People v. Romeo

240 Cal.App.4th 931

193 Cal.Rptr.3d 96

The PEOPLE, Plaintiff and Respondent

v.Joe Vincent ROMEO, Defendant and Appellant.

A140146

Court of Appeal, First District, Division 4, California.

Filed September 28, 2015

Counsel for Defendant and Appellant: Donn Ginoza, by appointment of the Court of Appeal under the First District Appellate Project's Independent-Case System.

Counsel for Plaintiff and Respondent: Kamala D. Harris, Attorney General of California, Gerald A. Engler, Senior Assistant Attorney General, Jeffrey M. Laurence, Supervising Deputy Attorney General, Na'Shaun Neal, Deputy Attorney General.

Opinion

Streeter, J.“ ‘[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.’ [Citations.] Likewise, a garage that is attached or adjacent to a home may give rise to a legitimate expectation of privacy therein. [Citations.] Under the Fourth Amendment, a warrantless search of such an area is unreasonable per se unless it falls within a recognized exception to the warrant requirement, for example, where consent to the search has been given.” (People v. Robles (2000) 23 Cal.4th 789, 795, 97 Cal.Rptr.2d 914, 3 P.3d 311 (Robles ).)

In this case, appellant Joe Vincent Romeo (Appellant) was living in a garage attached to the home of two probationers. Police conducted a warrantless search of the home, detaining Appellant in handcuffs during the search, and found methamphetamine in the garage. While detained, Appellant admitted the drugs were his. He later pled guilty to possession (Health & Saf.Code, § 11377, subd. (a) ) and now appeals from the denial of his motion to suppress. The appeal presents the question whether the justification for the search-- advance consent, based on the probation status of Appellant's hosts--overcomes the presumption of unreasonableness. For the reasons explained below, we conclude that, on this record, it does not. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2013, Appellant was charged by complaint with possession of a controlled substance (methamphetamine) (Health & Saf.Code, § 11377, subd. (a) ) and misdemeanor being under the influence of a controlled substance (methamphetamine) (Health & Saf.Code, § 11550, subd. (a) ). On August 22, 2013, he filed a motion to suppress evidence pursuant to Penal Code ¹ section 1538.5, arguing that both the search of his living quarters and the seizure of his person had been unreasonable and violated his rights under the Fourth Amendment. He filed a written motion to suppress both the items found in the garage and his statement acknowledging they were his. The motion was very brief, but did raise a specific challenge to the search team's basis for conducting a probation search, citing People v. Harvey (1958) 156 Cal.App.2d 516, 319 P.2d 689 (Harvey ) and People v. Madden (1970) 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971 (Madden ), among other authorities. The motion was heard before a magistrate concurrently with the preliminary examination on August 29, 2013.

At the hearing, Martinez Police Officer Dirk Miller testified that on November 8, 2012, at approximately 10:00 a.m., he and Sergeant Glen Walkup, along with six other officers, performed a warrantless probation search of 628 Walnut Avenue in Martinez (628 Walnut Avenue), the home of Randy Mills and Julie Bolstad. Officer Miller testified that Mills and Bolstad were the targets of the probation search. Nothing in his testimony, however, indicated whether he or anyone else on his search team had grounds to suspect criminal activity was taking place at 628 Walnut Avenue. The sole justification for the search, as Officer Miller explained it, was that Mills and Bolstad were probationers subject to search.

At the beginning of his testimony, Officer Miller testified that he knew Mills and Bolstad were “on probation with [a] search clause” and that he “confirmed” their probation status using a “countywide computer system called ARIES.”² The magistrate sustained hearsay and lack of foundation objections to this testimony and granted a motion to strike. Following these rulings, the prosecutor posed a series of preliminary questions about the basis of Officer Miller's knowledge. Without providing any detail, Officer Miller testified that, prior to the search, he had unspecified “personal contact with” Mills and Bolstad and he was “familiar” with them.³ Officer Miller also testified that he uses ARIES routinely in the course of his duties, that he has been trained in the use of ARIES, and that “you can get probation information” from ARIES, which “is what I did in this case.” In view of this further testimony, and over renewed objections, the magistrate allowed Officer Miller's testimony that he had “personal knowledge” Bolstad and Miller were on probation subject to a probation search clause and that he had confirmed their probationary status using ARIES.

After explaining why he believed Mills and Bolstad were on probation and subject to search, Officer Miller summarized what happened upon the search team's arrival at 628 Walnut Avenue as follows. Sergeant Walkup knocked and announced the team's presence. Officer Miller then saw Bolstad approach the front door from the direction of the interior door leading to the garage. When she opened the front door, Officer Miller saw Appellant in the bathroom; Officer Miller had known him for his “whole career” (12 years). The officers entered with their guns drawn, handcuffed Appellant and Bolstad, and escorted them to the driveway. Officer Miller testified to the effect it is standard procedure in his department to handcuff and detain anyone found on the premises when conducting a search. “It's our--the way we do things, we handcuff everybody that's involved.”

While performing a protective sweep through the house, which took some five to 10 minutes, police located Bolstad's brother and father in a back bedroom. The officers removed them and began the probation search. Mills was not present in the house when the officers arrived, but he was located about a block away and transported by police to his home about half an hour after the search began, where he was detained with the others. Within the first 10 minutes, the officers located hypodermic needles in a bedroom that had been pointed out by Bolstad as the one she shared with Mills. The needles were found in a dresser drawer next to the bed, in the closet.

Officer Miller also searched the attached garage because “the whole family lived in [the house] and had access to [the garage].” As Officer Miller entered the garage, he noticed it was arranged as living quarters would be. “It had a couch in it; had a large desk with a TV and computer on it.” Officer Miller observed, in plain view on top of the desk, a clear Ziploc baggie containing 2.444 grams of methamphetamine. He also recovered a small amount of marijuana, wrapped in cellophane, from a cigarette box on top of the desk, as well as six hypodermic needles from a toolbox in the garage. The drugs were found approximately 45 minutes after the search began. Officer Miller then went outside to discuss the discovered contraband with the detainees. The probation search lasted for approximately an hour all told.

During the search, Sergeant Walkup watched the detainees in the driveway. After Walkup overheard other officers discussing the methamphetamine found in the garage, he Mirandized⁴ Appellant, Bolstad and Mills and asked them about the drugs. Appellant told Walkup he was staying in the garage and admitted the methamphetamine, marijuana and hypodermic needles found in the garage were his.⁵ Walkup reported Appellant's admission to Officer Miller. After observing Appellant more closely, Officer Miller suspected he was under the influence of a controlled substance because he appeared nervous and spoke rapidly. Officer Miller arrested Appellant and drove him to the police station. At the police station, Officer Miller conducted several sobriety tests, and Appellant failed them all. A phlebotomist called to the jail drew a sample of Appellant's blood. The phlebotomist had difficulty drawing the blood because Appellant's veins were collapsed from years of shooting drugs. Appellant's blood tested positive for methamphetamine and opiates.

At the conclusion of the suppression hearing, defense counsel challenged the officers' warrantless search of the residence at 628 Walnut Avenue as unlawful, arguing that the prosecution had failed to establish the existence and scope of the probation search condition. Defense counsel further contended that Appellant's detention was a de facto arrest without probable cause because he was handcuffed for 45 minutes during the probation search. The prosecution countered that the testimony of Officer Miller established the existence and scope of the probation search condition because he testified he had personal knowledge of the probationers' search conditions, and the ARIES database confirmed their current status as probationers. The prosecution also argued that (1) Appellant's privacy rights in the shared common areas of their residence were limited because he lived with probationers subject to warrantless search, and (2) the officers were allowed to briefly detain nonprobationers during a residential probation search.

The magistrate denied the suppression motion and held Appellant to answer on the complaint. Her full explanation was as follows: “I don't believe that this search vis-à -vis Mr. Romeo was improper and that he was not detained for a long period of time.” She did not specifically address or make any express findings concerning Officer Miller's knowledge of the existence and scope of probation search conditions justifying a warrantless search of 628 Walnut Avenue. A renewed motion to suppress, filed with the superior court along with a section...