Bounmy v., In re, F017956

Page 557

17 Cal.Rptr.2d 557

Previously published at 14 Cal.App.4th 494, 19 Cal.App.4th 904, 24 Cal.App.4th 778, 29 Cal.App.4th 931

14 Cal.App.4th 494, 19 Cal.App.4th 904, 24 Cal.App.4th 778,

29 Cal.App.4th 931

In re BOUNMY V., a Person Coming Under the Juvenile Court Law The PEOPLE, Plaintiff and Respondent, v. BOUNMY V., Defendant and Appellant.

No. F017956.

Court of Appeal, Fifth District, California.

March 22, 1993.

Rehearing Denied April 19, 1993.

Review Granted June 24, 1993.

Review Dismissed and Cause Remanded Nov. 23, 1994.

[24 Cal.App.4th 781] Monica Lynch, Sacramento, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael Weinberger and Joel E. Carey, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

THAXTER, Associate Justice.

Bounmy V., a minor, was found to have violated Health and Safety Code section 11351.5 (possession of cocaine base for sale). Pursuant to Welfare and Institutions Code section 725, subdivision (b), he was adjudged a ward of the court and released on probation. On appeal Bounmy urges that the juvenile court erred when it denied his motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1. We affirm.

FACTS ¹

On the evening of April 12, 1992, Officer Scott Blon of the Modesto Police Department was conducting a narcotics surveillance in the area of 1120 Roselawn when he observed a gold-colored Chevrolet parking in the carport at 1116 Roselawn. Bounmy lives at 1116 Roselawn, which is one unit of a duplex. The carport is adjacent to the duplex building, and its roof is attached to the building and supported on the outer edges by two posts. The two ends of the carport are completely open. The remaining side, which fronts the street, is about sixty percent covered with a fence attached to the two posts.

The Chevrolet parked in the outermost stall of the carport. Initially, there were three to five persons inside the car who entered and exited the car some five or six times. One person always stayed with the vehicle.

Later, the comings and goings stopped and the four persons remaining began a pattern of activity that aroused Officer Blon's suspicions. The Chevrolet's lights were flashed at three vehicles driving on Roselawn. Each time, the individual sitting in the right front passenger seat (later identified as Somkhith S.) also signaled to the approaching vehicles with gestures and whistles. Of the three cars signaled, two cars stopped, the first and the third. Upon stopping, the vehicle's occupant talked briefly to Somkhith S., walked to the driver's side of the Chevrolet, spoke briefly with the driver (later identified as Bounmy), and then left. Officer Blon did not see any exchange between the vehicles; he could not hear what was said. The driver of the first car was recognized by the officer but the record does not reveal why the identity of this person is significant. The first car was subsequently stopped and searched. No drugs were found.

Officer Blon suspected the four youths were selling narcotics and called for assistance. Officer Helton, a uniformed officer, responded. Helton approached the Chevrolet and ordered the occupants out at gunpoint. The four youths were told they were under arrest. Before the four were ordered out of the car, Officer Blon was unable to identify the car's occupants, although he had an "idea" who they were. After the individuals were out of the car, Officers Blon and Helton immediately recognized all four from prior contacts. Officer Blon was fairly certain Bounmy was on probation and subject to a search condition. Officer Blon knew Somkhith S. was on probation. Officer Blon instructed Officer Helton to search the Chevrolet. Helton found four pieces of rock cocaine under the seat in the right rear of the vehicle.

Bounmy was, in fact, on probation and subject to a search condition.

The Roselawn area is a high drug-trafficking area. Officer Blon has participated in numerous surveillance actions in the area and has sold narcotics in the area while working undercover.

DISCUSSION

I. STANDARD OF REVIEW

In reviewing the denial of a motion to suppress evidence, the "trial court's factual findings relating to the challenged search or seizure, 'whether express or implied, must be upheld if they are supported by substantial evidence.' [Citation.]" (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.) Nevertheless, the appellate court exercises its independent judgment to measure the facts, as found by the trial court, against the constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

An appellate court is to review the record only to determine if substantial evidence supports the conclusion of the officer that the defendant had committed a crime. It must then exercise its independent judgment to decide whether the officer's subjective belief was objectively reasonable under the Constitution. (People v. Gabriel (1986) 188 Cal.App.3d 1261, 1265, 233 Cal.Rptr. 769.)

II. FOURTH AMENDMENT ISSUES

Bounmy challenges the search of the Chevrolet on two grounds. First, he contends the carport was part of his residence and therefore the officers' warrantless entry into the carport violates the Fourth Amendment of the Constitution. Second, he contends Officer Blon lacked probable cause to arrest him and thus the discovery of the cocaine base is tainted by illegal police activity and should have been excluded.

A. Warrantless Entry of Carport

The warrantless entry of a home, either to arrest the occupant or to conduct a search, is unreasonable per se in the absence of exigent circumstances. (Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.) Bounmy contends, as he did below, that the officers violated this rule when they entered the carport to arrest him. In ruling on the motion, the juvenile court implicitly rejected the argument.

Bounmy relies primarily on In re Christopher J. (1980) 102 Cal.App.3d 76, 162 Cal.Rptr. 147. In Christopher J. a minor was found to have committed burglary when he entered a carport attached to a dwelling house with intent to steal. On appeal the minor argued the carport was not a "building" within the meaning of Penal Code section 459. The carport was described as "approximately 18 feet by 18 feet, walled on 1 side and roofed, enclosed in the rear with a half wall and open on 2 sides." (In re Christopher J., supra, at p. 77, 162 Cal.Rptr. 147.) A divided appellate court rejected the minor's argument:

"Viewing the evidence in a light most favorable to the judgment, as we must, it is presumed that the carport was attached to and an integral part of the dwelling house. As such, even under the common law, an entry would constitute a burglary." (102 Cal.App.3d at pp. 78-79, 162 Cal.Rptr. 147.)

The Christopher J. court went on to review the legislative history of California's burglary statute, noting that its language had been extended and broadened to include buildings of any kind and used for any purpose. (102 Cal.App.3d at p. 79, 162 Cal.Rptr. 147.) The court concluded that

"... with respect to a carport appurtenant to the dwelling house, the requirement of a structure with four walls is satisfied by the dwelling house itself and it is unnecessary to find, as minor contends, that the carport alone satisfies the definition of a separate 'building.' An entry into such portion of a dwelling house is a sufficient entry to constitute the offense of burglary." (Id. at p. 80, 162 Cal.Rptr. 147.)

We need not decide whether we agree with the court's reasoning in In re Christopher J., because even if correctly decided that case does not settle the issue presented here. The reasons behind the Legislature's distinction between burglaries of inhabited dwelling houses and those of other structures are not the same as those behind the rule barring warrantless entries of a home by police to arrest or search.

"... [T]he Legislature's distinction between first and second degree burglary is founded upon the risk of personal injury involved. 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation.... The laws are primarily designed, ... to forestall the germination of a situation dangerous to personal safety; and thus the higher degree of the burglary law is intended to prevent those situations which are most dangerous, most likely to cause personal injury.' [Citations.] Accordingly, various structures, including apartments and hotel rooms, have been held to fall within the definition of an 'inhabited dwelling' [citations], and appellate courts have traditionally analyzed first degree burglary 'in terms of whether the dwelling was being used as a residence....' [Citation.]" (People v. Wilson (1989) 208 Cal.App.3d 611, 615, 256 Cal.Rptr. 422, emphasis in original.)

The Payton/ Ramey rule, on the other hand, is concerned with implementing the Fourth Amendment's protection of an individual's privacy. (Payton v. New York, supra, 445 U.S. at p. 589, 100 S.Ct. at 1381; People v. Ramey, supra, 16 Cal.3d at pp. 273-275, 127 Cal.Rptr. 629, 545 P.2d 1333.)

Neither party cites any Fourth Amendment cases involving carports, and we have found none. Bounmy does cite People v. Morgan (1987) 196 Cal.App.3d 816, 242 Cal.Rptr. 140, but that case is clearly distinguishable. In Morgan the court held that police acted improperly when, lacking probable cause, a search warrant or exigent circumstances, they entered a garage attached to a dwelling house. In gaining entry the officers raised a closed, but unlocked, garage door. (Id. at p. 819, 242 Cal.Rptr. 140.) The carport in the present case was not enclosed and the officers merely stepped through one of the two...