Opinion
A152673
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL O'NEIL LONG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR939701)
Defendant Daniel O'Neil Long appeals from a judgment entered upon his no contest plea to drug and weapons charges, challenging only the denial of his pretrial motions to suppress evidence and traverse a search warrant. The motions were properly denied and we shall therefore affirm the judgment.
Background
Following the trial court's denial of the motions under review, defendant pled no contest to felony possession of an assault weapon (Pen. Code, § 30605) and two misdemeanor marijuana violations (Health & Saf. Code, §§ 11359, 11358). Pursuant to the plea agreement additional charges were dismissed, defendant was sentenced to county jail for two years, with 90 days to be suspended and served on mandatory community supervision, and fines and fees were imposed. Long timely filed a notice of appeal.
The following summary of the evidence presented at the hearing on defendant's motion to suppress and traverse is taken from defendant's appellate brief.
On July 1, 2015, Brandon Olivera, a Placer County district attorney investigator assigned as the task force commander for the Tri-County drug enforcement team, and his canine assistant, were at the Sacramento International Airport Federal Express air facility, conducting parcel interdiction operations. Olivera explained that under an agreement with Federal Express, officers have authority to seize suspicious packages without a warrant and hold the packages for further investigation.
Olivera's canine assistant, who was certified to detect marijuana, methamphetamine, cocaine, and heroin, alerted on a package addressed to Long at his Stub Street address in Lakeport. The return address on the package was listed as: Josh Long in Liverpool, New York. Olivera seized the package, expecting to find that it contained contraband or drug proceeds. He did not have or obtain a warrant at that time.
Instead, Olivera asked Lake County Sheriff Deputy Frank Walsh to conduct a "knock and talk," i.e., a consensual contact, to seek Long's consent to open the package. Olivera told Walsh he suspected the package contained the proceeds of drug sales. Olivera also "believe[d]" he told Walsh that a Google Earth search of the Stub Street address reflected marijuana was previously under cultivation in the backyard.
About 1:49 p.m. that day, Walsh and Detective Joe Dutra arrived at the residence in Lakeport. A large truck was parked in the driveway. Walsh testified that from his view while standing in the street as he approached the residence, he saw marijuana growing in the back yard. There was a six-foot wooden fence between the street and the back yard. Walsh said the marijuana plants were taller than the fence, growing over the top of the fence. Walsh approached the fence, visually checking the backyard for "subjects." Dutra testified that the purpose of their trip to the residence was to "follow up" regarding a package found by another agency, which had been found to contain a large amount of money. He testified that he did not see a medical marijuana notice on the fence.
Walsh was in plain clothes, wearing a law enforcement badge and a body camera. Dutra was also wearing a body camera, which was activated during the encounter. Walsh activated his body camera as he approached the front of the residence.
Video clips from Walsh's body camera were played during the evidentiary hearing. The video did not depict visible marijuana plants at any point as the deputy approached the residence, side yard, or fence. Walsh said his body camera activated while he was on the driveway of the residence, as he walked toward the left side of the house, but that he had seen the marijuana plants on the right side of the house, earlier when he was on the street, about 15 feet from his vehicle. Dutra recalled seeing marijuana plants in a neighboring residence, but did not recall seeing marijuana in plain view from the street in Long's yard.
Walsh knocked on the door of the Stub Street residence and asked the female who opened the door, identified as Long's wife, whether Long was there. As the female left the doorway to get Long, she started to close the door, but Walsh told her to keep it open. Walsh denied touching the door, or making any attempt to keep it open. The video from Dutra's body camera showed Walsh reaching up in the area of the doorjamb at the top of the door.
Although defendant's brief, from which this summary is taken verbatim, recites that Walsh told the wife to keep the door open, Walsh's testimony was that he said, "You can keep it open." He testified, "I didn't order her to leave it open." --------
Long came to the front door, where the two officers were standing, and stood outside to talk to the officers. The door was open so officers saw that Long's wife and young children were inside the residence, and the children were running around and playing. Although Walsh said the contact with Long was "consensual," he also said that he would have "secured the residence" for a warrant if Long had gone back inside and closed the door on the officers. Walsh told Long he was with the sheriff's office and asked if he was expecting a package. Long said he was not. In response to the officer's questions, Long said he did not know Josh Long, and gave the officers consent to open and examine the package.
After receiving that consent, the officers began to question Long about whether he was growing marijuana, whether he had grown marijuana in the past, and whether he had any weapons. Dutra also questioned Long about his truck parked in the driveway, the neighbors' greenhouse and further about Long's plants. Long told Dutra he had a medical marijuana recommendation permitting him to grow plants.
While Dutra continued to converse and question Long, as Long stayed on the front porch of his residence, Walsh phoned Olivera to relay Long's consent to open the package. During their phone conversation, Walsh told Olivera that he had observed marijuana being cultivated in the residence's backyard. He also said he would love to take the truck that was parked in the driveway, referring to asset forfeiture.
Walsh and Dutra stayed with Long, waiting for Olivera to call Walsh back after he opened the package. Inside the package, Olivera found $14,500 in U.S. currency in vacuum-sealed plastic packaging, wrapped in carbon paper. Olivera said he smelled the odor of marijuana as he unpackaged the money. However, there was no marijuana on the currency or inside the package. Long denied the money belonged to him.
While Long stood outside the residence with the officers, Long's wife came to the door and Long asked her to bring him his cigarettes from inside the residence.
Once Walsh received Olivera's call, relaying the content of the package, he told Long he was going to get a warrant, at which point the officers asked Long if anyone was in the house other than his wife and children, and whether he had any weapons. Long said he was there with only his wife and three children, and that he had a registered, unloaded firearm in the garage, stored up where the children could not reach it. The officers said that they were going to "secure" the residence "in anticipation of obtaining a search warrant," at which point Walsh walked through the residence, the garage, and the backyard.
Deputy Sheriff Dennis Keithly prepared an affidavit for a search warrant based upon information provided by Walsh. A copy of the search warrant was admitted as defendant's exhibit B. Specific to Long's residence, the affidavit in support of the request for issuance of a search warrant stated: "On 07/01/2015, Detective Frank Walsh received information from Brandon Olivera who works for the Mountain and Valley Marijuana Eradication Team based out of Sacramento. Brandon Olivera told Detective Walsh that they had been conducting package interdiction. Brandon told Detective Walsh that a Narcotics Canine alerted to a package addressed to Dan Long at 2917 Stubbs Lane in Lakeport, County of Lake, State of California. [¶] Detective Walsh told me he responded to 2917 Stubbs Ln and contacted Dan Long . . . . Detective Walsh asked Long if he was expecting a package through the mail. Dan Long told Detective Walsh he was not expecting any packages. Detective Walsh told me he asked Long for consent to open the package. Long told Walsh the package did not belong to him and consented to the package being opened. [¶] Brandon Olivera opened the package and found it contained approximately $15,000.00 in cash. Detective Walsh confronted Dan Long about the currency located in the package. Long told Detective Walsh the currency did not belong to him. [¶] Detective Walsh told me he could see marijuana growing in the back yard of the residence. Dan Long admitted to Detective Walsh that he was growing approximately 60 marijuana plants total both indoor and outdoor. Dan Long also told Detective Walsh that he possessed an AK-47 rifle inside the residence. [¶] Detective Walsh described the residence as being grey in color with white trim. The numbers 2917 are black in color and are posted vertically to the left of the front door of the residence. Detective Walsh told me there was a grey colored Chevrolet Duramax in the driveway of the residence with a vehicle identification number of . . . ."
Based upon the affidavit, the court issued a warrant on July 1, 2015, at 3:40 p.m., and the warrant was delivered to Walsh at the residence to be executed. The officers seized marijuana plants, the firearm and ammunition, equipment used in the preparation of marijuana for consumption, among other things, all of which—together with defendant's admissions during the exchange with the officers—defendant sought to suppress by his pretrial motions.
Discussion
As both parties recognize, this court reviews the trial court's factual findings under the deferential substantial evidence standard and makes an independent evaluation of whether the conduct complies with constitutional standards. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
Defendant contends that the information on which the search warrant affidavit was based—referring specifically to defendant's acknowledgement that he was growing approximately 60 marijuana plants and had a rifle in his garage—was obtained during an unlawfully prolonged detention. Defendant unquestionably was not under detention when he initially spoke with the officers disclaiming any knowledge of the package addressed to him and expressing no objection to opening the package. Until that point, the "knock and talk" interview was plainly consensual. (E.g., People v. Rivera (2007) 41 Cal.4th 304, 308-309.) Defendant contends that the situation became nonconsensual and a detention when the conversation extended beyond his disclaimer of any interest in the package, as evidenced by the officers telling his wife "not to shut the door" (which was not the testimony; see footnote 1, ante), by the fact that defendant asked his wife to get his cigarettes, supposedly indicating that he did not feel free to leave the officers and get them himself, and by the "protective sweep" of the house that was made after defendant indicated the presence of a rifle. However, we agree with the trial court's evaluation that, viewing the entire situation, the encounter remained consensual throughout. Prior to the execution of the search warrant, the officers made no demands or threats; there was no objective basis for the defendant to believe he was not free to terminate the exchange. (People v. Rivera, supra, at p. 308; People v. Jenkins (2004) 119 Cal.App.4th 368, 372-373.) The fact that the officers asked defendant questions about growing marijuana in itself did not convert the exchange into a detention. (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1370.)
Even if one were to assume that at some point the encounter became a detention, the detention was not unreasonable given the suspicious package addressed to defendant, the visible marijuana plants, and then the acknowledged presence of a rifle on the premises. Moreover, the encounter was relatively brief. The record indicates that the officers arrived at the property at 1:49 p.m. and the warrant was issued at 3:40 p.m. and apparently executed promptly thereafter.
Defendant contends that the search warrant was based on inaccurate and incomplete information. The inaccuracy he contends was that Walsh observed marijuana plants in the back yard when he first arrived at the premises. However, although defendant questions Walsh's credibility, the trial court observed there was no contrary evidence indicating the plants could not be seen from the location at which Walsh said he saw them, and the court explicitly "believe[d] his testimony about seeing the marijuana over the fence from a public place in the street before he went up."
Defendant asserts the warrant affidavit was misleading because it failed to state that defendant had indicated he had a medical marijuana authorization and that the rifle was unloaded, registered and stored beyond the reach of his children. The trial court explicitly found that the affidavit contained no "falsehoods" and implicitly that the omissions were not material. We agree. Regardless of whether defendant held a medical authorization to possess and grow a limited number of marijuana plants for his personal use, the much larger number of plants on the premises was nonetheless significant as a potential sign of illegal activity. And the presence of a rifle on premises on which illegal marijuana production appeared to be occurring was significant even if registered, unloaded and stored away from the reach of children. There is no basis to consider the omissions either material or intentional. Adding the additional facts to the warrant application would not have altered the showing of probable cause that justified issuance of the search warrant. (People v. Waxler (2014) 224 Cal.App.4th 712, 720.)
Defendant also contends that the "protective sweep" of his home was a Fourth Amendment violation. The cursory inspection that was made to ensure that others were not hiding on the premises undoubtedly was reasonable under the circumstances but, in all events, the sweep produced no evidence. Even if improper, there was nothing for the court to suppress as a result of the inspection.
In short, the trial court properly denied the motions to suppress and to traverse the search warrant affidavit.
Disposition
The judgment is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.