence. Defendant cites the inapposite case of People v. Edwards (2013) 57 Cal.4th 658, 764, which said attorney statements during closing argument to the jury are not evidence. Here, there was no need for evidence to support counsel's representation.
The law enforcement records, updated shortly before this incident, gave the officers reasonable grounds to believe Castro resided at that address. The circumstances supported the officer's belief that someone was hiding in the house, i.e., there were two cars and an open garage yet no one answered the door. Defendant thinks it is more reasonable to believe that the persons in the house did not hear the knock-notice, since the officers found defendant and the woman in bed, and the officers did not hear either a dog bark in response to their knock-notice. However, it suffices that the officers' beliefs were objectively reasonable. Defendant suggests the trial court's finding of a knock-notice violation means the occupants must not have heard the knock-notice. Not so. Though not clear, it appears the court found a knock-notice violation because the door they knocked on was an interior door from garage to dining room, not an outside door.
Defendant claims the peace officers were required to make some attempts to corroborate the law enforcement records that Castro lived at that address, because it is well known to peace officers that probationers routinely give false addresses to authorities in order to avoid probation searches. However, defendant's cited authorities are inapposite. For example, in Downey, supra, 198 Cal.App.4th at page 659, different sources gave conflicting addresses, and the police detective used the most recent record -- utility records -- which are a reliable source, and the detective testified that "in his experience" probationers often gave false addresses to avoid being searched. Here, there was no conflict to be resolved and no evidence that probationers often give false addresses. In People v. Smith (2010) 190 Cal.App.4th 572, the probationer gave two different addresses to the probation department. (Id. at pp. 574-575.) In People v. Spratt (1980) 104 Cal.App.3d 562, 565, police got the address from an unidentified informant, which of course called for corroboration.
Defendant also asserts peace officers must have "probable cause" to believe the probationer lives at a particular address. However, he cites a Ninth Circuit case (United States v. Gorman (9th Cir. 2002) 314 F.3d 1105) that "stands alone" on this standard, whereas all others apply the reasonable belief standard, as noted by Downey, supra, 198 Cal.App.4th at pages 661-662. Defendant also claims People v. Jacobs (1987) 43 Cal.3d 472 demands probable cause, but Downey, supra, 198 Cal.App.4th at page 662, noted Jacobs actually applied the reasonable belief standard.
Thus, defendant fails to show that trial counsel was ineffective for failing to argue that lack of corroboration of Castro's address rendered the entry unlawful.
III
Protective Sweep
Defendant contends trial counsel should have argued that the officers' entry into his bedroom without announcing themselves could not be justified as a lawful protective sweep, because there was no indication that people in the house posed a danger to the officers. We disagree.
A protective sweep of a house for officer safety is justified if the facts articulated by the officers support a reasonable suspicion that someone is inside the house and poses a threat to officer safety. (People v. Ledesma (2003) 106 Cal.App.4th 857, 864.) Ledesma upheld a protective sweep incident to a probation search. Officer safety is a primary consideration when officers conduct a probation search of a residence. (People v. Matelski (2000) 82 Cal.App.4th 837, 850 (Matelski).)
Here, officer testimony supported a reasonable suspicion that someone was inside the house because there were cars outside and the garage door was open. The testimony also supported a reasonable suspicion that someone inside posed a threat to officer safety because there was a felony arrest warrant for a resident at that address as well as two persons subject to searchable probation, and it appeared someone was home but was hiding from the officers (hence presented a threat to the officers) because no one answered the knock-notice, and the house was quiet such that there was no apparent reason why occupants would not have heard the knock-notice. That the dogs did not bark at the knock-notice does not mean the humans did not hear the knock-notice. It could mean the humans commanded the dogs to be silent, consistent with the officers' perception that people were hiding from the officers. The knock-notice violation found in this case was not due to officers' failure to make their presence known, but rather to the officers' knocking on an interior door of the house which, as argued by defense counsel, violated the "constitutional integrity of the house."
Defendant fails to show ineffective assistance of counsel for failure to challenge the protective sweep.
IV
Detention
Defendant argues his detention was unlawful, tainting his consent to search, and trial counsel was deficient in failing to argue this point.
Officers may briefly detain persons present in a residence during a probation search to ascertain identity, relationship to the probationer, and relationship to the probationer's residence. (People v. Rios (2011) 193 Cal.App.4th 584, 595.) Officer safety is a primary consideration when officers conduct a probation search of a residence. (Matelski, supra, 82 Cal.App.4th at p. 850.)
V
De Facto Arrest
Defendant argues trial counsel was deficient in failing to argue that the detention of defendant was a de facto arrest, tainting his consent to search his room, because the officers unjustifiably had guns drawn and handcuffed him.
Handcuffing, even at gunpoint, for a brief period in connection with a protective sweep does not necessarily constitute a de facto arrest. (People v. Celis (2004) 33 Cal.4th 667, 674-676.)
VI
Consent
Defendant claims counsel should have argued defendant's consent to search was involuntary. On this record, he fails to show ineffective assistance of counsel.
Voluntariness of consent is a question of fact to be determined based on the totality of circumstances. (People v. James (1977) 19 Cal.3d 99, 106.)
Defendant invited the search of his room for drugs. He claims the circumstances suggest he believed the officers would search anyway and was therefore coerced to consent, with the hope that the officers would not find the drugs secreted in the hidden compartment of the nightstand. However, the circumstances also suggest defendant invited the search simply because he felt confident the officers would not discover the hidden compartment.
On this record, defendant fails to show ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. BLEASE, J.