IN RE: BOUNMY V. (1993)

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 completely open ends.   Clearly, a fully enclosed garage gives its owner a higher expectation of privacy than does an open carport.

In United States v. Santana (1976) 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, the United States Supreme Court held that a person standing in the open doorway of her house was in a “public” place for Fourth Amendment purposes, even though the threshold is considered “private” under the common law of property.

“She was not in an area where she had any expectation of privacy.  ‘What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’  Katz v. United States, 389 U.S. 347, 351 [88 S.Ct. 507, 511, 19 L.Ed.2d 576] (1967).   She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.”  (United States v. Santana, supra, 427 U.S. at p. 42 [96 S.Ct. at 2409].)

In U.S. v. Hoyos (9th Cir.1989) 892 F.2d 1387, the defendant was seen by officers in the backyard of his home, looking at them over the top of a gate and through the holes of a decorative top of a block wall.   The Ninth Circuit Court of Appeals held that he was in a public, not a private, place for Fourth Amendment purposes.   By exposing himself to public view, the defendant could not be said to be in an area where he had a reasonable expectation of privacy.  (892 F.2d at p. 1394.)

The principle of these cases applies here.   Although the carport might be considered private for property law purposes, it was fully exposed to public view.   In fact, the conduct of Bounmy and his companions in flashing the vehicle's lights and hailing passing motorists was designed to attract attention.   We know of no authority supporting Bounmy's contention that he was protected from warrantless entry of the open carport simply because of the incidental fact that the carport and its roof were physically attached to his dwelling.   Bounmy was not in a zone of privacy protected by the Payton/ Ramey rule.

B. Probable cause

The juvenile court found that the officers had probable cause to arrest Bounmy, and the subsequent search of the vehicle was justified as being incident to a lawful arrest.   Bounmy argues the court erred.

 Juveniles are afforded full protection under the Fourth Amendment.  (In re Scott K. (1979) 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105.)   There must be probable cause for a warrantless arrest.   Probable cause for arrest exists “when the facts known to the arresting officer ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’  [Citations.]”  (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632.)   Mere suspicion or hunch, no matter how experienced the officer, is insufficient.  (People v. Bower (1979) 24 Cal.3d 638, 645, 156 Cal.Rptr. 856, 597 P.2d 115;  People v. Jones (1991) 228 Cal.App.3d 519, 524, 279 Cal.Rptr. 56.)   Activity which is as consistent with innocent activity as criminal activity does not constitute probable cause to arrest.  (People v. Stanfill (1985) 170 Cal.App.3d 420, 423, 216 Cal.Rptr. 472.)

At the Welfare and Institutions Code section 700.1 hearing, Officer Blon stated the basis for his belief that the youths were engaged in narcotics trafficking.   First, the vehicle backed into the outermost carport stall and, from this action, the officer concluded the car's occupants were attempting to conceal the car.   However, the record clearly establishes the carport was attached to Bounmy's residence, and he had a legitimate reason to be there.

Second, Officer Blon testified the consistency of the signaling and contact between the occupants of the Chevrolet and the approaching vehicles led him to suspect the youths were selling drugs.   Officer Blon testified that there were three “incidents.”   Three times the Chevrolet signaled to an approaching vehicle.   Three times the right front passenger got out of the vehicle and signaled as well.   Of the three attempts to signal approaching vehicles, two were successful.   Of the two vehicles that stopped, the officer recognized the driver of one.   Officer Blon never explained why the identity of the first driver was significant.   Furthermore, a subsequent search of the first driver revealed no narcotics and Officer Blon knew this before issuing the order to arrest.

Officer Blon further testified when the two vehicles did stop, their drivers got out and made short contact first with Somkhith S. and then with Bounmy.   Officer Blon testified it was the consistency of the actions that led him to conclude criminal activity was afoot.   However, Blon could not see what occurred during the contact nor could he hear anything said.   He saw no exchange of money or packages.   He could not tell whether the driver's window was rolled up or down.   He could not identify any of the youths prior to their arrest, therefore he knew nothing of their history.   Officer Blon admitted that before the youths were ordered out of the car, he observed no criminal activity.

 Under some circumstances, the specialized knowledge of a police officer may render suspicious what appears innocent to a layperson.  (See People v. Mims (1992) 9 Cal.App.4th 1244, 1248, 12 Cal.Rptr.2d 335.)   Officer Blon did testify his experience as an undercover narcotics officer in the area led him to suspect the youths' actions were not innocent.   Yet Officer Blon did not link his experience and previous observations with the specific activity he observed here.   He did not say he had observed sales conducted using similar signaling or conducted in this particular carport.

 Finally, Officer Blon and the juvenile court relied on the location of the activity to allow the inference that what appeared innocent might be criminal.   The high frequency of crime in an area may be considered by officers and the court in evaluating the circumstances facing the officer in the field.  (People v. Holloway (1985) 176 Cal.App.3d 150, 155, 221 Cal.Rptr. 394.)   However, the location of otherwise innocent activity will not alone justify seizure.  (People v. Washington (1987) 192 Cal.App.3d 1120, 1123, 236 Cal.Rptr. 840.)

 Officer Blon's suspicion that the four youths were selling narcotics justified further investigation, but it did not rise to the level of probable cause justifying the immediate arrest of Bounmy and his three companions.

C. Probation condition

The analysis does not stop by finding there was no probable cause.   Respondent argues that whether or not probable cause existed, the search was validated by the search term of Bounmy's probation.

 The juvenile court took judicial notice of the search terms of appellant's probation order.   In its comments before ruling on the suppression motion, the court indicated that existence of probationary search conditions was irrelevant as to the validity of the arrest, because there was no testimony that the arrest was based on a probation term.   Because the court found the arrest lawful, it did not reach the question of whether the search term provided independent justification for the search.   Bounmy argues this issue cannot be raised for the first time on appeal.   We disagree.

At the Welfare and Institutions Code section 700.1 hearing the prosecutor did raise the fact that Bounmy was on probation and subject to a search condition.   Whether that fact justifies the search is a legal question and it is clear there is no other evidence pertinent to the issue which would be offered.   Therefore, we may consider this “new” theory even though it was not expressly urged at the trial court level.  (See People v. Melnyk (1992) 4 Cal.App.4th 1532, 1534, fn. 1, 6 Cal.Rptr.2d 570.)   The cases cited by Bounmy are distinguishable.  (People v. Henderson (1990) 220 Cal.App.3d 1632, 270 Cal.Rptr. 248;  Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640–641, 108 Cal.Rptr. 585, 511 P.2d 33.)   Both cases involve standing issues, requiring additional evidence, which were raised for the first time on appeal.

 On the merits of the issue, respondent, citing In re Binh L. (1992) 5 Cal.App.4th 194, 202, 6 Cal.Rptr.2d 678, and In re Marcellus L. (1991) 229 Cal.App.3d 134, 138–141, 279 Cal.Rptr. 901, argues the officers need not know the existence of the search term before executing the arrest and simultaneous search.   This court has rejected the analysis of both Binh L. and Marcellus L. in In re Tyrell J. (1992) 11 Cal.App.4th 266, 14 Cal.Rptr.2d 22 which is currently before our state Supreme Court.

In each of those cases it appears the officers had no prior contact with the minor and no knowledge of his probationary status.   This case is different.   Before April 12, 1992, Officer Blon had several contacts with Bounmy.   At the time of the search he was “fairly sure” Bounmy was on probation subject to a search term.²  It is undisputed that there was a valid search term on record.   Thus, the issue is whether the officers' recognition of Bounmy was a product of the illegal arrest and thus “fruit of the poisonous tree” subject to exclusion under Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.

The exclusionary rule prohibits the introduction of derivative evidence that is acquired as the direct or indirect result of unlawful conduct up to the point where the connection between the unconstitutional conduct and the evidence seized becomes so attenuated as to dissipate the taint of the illegal police action.  (Murray v. United States (1988) 487 U.S. 533, 536–537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472.)

The United States Supreme Court has identified three factors which are to be considered in determining whether the evidence is admissible even though the product of unlawful police conduct.   Is there a temporal proximity between the illegal arrest and the evidence in question?   Are there intervening circumstances between the illegal activity and the evidence seized sufficient to attenuate the taint?   What was the purpose of and how flagrant was the police misconduct?  (Brown v. Illinois (1975) 422 U.S. 590, 603–604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416.)   The question is whether the evidence sought to be suppressed comes from the exploitation of illegal police action.   (New York v. Harris (1990) 495 U.S. 14, 19, 110 S.Ct. 1640, 1644, 109 L.Ed.2d 13.)

In this case the officers, based on Blon's observations, strongly suspected the youths were engaged in illegal activity.   Although they did not have probable cause to arrest, they had sufficient information to investigate the situation and contact and briefly detain the vehicle's occupants under Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.   If the officers had limited their initial contact to an investigative Terry stop, they still would have seen the vehicle's driver, Bounmy.   When the officers saw Bounmy they recognized him because of previous contacts and believed he was subject to a probationary search condition.   It was the fact of contact, not its legal characterization, which led to Bounmy's recognition.   And it was that recognition, coupled with information previously obtained from an independent source, which led to the search.

The facts here come within two doctrines developed by the courts for justifying the admission of evidence obtained after illegal police conduct when the connection between the conduct and the evidence is sufficiently attenuated that it can said to be purged of the illegal taint.   (See Wong Sun v. United States, supra, 371 U.S. at pp. 487–488, 83 S.Ct. at 417;  4 LaFave, Search and Seizure (2d ed. 1987) § 11.4(a), pp. 372–388.)

The first doctrine is inevitable discovery.   Evidence obtained as a result of unlawful police conduct is nonetheless admissible if the prosecution can prove the evidence would have been discovered even if no constitutional violation had occurred.  (Nix v. Williams (1984) 467 U.S. 431, 440–450, 104 S.Ct. 2501, 2507–2512, 81 L.Ed.2d 377.)   Here evidence presented by the prosecution shows that the officers had sufficient reason to contact the youths and, upon recognizing Bounmy, search the car pursuant to his probation condition.   The search did not depend upon the illegal arrest.

The second doctrine is that of independent source.  (Segura v. United States (1984) 468 U.S. 796, 805, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599.)   The officers' knowledge of Bounmy and his search condition was gained before the events of April 12, 1992.   It was not the fruit of any unlawful activity.   They knew who Bounmy was, they needed only to see him to identify him.

Two sister state decisions are instructive.  (State v. Thompson (1989) 231 Neb. 771, 438 N.W.2d 131 and People v. Hillyard (1979) 197 Colo. 83, 589 P.2d 939.)   In both, after making an unlawful detention, the officer discovered the individual stopped was subject to an outstanding arrest warrant.   In Hillyard, the court held the officer's discovery of the outstanding warrant was an intervening circumstance sufficient to purge the taint of the illegal police conduct.   Key to the court's analysis was the minimal nature of the unlawful conduct and that the officer was legally required to arrest the suspect after learning of the arrest warrant.   Thus, the outstanding arrest warrant was sufficiently independent from the illegal detention.  Thompson follows the analysis in Hillyard.

In a real sense, the facts here supporting admission of the evidence are stronger than in Hillyard and Thompson.   In those cases, unlike this, the officers did not even have sufficient grounds to detain the defendant, so it was arguable that absent the illegal conduct there would have been no contact and no opportunity to identify and obtain information about the defendant.   As we have already stated, Officer Blon had a sufficient basis (reasonable suspicion) for contacting Bounmy.   The only question was what level of contact was constitutionally permissible.   The police misconduct was one solely of judgment.   The officers arrested only when they had enough information to detain for investigation.   The officers went further than they were constitutionally permitted, but they did not flagrantly disregard constitutional standards.   They were not trying to get “lucky.”   They did not randomly stop on the basis of a mere hunch in hopes that the individual stopped would be subject to an arrest warrant or a search condition.   The degree of the officers' misconduct was slight—it was the level of intrusion executed, not the contact itself that was unconstitutional.

The search term in Bounmy's probation order justified search of the vehicle.   Thus, the court's denial of the suppression motion was not error.

DISPOSITION

Judgment affirmed.

FOOTNOTES

1.   Because the only issues raised on appeal relate to the suppression hearing, we limit our statement of facts to matters presented at that hearing.

2.   Appellant argues that the trial court, by not relying on the probation condition, impliedly found that Officer Blon did not know of Bounmy's probationary status.   Nothing in the record supports that contention and we reject it.

THAXTER, Associate Justice.

VARTABEDIAN, Acting P.J., and BUCKLEY, J., concur.