People v. Camilleri

• Decision Date: 25 May 1990
• Docket Number: No. H004916,H004916
• Citation: 269 Cal.Rptr. 862,220 Cal.App.3d 1199
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bruce M. CAMILLERI, Defendant and Appellant.

Page 862

269 Cal.Rptr. 862

220 Cal.App.3d 1199

The PEOPLE, Plaintiff and Respondent, v. Bruce M. CAMILLERI, Defendant and Appellant.

No. H004916.

Court of Appeal, Sixth District, California.

May 25, 1990.

Review Denied Aug. 15, 1990.

Rose & Arnold Law Corp., Ronald W. Rose, San Jose, and Cindy A. Diamond, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John S. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman and Thomas A. Brady, Deputy Attys. Gen., for plaintiff and respondent.

AGLIANO, Presiding Justice.

1. Introduction

Defendant Bruce Camilleri questions whether under the circumstances of this case the Fourth Amendment permitted police to enter and "secure" his residence pending procurement of a search warrant. Defendant pled guilty to possession for sale (Health & Saf.Code, § 11351) and sale (Health & Saf.Code, § 11352) of 57 grams or more of a substance containing cocaine (Pen.Code, § 1203.073, subd. (b)(1)). Defendant appeals from the judgment and seeks review of the denial of his second motion to suppress evidence. (Pen.Code, § 1538.5, subd. (m).) For the reasons stated below, we will affirm.

2. Procedure

Defendant's first suppression motion in superior court claiming lack of consent and failure to comply with the knock-notice provisions of Penal Code section 844 was denied after a hearing on April 6, 1988. On June 6, 1988, with new counsel, defendant filed a second pretrial motion claiming illegal warrantless entry. Original defense counsel declared that he had failed to make the current argument through "neglect on my part, and not due to any tactical decision." On July 15, 1988, the court, over objection, reached the merits "rather than subjecting the judicial process to subsequent appeals, writs of habeas corpus and other remedies." The motion was denied.

Where a pretrial suppression motion has been fully litigated, the superior court lacks jurisdiction to entertain a second pretrial suppression motion. Penal Code section 1538.5, subdivision (h), only permits a second suppression motion at trial on the limited bases of lack of earlier opportunity or newly discovered grounds. (People v. Nelson (1981) 126 Cal.App.3d 978, 981-982, 179 Cal.Rptr. 195, and cases there cited; People v. Thomas (1983) 141 Cal.App.3d 496, 501, 190 Cal.Rptr. 408.) However, "if the ineffectiveness of counsel infected the first suppression hearing, the defendant cannot be said to have had opportunity for 'full determination' " of the grounds to suppress evidence. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 200, 178 Cal.Rptr. 334, 636 P.2d 23.)

Regardless of the superior court's jurisdiction to entertain a second pretrial suppression motion, defendant is entitled to assert on appeal that he was denied effective assistance of counsel on the first suppression motion. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 226-227, 233 Cal.Rptr. 404, 729 P.2d 839.) A claim of ineffective assistance should be made by petition for habeas corpus instead of appeal when "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged." (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.) If, however, "there simply could be no satisfactory explanation" (ibid.), an appeal is appropriate. We view defendant's appeal in this light. Our concern is whether defendant has established a case of ineffective assistance. "To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable." (People v. Babbitt (1988) 45 Cal.3d 660, 707, 248 Cal.Rptr. 69, 755 P.2d 253.)

3. The facts underlying the suppression motion

We are bound to resolve factual conflicts and draw inferences in favor of the trial court's order. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224, 266 Cal.Rptr. 473.) So viewed, the facts are as follows.

In June 1986, one Roland Marshall made a series of cocaine sales to an undercover officer working with an Allied Agencies Narcotics Enforcement Team ("AANET"). The first sale, of 3.34 grams for $250, took place on June 12 in Marshall's car near a San Jose motel. The second sale, of 27.88 grams for $1,500, took place on June 17 in Marshall's mobile home. The cocaine was not there when the officer first arrived on that day, but it was when he returned. On display in the trailer was a gold-plated rifle.

The AANET plan was to discover Marshall's source of cocaine. During the first sale, the undercover officer discussed the purchase of larger quantities, such as a kilogram. As a result, the sale of a kilogram for $36,000 was arranged for June 23. The undercover officer and Marshall met at 6:10 p.m. in the parking lot of a convenience store in Los Gatos. The officer displayed the money and Marshall displayed what he said was a quarter pound of cocaine in a ziplock plastic baggie. Marshall said he would have to drive to his "man's" house and would return in fifteen minutes with the kilogram. He left the parking lot at 6:20 p.m.

AANET officers followed Marshall's car to a nearby house. He parked by a side porch, where he entered the house empty-handed. Marshall and defendant emerged from the house and talked on the porch. Marshall was carrying a paper bag or box, which he placed in the passenger side when he returned to his car.

One AANET officer maintained surveillance of the house while others followed Marshall back to the convenience store parking lot where he arrived at 6:38 p.m. He was arrested after he showed the undercover officer a kilogram (actually 1,006 grams) of cocaine. A handgun was found in a sports coat on the back seat of Marshall's car.

After the arrest, AANET officers conferred briefly in the parking lot and decided to secure the cocaine source's house while seeking a search warrant. An officer testified that in his experience obtaining a telephonic search warrant would take two hours and "the source of supply would be expecting the payment for the kilo very soon after it had left the residence, and when that money did not arrive the source of supply would know something was wrong." He assumed a drug dealer would get nervous about an unexplained delay in payment and might either flee or destroy evidence.

At 7 p.m., AANET officers surrounded the house. There had been no unusual activity after Marshall left. One or two vehicles had arrived. No one had departed. A team of at least five officers approached the porch entrance. The screen door was closed but the door behind it was open. One officer knocked, identified his group as police officers, and demanded entry to secure the house. Two occupants, visible from the door, made eye contact with the officers but did not otherwise respond. The officers entered after ten seconds.

The officers located four persons in the house, including defendant, handcuffed them and brought them into the living room. Officers checked chair and sofa cushions in the room for weapons prior to seating the occupants. A baggie containing 90 grams of cocaine, apparently the quarter pound displayed by Marshall, was located under one chair cushion.

At 7:20 p.m., defendant gave written consent to search his house after being advised the officers would otherwise attempt to obtain a search warrant. The search produced other packages of cocaine, the gold-plated rifle, and over $12,000 in cash.

4. Was the warrantless entry justified?

Defendant contends the first cocaine package found in the house, his consent to search, and other evidence were products of an unconstitutional entry and seizure made without warrant or other justification.

Undoubtedly there was both seizure and search in Fourth Amendment terms for government agents to enter the residence without consent, locate its occupants, detain them, and examine furniture for concealed weapons, even for the limited purpose of securing the residence pending arrival of a search warrant. (People v. Shuey (1975) 13 Cal.3d 835, 850, 120 Cal.Rptr. 83, 533 P.2d 211; U.S. v. Howard (9th Cir.1987) 828 F.2d 552, 554; U.S. v. Lindsey (9th Cir.1989) 877 F.2d 777, 780; cf. Arizona v. Hicks (1987) 480 U.S. 321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347; but cf. People v. Larry A. (1984) 154 Cal.App.3d 929, 935-936, 201 Cal.Rptr. 696.)

A. The emergency exception to the Fourth Amendment in general

In People v. Poole (1986) 182 Cal.App.3d 1004, 1011, 227 Cal.Rptr. 594, we quoted the following passage from Payton v. New York (1980) 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639. " 'The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." [Citation.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.' "

People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333, explains: " '[E]xigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to...