THE PEOPLE v. DANIEL PATRICK REDMOND

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DANIEL PATRICK REDMOND, Defendant and Appellant.

2d Crim. No. B230354

Decided: October 24, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Daniel Patrick Redmond appeals his conviction by plea to possession for sale of marijuana (Health & Saf.Code, § 11359), entered after the trial court denied appellant's motion to suppress evidence (Pen.Code, § 1538.5).   Appellant was granted probation with 180 days county jail.   We affirm.

Facts and Procedural History

On February 4, 2009, Ventura County Sheriff Deputy Jason Robarts executed a warrant to search a house at 2403 Meralda Avenue, Simi Valley for child pornography allegedly possessed by Lee Robertson.   Deputy Robarts knocked on the front door and announced, “We're with the sheriff's department.   We have a search warrant.”   The search team included sheriff's deputies, the FBI, and the Simi Valley police,

Appellant answered the door and was asked to sit on a couch.   Deputy Robarts said he would explain why they were there after they completed a protective sweep of the house.   Robertson, Joe Plaster, and Roxanne Basowski were escorted to the living room.

During the protective sweep, Deputy Roberts detected a strong odor of marijuana and saw marijuana and a scale in the master bedroom.   Appellant said the master bedroom was his and that Robertson and Plaster rented the other bedrooms.   Appellant also told the officers that he had just smoked a “bowl” of marijuana.   This, to some extent, shifted the officer's focus.

Deputy Robarts asked, “Do you have more marijuana in there?”   Appellant said that he had marijuana in his closet and escorted the deputy to the master bedroom.   Opening the closet, appellant retrieved a backpack and left the closet door open.   Appellant removed two jars of marijuana from the backpack, handed the jars to Deputy Robarts, and asked, “Did you find the guns?”   This also, to some extent, shifted the officer's focus.

Concerned about officer safety, another officer looked in the closet and found a loaded handgun, a loaded M16 rifle, and three more rifles.   Inside the closet was a safe and another backpack with plastic baggies protruding out.

Officer Robarts asked, “Would you mind opening the safe?”   Appellant walked over and opened the combination safe.   Inside the safe was a bag with $9,000 cash and $400 cash in a container.

Deputy Robarts and appellant went outside to discuss the weapons and marijuana.   Appellant stated that he “sells and gives marijuana” to friends and was sometimes paid with dinners or food.

At the hearing on the motion to suppress evidence, Deputy Robarts testified that appellant was cooperative and voluntarily opened the safe.   Appellant claimed that the officers pounded on the front door and ordered him to show them the marijuana.   Appellant said that he “was helpless and afraid” and did what he was told.

The trial court found that consent was a “very close issue․  Actually, what I think happened is I think the officers thought they had consent, and I think the defendant felt he had no choice.   So I'm ruling in the defendant's favor on the issue of consent.”

The trial court denied the motion to suppress evidence on the ground the officers had probable cause to “go into the [bed]room to secure the premises and to go into the closet.   And based on information that they had and what they had seen, I think they had probable cause to search the closet and the safe.”

Discussion

On appeal, we defer to the trial court's factual findings which are supported by substantial evidence and independently determine whether, on the facts so found, the search was reasonable under the Fourth Amendment.  (People v. Glaser (1995) 11 Cal.4th 354, 362.)   The denial of a motion to suppress will be affirmed “if the ruling is correct on any theory of law applicable to the case, even if the ruling was made for an incorrect reason.  [Citation.]”  (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)

Appellant claims that the search violated his Fourth Amendment rights because the search warrant was for child pornography allegedly possessed by Lee Robertson.   Appellant, however, has not met his burden of proving that the search exceeded the scope of the warrant.  (People v. Reves (1990) 223 Cal.App.3d 1218, 1224;  United States v. Taylor (6th Cir.1989) 882 F.2d 1018, 1032–1033.)  “A search warrant for the entire premises of a single family residence is valid, notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of a residence.  [Citation.]”  (United States v. Ayers (9th Cir.1991) 924 F.2d 1468, 1480.)

Before the motion to suppress was argued, appellant withdrew his motion to traverse the warrant, waiving any claim that the warrant lacked probable cause or was overbroad.   The search warrant was for child pornography and “[a]ny documents and records regarding the ownership and/or possession of the searched premises.”   It was not limited to Robertson's bedroom or common areas.

Protective Sweep and Plain View Seizure

It is settled that an officer, in executing a warrant, may conduct a protective sweep of those areas of the house in which the officer reasonably suspects a person may be hiding.  (Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276, 281].)   Officer Robarts detected a strong odor of marijuana and saw the marijuana, the scales, and a large bong in the master bedroom during the protective sweep.   The items were in plain view and lawfully seized.  (People v. Gallegos (2002) 96 Cal.App.4th 612, 622–623.)  “ ‘When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently as the result of the officers' efforts.’  [Citation.]”  (People v. Diaz (1992) 3 Cal.4th 495, 563.)

Search of Closet and Safe

The argument that the search of the closet and safe exceeded the scope of the warrant fails as a matter of law.  “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.   Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.”   (United States v. Ross (1982) 456 U.S. 798, 820–821, fn. omitted [72 L.Ed.2d 572, 591].)

Here the warrant was for child pornography and “documents and records regarding the ownership and/or possession of the searched premises.”   In executing the warrant, the officers were authorized to search any place in the house where documents could reasonably be stored.  “It is not unusual for documents to be stored in drawers or closets, on shelves, ․ or even in duffle bags.   Safes are often used precisely for the purpose of storing documents․  The areas searched were, without exception, large enough to contain such documents.”  (People v. Gallegos, supra, 96 Cal.App.4th at p. 626.) 1

Pursuant to Penal Code section 1531, Deputy Robarts was authorized to break open any inner door, “or any part of a house, or anything therein, to execute the warrant” after knock-notice was given and the officers were admitted into the house.  (See People v. Aguilar (1996) 48 Cal.App.4th 632, 638–639 [knock-notice does not apply to inner doors];  Hudson v. Michigan (2006) 547 U.S. 586, 599 [165 L.Ed.2d 56, 69] [violation of knock-notice rule does not require suppression of evidence found in search].)

Appellant claims that “I did exactly what I was told.   I had to.   I felt as if I had no free will.”   But appellant's lack of “free will” did not trump the search warrant.   Had appellant refused to consent to the search, the officers undoubtedly would have broken open the closet and safe on the good faith belief that the warrant authorized them to do so.  (United States v. Leon (1984) 468 U.S. 897, 922 [82 L.Ed.2d 677, 698];  People v. Camarella (1991) 54 Cal.3d 592, 596.)   In either event, the closet and safe would have been opened without violating appellant's Fourth Amendment rights.  (See People v. Saam (1980) 106 Cal.App.3d 789, 797–798.)

Inevitable Discovery

The trial court denied the motion to suppress evidence on the alternative theory of inevitable discovery.   It found there were “enough officers there to secure the premises and enough time to get a [second] warrant, but I do think that [the marijuana, weapons, and cash] would have been found eventually and were found.”

Appellant argues that the inevitable discovery exception does not apply where the police had probable cause but simply did not attempt to obtain a warrant.   (United States v. Mejia (9th Cir.1995) 69 F.3d 309, 320;  People v. Robles (2000) 23 Cal.4th 789, 801.)   If the rule were otherwise, it “ ‘would completely obviate the warrant requirement of the [F]ourth [A]mendment.’ ”   (United States v. Reilly (9th Cir.2000) 224 F.3d 986, 995.)

The cases cited by appellant are inapposite because Officer Robarts already had a warrant to search the house.  “The officers did not seek an elephant in a breadbox, but limited their search to areas that reasonably might have contained the documents specified in the warrant.  [Citations.]”  (People v. Gallegos, supra, 96 Cal.App.4th at p. 626.)   Appellant cites no authority that the police must stop a search pursuant to a valid warrant and obtain separate, successive warrants each time they discover a closet, a drawer, or safe in which evidence sought under the original warrant might be found.

Here the officers gave knock-notice, were granted entry, and saw the marijuana and scale during the protective sweep.   Appellant said that he had weapons and more marijuana in the closet and safe.   Appellant's help and assistance in opening the closet and safe only hastened what the officers would have discovered anyway.  (See e.g., People v. Saam, supra, 106 Cal.App.3d at pp. 797–798.)   There was no Fourth Amendment violation.

NOT TO BE PUBLISHED.

We concur:

Charles R. McGrath, Judge

Superior Court County of Ventura

Manuel H. Miller, For Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria fB. Wilson and Stephen D. Matthews, Supervising Deputy Attorneys General, David A. Glass, Deputy Attorney General, for Respondent.

FOOTNOTES

FN1. At oral argument, appellant stressed that the officer exceeded the scope of the search warrant because he admitted searching for marijuana and not pornography.   But the officer's subjective motivation is not controlling.   The officer was commanded by a magistrate to search the premises.   The search, not the motivation therefor, is what we measure against the constitutional standard.  (E.g., see Scott v. United States (1977) 436 U.S. 128, 138, 56 L.Ed.2d 168, 178.).  FN1. At oral argument, appellant stressed that the officer exceeded the scope of the search warrant because he admitted searching for marijuana and not pornography.   But the officer's subjective motivation is not controlling.   The officer was commanded by a magistrate to search the premises.   The search, not the motivation therefor, is what we measure against the constitutional standard.  (E.g., see Scott v. United States (1977) 436 U.S. 128, 138, 56 L.Ed.2d 168, 178.)

COFFEE, J. PERREN, J.