People v. LeBlanc

Page 195

70 Cal.Rptr.2d 195

60 Cal.App.4th 157, 97 Cal. Daily Op. Serv. 9579,

97 Daily Journal D.A.R. 15,269

The PEOPLE, Plaintiff and Respondent, v. Junius LeBLANC, Defendant and Appellant.

No. B108412.

Court of Appeal, Second District, Division 5, California.

Dec. 19, 1997.

Ronnie Duberstein, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Defendant, Junius M. LeBlanc, appeals after he was convicted of cocaine possession following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5 and his ensuing nolo contendee plea. In the published portion of this opinion, we: determine he has timely filed a notice of appeal; reverse the order denying the motion to suppress evidence; and remand for the trial court to decide the consent and other issues.

II. TIMELINESS OF THE APPEAL

The parties raise the question of whether the notice of appeal was timely filed. Defendant was sentenced to prison on September 18, 1996. The notice of appeal was given to prison officials for mailing on November 17, 1996, a Sunday. This was 60 days after the sentencing of September 18, 1996. Hence, giving the notice of appeal to the "Dorm Officer" of the unit in which defendant was incarcerated constituted constructive filing of the notice of appeal. (In re Jordan (1992) 4 Cal.4th 116, 129-130, 13 Cal.Rptr.2d 878, 840 P.2d 983; People v. Slobodion (1947) 30 Cal.2d 362, 365-368, 181 P.2d 868.) The fact the envelope containing the notice was addressed to the clerk of the Court of Appeal is irrelevant. (People v. Griggs (1967) 67 Cal.2d 314, 317-318, 61 Cal.Rptr. 641, 431 P.2d 225; People v. Jackson (1965) 62 Cal.2d 803, 805-806, 44 Cal.Rptr. 452, 402 P.2d 140; People v. Johnson (1964) 61 Cal.2d 843, 846, 40 Cal.Rptr. 708, 395 P.2d 668.)

III. SUPPRESSION OF EVIDENCE ISSUE

A. Procedural Aspects

Prior to pleading nolo contendre, defendant moved to suppress evidence pursuant to Penal Code section 1538.5. ¹ The trial court found all of the evidence seized was admissible. Defendant argues the section 1538.5 motion should have been granted. As will be noted, we conclude that the trial court's findings warrant the admission into evidence of two cocaine pipes initially observed by the two officers while defendant was being arrested. However, three other categories of evidence were seized during the search of the motel room. The officers seized four additional cocaine pipes. Also, the officers seized three cocaine rocks. Moreover, defendant confessed. As to the remaining four pipes, the three rocks of cocaine, and the confession, the trial court's findings do not at present permit their admission into evidence given the limitations imposed by the Fourth Amendment of the United States Constitution on the power of state authorities to search a motel room without a search warrant. However, as we will note, we cannot order the exclusion of the four pipes, three cocaine rocks, and confession at present because the trial court needs to make additional factual findings.

B. State of the Evidence and the Trial Court's Findings

When we apply the applicable standard of review (Ornelas v. United States (1996) 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911; People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221; People v. Manning (1973) 33 Cal.App.3d 586, 602-604, 109 Cal.Rptr. 531), the following were the facts. Uniformed Long Beach Police Officers Robert Smith and Jerry Gibbs drove in a marked cruiser to the Avalon Motel in order to serve two misdemeanor arrest warrants on defendant. Defendant had previously been arrested by Officer Smith for a narcotics related offense. Defendant had "numerous" contacts with Officer Smith. Officer Smith had last spoken to defendant a"[c]ouple of weeks to a month" prior to the arrest at the Avalon Motel. Officer Smith "knew" defendant was involved in narcotics activity. The two officers went to room 12 and knocked on the door. Defendant answered the door. Defendant was advised there were two existing arrest warrants. Then both officers, while standing in the doorway of the motel room, handcuffed defendant. While standing in the doorway, Officer Smith saw what he recognized to be a glass cocaine pipe on a dresser on the west wall of the room. The dresser was approximately five feet from Officer Smith as defendant was being handcuffed. Defendant was walked out to the area in front of the apartment by Officer Smith. While standing outside the motel room, defendant consented to a search of the premises. While defendant was consenting, Officer Gibbs remained in the doorway so as to watch the other individuals in the motel room. While remaining in the doorway watching the other occupants of the motel room, Officer Gibbs saw what he believed to be contraband in the back of the closet on a ledge. Officer Gibbs made this observation while defendant was being handcuffed. The officer described the contraband as a "rock-like object." Officer Gibbs then saw a glass cocaine pipe. During the search of the motel room, the officers recovered six glass cocaine pipes. Also recovered was a rock of cocaine under the carpet and a shoe belonging to defendant which also contained one of the six glass cocaine pipes. Another cocaine rock, the one observed by Officer Gibbs when he was standing in the door, was found on a ledge. Moreover, a rock of cocaine was recovered when Kurt McGarry, another person in the room, stood up after defendant consented to the search. After waiving his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 469-473, 86 S.Ct. 1602, 1625-1627, 16 L.Ed.2d 694, defendant later confessed to the possession of the contraband.

Defendant also presented testimony. This testimony was at odds with some of that presented by Officers Smith and Gibbs. Mr. McGarry, a friend of defendant, testified to being present during the arrest and search on May 16, 1996. Mr. McGarry was on parole for commercial burglary. He had been convicted of commercial burglary in Long Beach in 1994. He as also convicted of a non-specified felony in Orange County on August 6, 1992. Room 12 was rented by defendant, according to Mr. McGarry. Prior to the arrival of the police, Mr. McGarry did not see any drugs of any kind or any cocaine pipes. Mr. McGarry indicated that the police arrived and pushed their way 3 or 4 feet into room 12. Defendant was handcuffed and placed in a chair. The officers advised defendant concerning the misdemeanor warrants. Mr. McGarry was asked why he was in the room. Officer Smith indicated Mr. McGarry's explanation was unacceptable. Officer Smith said, " 'Come on, you can come up with something better than that.' " Mr. McGarry then consented to a search of the premises. Mr. McGarry was then searched and told to go stand by the door. After some rock cocaine was discovered, Mr. McGarry was arrested. Mr. McGarry never heard defendant consent to a search of the room.

When Mr. McGarry was cross-examined, he was impeached in several areas in addition to his prior convictions. He claimed to have seen defendant 15 to 20 times per year in the preceding 5 years. However, Mr. McGarry admitted that he had been in prison custody during part of the preceding five years. During that time period, Mr. McGarry did not see defendant. Further, he testified that prior to the arrival of the police there was no conversation among the persons in room 12. However, he then changed his testimony and admitted there was discussion among the occupants of the room prior to the arrival of the police. Further, Mr. McGarry testified he had never been convicted for a drug related offense. However, on June 30, 1989, he was convicted of a violation of Health and Safety Code section 11365.

Defendant also testified in connection with the suppression of evidence motion. He was completely unaware of the drugs and drug paraphernalia in the room. He had resided in the room for five or six days at the time of his arrest. However, defendant did not know how the contraband and the cocaine pipes got into the room. He speculated that they could have been left by others in "cracks and crevices" or compartments in the motel room. When pressed on cross-examination, defendant admitted that he never saw "any unusual bulges" in the areas where he walked during the five days he had been living in the motel. Defendant saw Officer Smith approach room 12. As Officer Smith was looking through a window, defendant said, " 'What's up, dog?' " Officer Smith responded, " 'Marco, I want to talk to you.' " Defendant then immediately opened the door and said, " 'What's up.' " One of the officers said, " 'Can we talk to you inside.' " Defendant responded: " 'No, what do you want to talk to me inside for?' " One of the officers said, " 'You know you've got warrants.' " Defendant responded, " 'You were the one that told me about the warrants, Officer Smith.' " Defendant explained that he had previously spoken to Officer Smith about the arrest warrants. Defendant explained his reason for refusing to consent to the officers entering the room for the following reason: "Because what reason did he have, you know, to want to come in my room and talk to me when all he has to do is ask me to step outside and talk to me. So something fishy right there to me, you know, just didn't seem right. He never was like that before towards me." The officers grabbed defendant's arms and handcuffed him. Defendant was pushed into the room and placed in a chair. Officer Smith then walked straight to Mr. McGarry, who was searched and questioned. At no time did defendant consent to the search of the motel room....