People v. Carney

• Citation: 117 Cal.App.3d 36,172 Cal.Rptr. 430
• Decision Date: 18 March 1981
• Docket Number: Cr. 11637
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Richard CARNEY, Defendant and Appellant.
• Court: California Court of Appeals

Page 430

172 Cal.Rptr. 430

117 Cal.App.3d 36

The PEOPLE, Plaintiff and Respondent, v. Charles Richard CARNEY, Defendant and Appellant.

Cr. 11637.

Court of Appeal, Fourth District, Division 1, California.

March 18, 1981.

George Haverstick and Thomas F. Homann, San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Beatrice W. Kemp and Bruce Daniel Rosen, Deputy Attys. Gen., for plaintiff and respondent.

COLOGNE, Acting Presiding Justice.

After unsuccessful motions to suppress evidence (Pen.Code, § 1538.5) ¹and to dismiss (§ 995), defendant Charles Richard Carney pleaded nolo contendere to the charge of possession of marijuana for sale (Health & Saf.Code, § 11359). On this appeal he contends the evidence seized in his motor home was obtained by an illegal search and seizure (§ 1538.5, subd. (m)). We conclude his contention is without merit and affirm the judgment.

In our review of the facts supporting the propriety of the court's action at the suppression hearing pursuant to a Penal Code section 1538.5 motion, we are guided by standards set down in People v. Superior Court (Keithley), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.

"A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (Citations.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence. (Citations.)"

The record discloses the following events: Agents Robert Williams and Peralta of the Drug Enforcement Administration were following a suspected drug dealer near the Horton Plaza area of downtown San Diego when Williams first observed Carney. Williams' attention was drawn to Carney because "(h)e did not look like he fit in the area and he was approaching a Mexican boy and talking to him." A few minutes later, Williams saw Carney and the youth who appeared to be under 18 walk to a nearby parking lot open to the public at Fourth and G Streets where they entered a Dodge mini-motor home parked in that lot. Williams wrote down the license number on the vehicle, then recalled receiving anonymous information by letter and by telephone from an organization known as WeTIP ² concerning this particular mini-motor home. WeTIP reported drugs were being disbursed from this mini-motor home and linked Carney as its driver with a Lee Bowman and a Louis A. Gonzalez. The letter stated all three men operated out of the Horton Plaza area and were involved in soliciting sex with young boys in exchange for narcotics.

This letter charged "They offer joints to young boys invited them over to the above address (the motor home) to watch porno films then attempts to have sex with them." Williams was also informed from the same source that the curtains of the Dodge camper were closed during the activities for anywhere from 10 minutes to 2 hours.

Williams and Peralta, from their vantage point, could see Carney closing the curtains in the mini-motor home; a curtain was drawn across the front windshield, shielding all view from the outside. Williams called for additional units and began surveillance of the vehicle.

Approximately one hour and fifteen minutes later, the boy left the vehicle and began walking north on Third Avenue. Agents Williams and Peralta followed the boy and soon were joined by Agent James The boy returned with the agents to the vehicle where he knocked on the door and asked Carney to step outside. Carney stepped out after the agents identified themselves.

Clem, a narcotics agent with the San Diego Police Department. The three agents stopped the boy, identified themselves as narcotics agents, told him they were conducting a narcotics investigation, and asked him what he had been doing in the motor home. The boy identified himself as a juvenile and told the officers: "The older man had asked him to have sex with him and had given him a small bag of marijuana." He had allowed "this older man to perform oral sex on him." The boy took a small quantity of marijuana "out of his crotch and gave it to Clem later."

Williams related, "Clem stepped one step up and looked inside to see if anyone else was in there." He stepped "back out" and said "there is marijuana inside." Clem testified for "safety reasons" he stepped in the motor home to check to see if there were any other occupants of the vehicle. Clem saw in plain view inside the camper a scale, a large bag of marijuana, a small bag of marijuana, and some ziploc bags on a table. The quantity of bulk marijuana, plus the packaging materials, led to the expert opinion that the marijuana was for resale.

Carney was placed under arrest. The mini-motor home was driven to the National City office of the Narcotics Task Force where it was subjected to a warrantless "inventory" search. This search disclosed additional marijuana in the refrigerator and in a cupboard of the vehicle.

DISCUSSION

I

Carney contends the warrantless entry and "search" of this vehicle and the seizures of the contraband (both the Clem entry and the later "inventory" search) violated the Fourth Amendment of the federal Constitution. The People justify Clem's entry into the vehicle for "safety reasons" and "to check for other occupants," other suspects, and claim his observations, once entry was made for the lawful purpose, fall under the "plain view" doctrine. (See People v. Mack, 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454.) ³

The controlling precedent is People v. Block, 6 Cal.3d 239, at page 243, 103 Cal.Rptr. 281, 499 P.2d 961, which enunciates the "plain sight rule" that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence. No "search" in the constitutional sense occurs under such circumstances.

The admissibility of the evidence so observed turns on the reasonableness of the officer's belief and acts in placing himself in a position where he could plainly see the contraband.

"(T)he reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. (Citation.) And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or 'hunches,' but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. (Citations.)" (People v. Black, supra, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961.)

Thus directed, our search here is for "specific and articulable facts" to support the officer's belief that additional suspects might be found inside the motor home.

Agent Clem was present at the questioning of the boy. The boy admitted possession of marijuana, an act of prostitution, engaging in a sex act for marijuana, and reported felony activities by Carney. Significantly, the boy told the officers "the older man" offered him the dope in return for sex acts. Thus we conclude Clem could reasonably infer there was more than one man inside the motor home. Clem had reason to check the vehicle to be sure no one else was present who might be a threat to their immediate safety, destroy the evidence, or drive away the motor home.

Additionally, Williams, the head of this team effort present and directing the entire operation resulting in Carney's arrest, had sufficient information to warrant the conclusion a second or third participant in this pot-for-sex operation might be present inside the camper. The anonymous source, just confirmed by the officer's observations of the activities of Carney, and also confirmed by the boy who was involved in the crimes inside the mini-motor home, named two other adult males, Bowman and Gonzalez, as users of this camper for their criminal activities. Whether one or both of these younger men were inside the camper could not be determined in view of the closing of the camper curtains. We do not know whether Officer Williams briefed Clem before his entry relative to Williams' information as to two other younger males using this camper as a site for trading marijuana for sex with young boys. If, however, we make the highly unwarranted assumption Agent Williams did not share his knowledge with Agent Clem, we still must examine the totality of this encounter and entry to determine the "reasonableness" of the entry made. The Fourth Amendment does not forbid all, but only unreasonable searches. (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) If we consider the knowledge of facts possessed by Officer Williams at the moment Clem looked into the camper, we could reasonably conclude a reasonable officer, situated as was Williams, would be warranted in believing his safety and that of his partners might be in jeopardy. Such conclusion would authorize Williams' entry into the camper at that time to ascertain whether one or both of the other reported users of the camper were inside. The fact that Clem moved too fast before being briefed by Williams, if that be the fact should not detract from the reasonableness of the entry made.

This was a team effort at surveillance, questioning and arrest directed by Williams. Clem came to the scene to assist and aid Williams. It would be most hypertechnical to insist each of the officers present and acting as a team had to be actually advised of all details in such a fast-moving investigation of this...