PEOPLE v. GRAGG (1993)

OPINION

THE CASE

An information charged appellant with possession of methamphetamine for sale with a weight in excess of 28.5 grams.   The trial court denied appellant's motion to suppress evidence pursuant to Penal Code section 1538.5.   By agreement of the parties the People amended the information to allege a violation of Health and Safety Code section 11377, subdivision (a) (possession of methamphetamine), and following the amendment the parties submitted the issue of guilt or innocence for court trial based upon the preliminary hearing transcript, police reports, and the report of the chemical analysis.   The court found appellant guilty of possession of methamphetamine.

The court suspended imposition of sentence and placed appellant on probation with certain conditions, including payment pursuant to Penal Code section 1203.1b for probation supervision services and for preparation of a presentence report.

THE FACTS

On November 11, 1990, Officer Cron spoke with a boat patrol officer at Lake Don Pedro in Tuolumne County and obtained the names of individuals renting a houseboat on the marina.   Those persons were appellant and her husband, Eugene Gragg (Eugene).   The officers held outstanding felony arrest warrants for Eugene Gragg which involved complaints for violations of the Health and Safety Code.   Cron further discovered Eugene had a history of arrests and convictions for violations of both the Health and Safety Code and the Penal Code, including assaults against peace officers and armed robbery.

On November 13 officers carried out surveillance of the houseboat.   Officer Campana saw two individuals enter and leave the houseboat at different times.   The two walked among the houseboat, a Chevrolet pickup, and another boat parked on the shore approximately 100 feet from the houseboat.

Around 12:30 p.m. Campana and Cron drove to the area where the pickup was parked and made contact with the male subject, who appeared similar to the description the officers had been given for Eugene Gragg.   The officers identified themselves and detained the subject, who denied he was Eugene Gragg, but refused to identify himself further.   The subject eventually told the officers his name was Donald Howard Hart, and that he was born on December 10, 1955, and lived in Reno, Nevada.

Campana contacted appellant, who was on the houseboat.   She identified herself as Laurie Gragg, but gave the name of the male subject as Don Hart.

The male subject, who was by then detained by the officers, told Campana his identification was inside the houseboat.   The subject then told appellant that his identification was “ ‘probably in the brown suitcase.’ ”   Campana and Officer Hutchins went with appellant into the houseboat in order to locate the brown suitcase.   The officers, aware of the prior criminal history of the person they sought, Eugene Gragg, accompanied her out of concern for officer safety.

A brown suitcase was on a bunk bed in the back of the houseboat.   Again out of concern for officer safety, Hutchins opened the suitcase.   He found no identification.   Next to the brown suitcase was a black zippered bag.   As appellant stood next to Hutchins, Hutchins stated, “ ‘Maybe it's in here.’ ”   Hutchins then opened the black zippered bag and discovered a revolver, plastic bags containing a white powdery substance, and a substantial amount of United States currency.   Hutchins commented on the presence of the gun, and appellant turned and walked away from him.   The houseboat was then secured by the officers and a search warrant sought.   Upon executing the search warrant, officers found approximately two pounds of methamphetamine, a .357 magnum handgun, $7,554 in United States currency, scales, weights, and miscellaneous packaging material and other paraphernalia.

DISCUSSION

I. The Officers' Initial Warrantless Search.

After limiting the evidence at the suppression hearing to the affidavit for the search warrant and accompanying statement of probable cause, the trial court ruled:

“But as to the search, I don't think it's that much of a stretch of the imagination, as you put it, as to whether or not the search continued beyond the brown suitcase.

“As I understand the terminology actually expressed in the affidavit was it's ‘probably there’, and I'm asking—‘you have to go get my identification, it's probably in that spot’.

“Well, probably does not necessarily foreclose looking in other places.   And I think this is what the magistrate looked at, also.

“You cited two cases, under People versus Tims, (phonetic), that was an invitation to enter pursuant to an emergency call for help and there wasn't any consent to search on anything.

“On People versus Archetta, (phonetic), when the police asked for and received permission to look for a person in a residence, that didn't—because they're looking for somebody in that residence doesn't give them the right to start searching all over the place.   That isn't what happened here.

“To me, what happened here was they had probable cause to believe that this was Mr. Gragg.   That he was wanted on warrants out of both—out of two counties.   And when confronted, he gives a different name and then assured that he can get his identification somewhere on this boat.

“I don't—I don't think the magistrate went beyond what he should have.   I'm going to find that the motion should be denied, and will order the motion denied.”

A. Consent to Enter the Houseboat.

Appellant urges the Hutchins's entry into the cabin portion of the houseboat was illegal.   We disagree.

 The officers held a warrant for the arrest of Eugene Gragg.   They had learned that the persons who had rented the houseboat were listed on marina records as appellant and Eugene Gragg.   Appellant identified herself as Laurie Gragg, yet both she and the male subject they held said his name was Don Hart.   The male subject fit the description the officers had for Eugene Gragg.   Without doubt the officers had the right to pursue the correct identity of the person they detained.

The male subject told appellant his identification was “ ‘probably in the brown suitcase.’ ”   These words could reasonably be interpreted as an instruction to appellant to retrieve his identification.   When appellant proceeded to the suitcase inside the houseboat cabin, Campana and Hutchins went with her.   Based upon the information the officers knew about Eugene Gragg's history for assault upon peace officers and robbery, it was entirely reasonable for the officers to accompany her.  (Indeed, appellant does not argue officer safety was not a legitimate concern under these circumstances.)

B. Search of the Brown Suitcase.

It is settled that “[a] search based upon consent is lawful if, from the facts presented to the officer, he reasonably believed the occupant of the premises had authority to, and did in fact, consent to the entry and search.”   (People v. Veiga (1989) 214 Cal.App.3d 817, 821, 262 Cal.Rptr. 919, fn. omitted.)

With regard to the forms consent may take, “a consent to enter may be expressed by actions as well as words.  (People v. Baca (1961) 198 Cal.App.2d 391, 396 [17 Cal.Rptr. 779];  People v. Yancy (1961) 196 Cal.App.2d 665, 667 [16 Cal.Rptr. 766].)”  (People v. Harrington (1970) 2 Cal.3d 991, 995, 88 Cal.Rptr. 161, 471 P.2d 961.)

In reviewing a finding of consent by the trial court, we note:

“[W]hether there was an implied consent [is] primarily one of fact for the trial court to determine.  (People v. Smith (1962) 210 Cal.App.2d 252, 256–257 [26 Cal.Rptr. 620].)  Smith also recognized that a failure to object or to speak up under circumstances similar to the situation presented here was some evidence of a tacit consent.   Consent to entry may be manifested by actions as well as by words.  (People v. Harrington (1970) supra, 2 Cal.3d 991, 995 [88 Cal.Rptr. 161, 471 P.2d 961].)”  (People v. Gibbs (1971) 16 Cal.App.3d 758, 764, 94 Cal.Rptr. 458.)

 With these principles in mind, we conclude the record provides ample evidence to support the trial court's determination that Eugene consented to a search of the brown suitcase for his identification.   His words to appellant, that it was “ ‘probably in the brown suitcase’ ” indicate a request to her to look for it there.   That request, coupled with the officers' legitimate concern for their safety, provide justification for Hutchins to look through the suitcase.

C. Search of the Black Zippered Bag.

 While we are aware of the deference we must pay to the trial court's factual determinations regarding the issue of consent, we conclude the record does not support a conclusion that Eugene consented to the search of the black bag.   Although the issue is close, and respondent has submitted a credible argument that Eugene's words conveyed consent to search as necessary to find his identification, neither appellant nor Eugene engaged in any conduct or made any gesture from which the officers reasonably could infer consent to search further than the brown suitcase.  (See, e.g., People v. Smith (1962) 210 Cal.App.2d 252, 256, 26 Cal.Rptr. 620.)   Although it may be argued appellant acquiesced in the search of the black bag (she did not object when Hutchins said “ ‘Maybe it's in here,’ ” and she turned her back and walked away when Hutchins opened the bag), acquiescence alone is insufficient to infer consent.  (See, e.g., U.S. v. Shaibu (9th Cir.1990) 895 F.2d 1291, 1295.)   We are reluctantly compelled to reach this conclusion because the facts upon which the motion was made were so limited by the court at the suppression hearing.

II. Probable Cause For Issuance of the Search Warrant.

 With regard to the second search, conducted pursuant to a warrant, appellant argues this search too was illegal because the evidence forming the basis for the issuance of the warrant was illegally obtained.   Such evidence must be suppressed.  (Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417–18, 9 L.Ed.2d 441.)   Upon review of the magistrate's ruling, the illegally obtained evidence must be excised and the presence of probable cause retested based upon the evidence that remains.  (U.S. v. Vasey (9th Cir.1987) 834 F.2d 782, 788.)   Accordingly, because we have determined the search of the black zippered bag was illegally conducted, insufficient evidence of probable cause remains to support issuance of the warrant.

III. The Leon Exception.

 We have concluded the initial warrantless search exceeded any consent given by Eugene or appellant, and upon excising the information in the affidavit in support of the search warrant which was obtained from that search, insufficient facts are stated in the affidavit to support the warrant.   We now turn to the question whether United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, provides an exception to the Wong Sun exclusionary rule.

Appellant contends the good faith exception of Leon cannot apply when a search warrant affidavit relies upon evidence illegally obtained during a previous, warrantless search, particularly when the affiant participated in the previous search.   She cites U.S. v. Vasey, supra, 834 F.2d 782.  Vasey provides:

“Officer Jensen conducted an illegal warrantless search and presented tainted evidence obtained in this search to a magistrate in an effort to obtain a search warrant.   The search warrant was issued, at least in part, on the basis of this tainted evidence.   The constitutional error was made by the officer in this case, not by the magistrate as in [United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677].   The Leon Court made it very clear that the exclusionary rule should apply (i.e. the good faith exception should not apply) if the exclusion of evidence would alter the behavior of individual law enforcement officers or the policies of their department.   Leon at 918, 104 S.Ct. at 3418.   See also United States v. Whiting, 781 F.2d 692 (9th Cir.1986) (finding Leon inapplicable to warrantless search).   Officer Jensen's conducting an illegal warrantless search and including evidence found in this search in an affidavit in support of a warrant is an activity that the exclusionary rule was meant to deter.

“Further, we conclude that the magistrate's consideration of the evidence does not sanitize the taint of the illegal warrantless search.   A magistrate's role when presented with evidence to support a search warrant is to weigh the evidence to determine whether it gives rise to probable cause.   A magistrate evaluating a warrant application based in part on evidence seized in a warrantless search is simply not in a position to evaluate the legality of that search.   Typically, warrant applications are requested and authorized under severe time constraints.   Moreover, warrant applications are considered without the benefit of an adversarial hearing in which the evidentiary basis of the application might be challenged.   Although we encourage magistrates to make all possible attempts to ensure that a warrantless search was legal before relying on the fruits of that search, we are mindful of the limitations on a magistrate's fact-finding ability in this context.   We therefore conclude that a magistrate's consideration does not protect from exclusion evidence seized during a search under a warrant if that warrant was based on evidence seized in an unconstitutional search.   Accordingly, the good faith exception should not and will not be applied to the facts of this case.”  (U.S. v. Vasey, supra, 834 F.2d at pp. 789–790, fns. omitted;  accord, U.S. v. Scales (10th Cir.1990) 903 F.2d 765, 767–768;  U.S. v. Wanless (9th Cir.1989) 882 F.2d 1459, 1466–1467.)

In accord are People v. Brown (1989) 210 Cal.App.3d 849, 260 Cal.Rptr. 293, and People v. Leichty (1988) 205 Cal.App.3d 914, 252 Cal.Rptr. 669.   However, Vasey, Brown and Leichty all preceded the California Supreme Court's holding in People v. Camarella (1991) 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63.  Camarella summarized and interpreted Leon:

“In [United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677], the high court held ‘the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.’  (468 U.S. at p. 900 [104 S.Ct. at p. 3409, 82 L.Ed.2d at p. 684].)   The court made clear that the government has the burden of establishing ‘objectively reasonable’ reliance (id., at p. 924 [104 S.Ct. at p. 3421, 82 L.Ed.2d at p. 699] ), and it described four limited situations in which such reliance would not be established, and in which suppression under the exclusionary rule would remain an appropriate remedy:  (i) the issuing magistrate was misled by information that the officer knew or should have known was false;  (ii) the magistrate ‘wholly abandoned his judicial role’;  (iii) the affidavit was ‘ “so lacking in indicia of probable cause” ’ that it would be ‘ “entirely unreasonable” ’ for an officer to believe such cause existed;  and (iv) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid.  (Id., at p. 923 [104 S.Ct. at p. 3420, 82 L.Ed.2d at p. 699], italics added.)   This case concerns application of the third of these situations.”  (People v. Camarella, supra, 54 Cal.3d at p. 596, 286 Cal.Rptr. 780, 818 P.2d 63.)

In interpreting Leon the court explained:

“[People v.] Maestas [ (1988) ] 204 Cal.App.3d 1208, 1217, 1218 [252 Cal.Rptr. 739], also correctly articulates the test by which the ‘objective reasonableness' of an officer's decision to submit an affidavit to a magistrate is to be judged:  The test, which was initially formed in Leon, supra, 468 U.S. at pages 919–926 [104 S.Ct. at pages 3418–22, 82 L.Ed.2d at pages 696–701], and which was subsequently articulated clearly in Malley [v. Briggs (1986) ] 475 U.S. [335,] 345 [106 S.Ct. 1092, 1098, 89 L.Ed.2d [271] at page 281], is whether a reasonable and well-trained officer ‘would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’  (Ibid., italics added, fn. omitted.)   But if such an officer would not reasonably have known that the affidavit (and any other supporting evidence) failed to establish probable cause, there is no reason to apply the exclusionary rule, because there has been no objectively unreasonable police conduct requiring deterrence.  (Leon, supra, 468 U.S. at p. 919 [104 S.Ct. at p. 3418, 82 L.Ed.2d at p. 696].)   An officer in this latter situation will be permitted to rely on the warrant, and Leon 's general rule of nonexclusion will apply, unless one of Leon 's other limited ‘exclusion’ situations is triggered.”  (People v. Camarella, supra, 54 Cal.3d at pp. 605–606, 286 Cal.Rptr. 780, 818 P.2d 63.)

By requiring an examination of whether a well-trained officer reasonably would have known that the affidavit contained insufficient information to issue a search warrant, Camarella dictates that we make that determination.   The ipso facto rule of Vasey, Brown, and Leichty—that if information in the affidavit is obtained through means which the court ultimately determines was illegal, the Leon exception cannot apply—is no longer the law.   Just as the court in Camarella, we must consider the third Leon exception—whether the affidavit was “so lacking in indicia of probable cause” that it would be “entirely unreasonable” for an officer to believe such cause existed.

 From the record before us, we conclude Officer Campana had no reason to believe the incriminating information in his affidavit had been obtained by conduct that exceeded the officers' authority to search.   As we have noted, the question of the legality of the search of the black zippered bag was close, one upon which reasonable minds could easily and credibly differ.   In the words of Camarella, supra, 54 Cal.3d at page 606, 286 Cal.Rptr. 780, 818 P.2d 63, “We conclude on these facts that a well-trained officer reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause.”

Accordingly, the evidence discovered pursuant to the search warrant need not be suppressed.

IV. The Court's Failure to Conduct Proceedings Pursuant to Penal Code Section 1203.1b.

Appellant argues the court erred by ordering her to reimburse the county the cost of probation and the presentence investigation and report because it did not first hold a hearing pursuant to Penal Code section 1203.1b to determine her ability to pay.   No such hearing was held.   The Attorney General agrees, as do we.   Therefore, we will remand the case to the superior court for that purpose.

DISPOSITION

The judgment of conviction is affirmed.   The sentence is reversed and remanded for a hearing as directed in part IV of this opinion.

STONE (WM. A.), Associate Justice.

MARTIN, Acting P.J., and HARRIS, J., concur.