People v. Kay

1

THE PEOPLE, Plaintiff and Respondent, v. DIMITRIX JEROME KAY, Defendant and Appellant.

B330501

California Court of Appeals, Second District, First Division

June 28, 2024

NOT TO BE PUBLISHED

Appeal from order of the Superior Court of Los Angeles County No LA091812, Gregory A. Dohi, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Melanie Dorian, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

In November 2019, a burglary suspect fled from police and took refuge in the attic of the house in which appellant Dimitrix Jerome Kay (Kay) then lived. Officers detained and interviewed Kay while they worked to capture the burglary suspect.

Police lacked a search warrant for the house, and the officer interviewing Kay requested consent to search his bedroom. The officer twice advised Kay that he was free to leave and stated expressly that Kay's ability to leave was not conditioned on providing the requested consent. Kay nonetheless consented to the search of his bedroom, where officers discovered evidence of identifying information theft (Pen. Code, § 530.5).^[1] The district attorney subsequently filed charges against Kay.

Kay moved to suppress the evidence seized from his bedroom arguing that his consent was the product of an unconstitutional detention. The trial court denied the motion, concluding that "even if [Kay's] detention was unjustifiably long," his "consent did not result from it" in light of the interviewing officer's statements to Kay that he was free to leave.

Kay now asks us to reverse the court's order denying his suppression motion. Like the trial court, however, we conclude that Kay's consent to the search was sufficiently attenuated from any Fourth Amendment violation. We therefore affirm.

FACTUAL SUMMARY AND PROCEDURAL HISTORY^[2]

In the early morning hours of November 1, 2019, a man resembling David Allen (Allen)-the boyfriend of Kay's mother and a suspect in a "hot prowl" burglary-attempted to evade police capture by hiding in the attic of the Sherman Oaks, California house where Kay resided. In an effort to apprehend the suspect, officers ordered all occupants of the house, including Kay, to exit the residence.

The officers briefly detained Kay and then directed him to an area adjacent to the house, where he and the other occupants remained for the next 30 to 90 minutes while the 10 to 12 officers already on the scene waited for additional officers, a K-9 unit, and a police helicopter to assist them in forcing the suspect from the attic.^[3] Kay was barefoot and clothed in only a jockstrap and bathrobe during the incident; however, he was not handcuffed or otherwise physically restrained.

After the 30- to 90-minute period, Officer Brandon Purece approached Kay, who was walking around and smoking a cigarette, for an interview. During the approximately nine-minute interview, Kay stated that his mother (also a suspect in the burglary) had left several pieces of mail and other evidence of identity theft in the house, and that he had collected the evidence in his bedroom. Officer Purece, who did not possess a warrant to search the house, requested Kay's consent to search his bedroom. Kay consented to the search and left the scene. Officers then searched Kay's bedroom and seized the identity theft-related evidence.

The district attorney subsequently charged Kay with identifying information theft with a prior, in violation of section 530.5, subdivision (c)(2). Kay moved to suppress the evidence seized from his bedroom, arguing that his consent to the search was invalid because it resulted from an unconstitutional, unduly prolonged detention.

At the suppression hearing, the prosecution maintained that Kay had validly consented to the search. In support of this position, the prosecutor offered testimony from Officer Purece, as well as body camera video footage capturing the interview during which Kay provided his consent. The footage reflects that- although he did not do so at the outset of the interview-Officer Purece twice advised Kay that he was free to leave the scene before Kay consented to the search:

"[Officer Purece]: Umm[,] [l]et me ask you this, I know you've got a room here, OK? . . . [L]et me start up with this, I already know who you are[.] I know your aunt and I know your mom.

"[Kay]: Yeah, I already know you know. I'm going to be completely honest with you. "[Officer Purece]: I appreciate that.

"[Kay]: . . . I just want to be able to leave with my friend right now and go to his house because I'm barefoot in a jockstrap.

"[Officer Purece]: Come here, let me, I just want to respect your privacy-your family is right there.

"[¶] . . . [¶]

"[Officer Purece]: I understand that your aunt, your mom, [Allen], there's a lot of issues that continue to go on here, OK? [S]o what I'm going to ask you, is there anything in your room? I don't care about little nonsense, I'm not looking for that. What I'm looking for is-am I going to find stacks of mail? Am I going to find credit cards? Anything like that when we go up and search? Do you have anything like that?

"[Kay]: In my room? There, to be . . . uhhh . . . Do you want me to be . . . I mean . . . uhh .... The mail that's in there is not mine and it's stuff that I was trying to get rid of because of all of the stuff my mom left behind. I'm being honest with you. I just haven't been able to get rid of it all.

"[¶] . . . [¶]

"[Officer Purece]: OK, so there's a stack of mail in your room, I mean is that kind of what we're getting at-is that what you're getting at?

"[Kay]: No, there's not . . . I don't know what's in my room to be quite honest with you.

"[Officer Purece]: Hold on hold on look, [Kay], we're having a one-on-one conversation, you're not going to jail.

"[Kay]: How am I not going to be going to jail? "[Officer Purece]: If you're honest with me and you tell me what's going on here, OK number one. "[Kay]: OK. "[Officer Purece]: Who's in that attic right now?

"[Kay]: A guy that I barely know that's [my aunt's] friend[,] Ash (phonetic)[.] I barely know him. Do you want me to be real with you? There is mail in my room. I've been trying to get rid of it. It's all been left over by my mother and [Allen]. You don't know the amount of stuff I've been trying to get rid of because of [sic] they've left there. It's been my job to get rid of, I've been waiting for you guys to come ....

"[¶] . . . [¶] "[Officer Purece]: OK, do you have anything in your bag right now? Any profiles? "[Kay]: He already-The cop searched my bag.

"[¶] . . . [¶] "[Kay]: There's nothing in my bag.

"[¶] . . . [¶] "[Kay]: Everything is mine in the bag, yes. Am I allowed to go? "[Officer Purece]: OK, look, yes, OK. [T]hat's why we're having this conversation.

"[Kay]: OK. Thank you. Thank you. I've been trying to change my life and it's hard living in this fucking environment.

"[¶] . . . [¶]

"[Kay]: That's why I want to go with my friend Robert, to his place[.] [H]e lives at [address]. [I]f you have any questions or would like to ask me anything, you're more than welcome to stop by there.

"[Officer Purece]: OK I appreciate that. OK, so cool if we just go up and get that stuff out of your room? Just so that we can clean up your room, that way you don't have to worry about anything else? Are you OK with that?

"[Kay]: If I can leave.

"[Officer Purece]: Yeah-I'm not, that's not a condition of you leaving. I'm not-you can leave right now, I'm simply having a conversation with you.

"[Kay]: Yeah, yeah, yeah that's cool, yeah.

"[Officer Purece]: I'm trying to help you out, you're trying to help me out, OK, it's a mutual thing.

"[Kay]: Yeah, yeah[.] Just go and clear everything out, like you know?

"[¶] . . . [¶] "[Kay]: I'll do anything I can do to help you guys....

"[¶] . . . [¶] "[Kay]: I'll do anything in my power to help you find [Allen]. "[Officer Purece]: I appreciate that. That's our biggest concern. Because he's a dangerous guy.

"[¶] . . . [¶]

"[Kay]: Dude, if I have to fucking be a fucking confidential informant . . ., I don't give a fuck, I will do it. Because I want [Allen] fucking in jail."

Kay did not testify at the hearing, nor did he introduce any other evidence in support of his motion to suppress.

After receiving Officer Purece's testimony and reviewing the body camera footage, the trial court denied the suppression motion, explaining:

"Even if there was a detention in this case, even one that was unnecessarily prolonged, the defense has failed to show that the consent given by Mr. Kay somehow resulted from the detention.... [A]t two separate places[,] Mr. Kay is told, 'You're free to go.' And he's specifically told, 'You can leave right now.' His consent is not a condition of his being permitted to leave. [¶] Not only do the words, themselves, support this interpretation but the overall tone of the conversation is, generally speaking, pretty friendly. Mr. Kay himself repeatedly said . . . he wants to help the police. It's not a situation in which his will was somehow overcome....

"[¶] . . . [¶]

" . . . Here, we have explicit consent on more than one occasion from somebody who was told, 'You're free to go anytime you want to.' [¶] So even if the detention was unjustifiably long, the consent did not result from it, and I don't think the detention was unjustifiably long anyway. [¶] So the motion to suppress the evidence is respectfully denied."

Following denial of the motion, Kay pleaded no contest to identifying information theft with a prior. The trial court suspended...