Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Kellogg, Judge., Los Angeles County Super. Ct. No. LA052417.
Richard Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Kelly Price appeals from a judgment of conviction following a no contest plea. Defendant pled no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). A misdemeanor charge of possession of a smoking device (id., § 11364, subd. (a)) was dismissed. Pursuant to Proposition 36, imposition of sentence was suspended and defendant was placed on formal probation for three years under numerous terms and conditions. Defendant contends that the trial court erred in denying her motion to suppress filed pursuant to Penal Code section 1538.5. We agree.
The facts are taken from evidence presented at the hearing on defendant’s suppression motion.
On May 13, 2006, at approximately 8:30 p.m., Officer William Lantz was on uniformed patrol, conducting random hotel checks. He went to the Charles Motel on Ventura Boulevard. Officer Lantz obtained the registry of occupants and checked the names on the computer system in his vehicle. When he checked the name Kelly Price, defendant’s name, the system provided information that she was on active probation for drugs. The system did not indicate whether the probation was for a misdemeanor or felony conviction or the conditions of the probation. Officer Lantz just assumed it was felony probation.
Officer Lantz went to defendant’s room and knocked on the door. A man opened the door. Officer Lantz asked him if Kelly Price was in there. The officer could see defendant lying on the bed. From outside of the room, he asked her if she was Kelly Price. She said, “Yes.” He asked her if she was on probation. She verified she was. Then Officer Lantz asked defendant if she had anything illegal inside the room. She told him she had a pipe and that it was on the night stand. He entered the room to recover the pipe.
In response to questions from the trial court, Officer Lantz testified that he found the pipe on the night stand when he entered the room, but he could not see it from where he was standing before entering.
Officer Lantz confirmed that he was in uniform, wearing his gun, when he knocked on the door. He acknowledged that after he identified himself as a police officer and stated his purpose for knocking on the door, the man and defendant were not free to leave the room. Prior to asking defendant if she had anything illegal, he did not advise her of her Miranda rights. Officer Lantz entered the room when defendant said she had something illegal, and then he saw the illegal items. He seized them pursuant to his belief that defendant was subject to a search and seizure condition to her probation. The officer testified that his purpose for being at defendant’s room was that he believed there was a search and seizure condition on defendant’s probation, but he did not verify that was true.
Miranda v. Arizona (1966) 384 U.S. 436, 444.
The items seized apparently included not only the illegal pipe, but also a bag containing methamphetamine. At defendant’s preliminary hearing, Officer James Rene testified that he was Officer Lantz’s partner and accompanied him to defendant’s motel room. He saw Officer Lantz go over to a table and recover the drug pipe and heard him say, “What’s this?” When Officer Lantz left the room, he had a bag containing a white substance which Officer Rene believed to be methamphetamine. Officer Rene testified that Officer Lantz booked the white substance into evidence for the instant case. In the motion to suppress proceedings, however, no evidence was introduced regarding any methamphetamine.
DISCUSSION
Contentions
Defendant contends that the officer’s entry into defendant’s motel room was in violation of the Fourth Amendment, with no basis for any exception, and therefore, the evidence seized must be suppressed, in that it is fruit of an unreasonable search and seizure. Defendant argues that no recognized exception to the Fourth Amendment warrant requirement applied, in that the evidence was not obtained as the result of a search incident to a probation condition, an illegal item being in the officer’s plain view, or any express or implied consent by defendant.
The People basically concede defendant’s contentions. They admit that there was no search condition to defendant’s misdemeanor probation, the officer could not see the illegal pipe from his position outside the room, and defendant did not give the officer consent to enter.
The People contend, however, that the Fourth Amendment did not apply, in that the officer’s encounter with defendant was consensual. The People also assert that defendant’s admission that she was illegally in possession of a drug pipe constituted probable cause for the officer to enter and arrest defendant. Once the officer entered, the illegal pipe was in his plain view and he lawfully seized it.
Standard of Review
In reviewing a trial court’s ruling on a suppression motion, we must uphold any express or implied factual findings made by the trial court if they are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Williams (1988) 45 Cal.3d 1268, 1301.) We determine independently, as a matter of law, the applicable rule of law for assessing whether the challenged police action violated the Fourth Amendment protection against unreasonable searches and seizures. (Hughes, supra, at p. 327; Williams, supra, at p. 1301.) Finally, we independently determine whether, applying the rule of law to the facts in the instant case, the challenged police conduct, as a matter of law, constituted an unreasonable search or seizure in violation of the Fourth Amendment. (Williams, supra, at p. 1301.)
If the search or seizure in question did not comply with the Fourth Amendment standard of reasonableness, the evidence must be suppressed. (People v. Gallant (1990) 225 Cal.App.3d 200, 206.) When a reviewing court determines that the search or seizure of evidence was in violation of the Fourth Amendment, a defendant is entitled to have the judgment of conviction reversed and to have an opportunity to have his or her guilty plea set aside, and if the plea is set aside, the state may reinstate all the original charges contained in the information. (People v. Miller (1983) 33 Cal.3d 545, 556.)
Consensual Encounter and Search Incident to Arrest
The People claim that there is no Fourth Amendment issue because seizure of the evidence was pursuant to defendant’s consensual encounter with the officer, during which she admitted having a drug pipe, and the admission gave the officer probable cause to enter and arrest her. Additionally, defendant points out that the People never raised the theory that the officer’s entry and search fell within the search incident to a lawful arrest exception to the Fourth Amendment warrant requirement. Defendant contends that the People are precluded from raising this unlitigated theory on appeal. We agree.
“If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing. The People offered no such argument at that hearing and may not do so for the first time on appeal. To allow a reopening of the question on [such] basis . . . would defeat the purpose of Penal Code section 1538.5.” (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) Accordingly, we reject the People’s claim. (In re M.S. (1995) 10 Cal.4th 698, 727.) Were we to consider it on the merits, however, we would also reject it for reasons discussed below. (Ibid.)
As the People point out, it has been established that no warrant is required for a police officer to engage in a consensual encounter with a suspect. (In re Manuel G. (1997) 16 Cal.4th 805, 821; People v. Colt (2004) 118 Cal.App.4th 1404, 1410.) This does not mean, however, that the Fourth Amendment does not apply to the warrantless entry, search, and seizure that occurred here. (People v. Hughes, supra, 27 Cal.4th at pp. 327-329.) “It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place” where a Fourth Amendment exception may have rendered seizure of the evidence constitutionally proper. (Horton v. California (1990) 496 U.S. 128, 136.)
In the instant case, the record supports an inference that the officer initially engaged in the constitutionally permissible police tactic known as “knock and talk.” (People v. Colt, supra, 118 Cal.App.4th at p. 1410.) As support for their contention that the encounter was consensual, the People rely on the explanation of the circumstances constituting a consensual encounter as compared with a detention in In re Manuel G., supra, 16 Cal.4th at page 821. There the California Supreme Court explained that when an officer approaches a person on the street and asks a few questions, “[a]s long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual,” and not a detention for which the officer is required to have reasonable suspicion the person is or has recently been involved in criminal activity. (Ibid.)
The record includes no facts indicating that defendant invited, or otherwise consented to, the officer’s entry into the room or even consented to the door being opened by the other person in the room. Once the door was opened and defendant knew the person knocking and asking questions was a police officer, her confirmation that she was Kelly Price gave the appearance of a consensual encounter. A “knock and talk” or a consensual encounter in itself does not, however, constitute grounds for warrantless entry into a defendant’s residence. (People v. Colt, supra, 118 Cal.App.4th at pp. 1410-1411.)
The People concede that defendant did not give consent for the officer to enter her room. As noted in U.S. v. Shaibu (9th Cir. 1990) 920 F.2d 1423, “Judicial concern to protect the sanctity of the home is so elevated that free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority. [Citation.] . . . [T]his court established the following burden for the government: [¶] ‘The government must prove that consent was given. It must show that there was no duress or coercion, express or implied. The consent must be “unequivocal and specific” and “freely and intelligently given”. There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. “‘Courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact.’ [United States v. Page, 302 F.2d 81, 83-84 (9th Cir.1962) (footnotes omitted).] [¶] Although this court has acknowledged that ‘[u]nder some very limited circumstances . . . courts will infer consent from the cooperative attitude of a defendant,’ [citation], in fact this court has never sanctioned entry to the home based on inferred consent. [Citations.]” (Shaibu, supra, at p. 1426.)
The consensual element no longer was present once Officer Lantz asked defendant if she was on probation. He, in full uniform, stood at the only exit of the room. Further, Officer Lantz testified that, at that time, defendant was not free to leave. The facts indicate that the encounter here was more than a police officer merely approaching defendant on the street and asking her a few questions, as a consensual encounter has been described. (People v. Hughes, supra, 27 Cal.4th at p. 328; accord, Florida v. Royer (1983) 460 U.S. 491, 497-498.)
The next thing Officer Lantz did was to ask defendant if she had anything illegal. The officer testified that he did not advise her of her Miranda rights before he made the inquiry. She said there was a pipe on the night stand.
The People argue that defendant’s answer gave the officer probable cause to arrest defendant and therefore, his entry into the room was not in violation of the Fourth Amendment. Probable cause to arrest does not justify a warrantless entry into a person’s residence, however. (Minnesota v. Olson (1990) 495 U.S. 91, 95.) “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances [or valid consent], that threshold may not reasonably be crossed without a warrant.” (Payton v. New York (1980) 445 U.S. 573, 590, see also p. 576.) Defendant’s answer, alone, did not justify the entry into defendant’s room.
Defendant does not address the issue of whether the officer had probable cause to arrest her. Defendant correctly asserts, however, that the issue of probable cause to arrest was never raised by the People in the trial court, hence, was never litigated, and cannot now be raised on appeal, an issue we have discussed more fully above in this opinion.
Even assuming that the officer’s entry was permissible based on his probable cause to arrest defendant, any contention by the People that the search and seizure of evidence was lawful as incident to an arrest would fail. The record does not include substantial evidence that the officer arrested defendant before he completed the search and seizure of evidence. It is not enough that the officer had probable cause to arrest defendant, he had to have arrested her before conducting a search incident to the arrest. (Knowles v. Iowa (1998) 525 U.S. 113, 115-116.) “It is axiomatic that an incident search may not precede an arrest . . . .” (Sibron v. New York (1968) 392 U.S. 40, 63.)
Lack of Substantial Evidence as to Methamphetamine Seizure
Additionally, there is insufficient evidence in the record to support a finding that the search and seizure of the methamphetamine was lawful. Defendant points out that no evidence was presented to the trial court regarding how or where the officer found and seized the methamphetamine. In order to deny defendant’s motion to suppress, the trial court would have had to make a finding that the methamphetamine was lawfully seized. In the absence of evidence concerning the circumstances of the search and seizure of the methamphetamine, such a finding is not supported by substantial evidence. (People v. Hughes, supra, 27 Cal.4th at p. 327; People v. Williams, supra, 45 Cal.3d at p. 1301.) The denial of defendant’s motion to suppress as to the methamphetamine evidence must be reversed. (Williams, supra, at pp. 1301-1302.) The only charge to which defendant entered a no contest plea was to possession of a controlled substance, methamphetamine. Given that the methamphetamine seized as evidence of the charge must be suppressed, the judgment must be reversed and the cause remanded to allow defendant to withdraw her plea. (People v. Ruggles (1985) 39 Cal.3d 1, 13; People v. Miller, supra, 33 Cal.3d 545, 556.)
Having reached our decision for the reasons discussed above, we decline to address additional grounds upon which defendant contends the evidence was obtained in violation of her constitutional rights.
DISPOSITION
The judgment is reversed and the case is remanded with directions to allow defendant to move to withdraw her plea.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.
In the instant case, the People bore the burden of proving by a preponderance of the evidence that consent was freely and voluntarily given. (Bumper v. North Carolina (1968) 391 U.S. 543, 548; Pavao v. Pagay (9th Cir. 2002) 307 F.3d 915, 918-919.) They concede that they did not meet their burden: there is no evidence in the record that defendant invited the officer into the room or stated that she consented to the officer’s entry. It is not enough that she did not object when the officer stepped into her room. The People’s burden “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (Bumper, supra, at pp. 548-549.)