People v. Johnson, A098085.

CourtCalifornia Court of Appeals
Citation111 Cal.App.4th 341,3 Cal.Rptr.3d 507
Decision Date15 August 2003
Docket NumberNo. A098085.,A098085.
PartiesThe PEOPLE, Plaintiff and Appellant, v. John Medley JOHNSON, Defendant and Respondent.
3 Cal.Rptr.3d 507
111 Cal.App.4th 341
The PEOPLE, Plaintiff and Appellant,
John Medley JOHNSON, Defendant and Respondent.
No. A098085.
Court of Appeal, First District, Division 2.
August 15, 2003.
Review Granted November 12, 2003.

[3 Cal.Rptr.3d 508]

Gary T. Yancey, District Attorney Doug MacMaster, Deputy District Attorney, for Appellant.

David C. Coleman, III, Public Defender Jonathan Laba, Deputy Public Defender Ron Boyer, Deputy Public Defender, for Respondent.


The question presented by this appeal is whether the prosecution can satisfy its burden of proof at a suppression hearing by presenting the investigating officer's affidavit in lieu of live testimony. The trial court answered in the negative, granted the defendant's motion to suppress and, when the prosecutor represented he was unable to proceed, dismissed the case. The People appeal. We reverse.


Respondent, John Medley Johnson, was charged by information filed on July 3, 2001, with first degree residential burglary (Pen.Code, § 459/460,1 subd. (a)); second degree burglary (§ 459/460, subd. (b)); grand theft of a firearm (§ 487, subd. (d)) and grand theft of personal property

3 Cal.Rptr.3d 509

(§ 487, subd. (a)). Respondent entered a plea of not guilty and the case was set for trial.

Respondent filed a motion to suppress evidence (§ 1538.5) on September 21, followed by a supplement to the motion and a motion to quash warrant on September 25. The People opposed the motion to suppress, based on the affidavit of Deputy Matthew Ohnemus, who had detained respondent and searched his car on April 11, 2001, after observing marijuana and a pipe in the car in which respondent was sleeping. The People also filed a memorandum of points and authorities in support of the admissibility of the affidavit. Respondent, in turn, filed opposition to the admission of the affidavit. Following a hearing on November 15, the parties filed additional briefs addressing questions of concern to the trial court. At a subsequent hearing on February 15, 2002, the court found the affidavit inadmissible. As the People offered no other evidence to demonstrate the reasonableness of the search respondent challenged, the court granted the motion to suppress. Defense counsel moved for dismissal, the district attorney indicated he was unable to proceed in light of the court's ruling on the affidavit, and the court granted the motion to dismiss.

Appellant filed a timely notice of appeal on March 6, 2002.


Jerry Johnson, respondent's father, returned on April 8 or 9, 2001, from a weekend out of town to find the door to his house locked but the door to his bedroom kicked in. The door to a separate cottage on the property was broken and the threshold of the cottage had been ripped out. Inside, the linoleum floor of the cottage was ripped and two gun safes were missing. One of the safes was new, weighed about 2500 pounds and contained 25 to 30 guns, jewelry, about $25,000 in savings bonds, $600 to $1,000 cash, a knife collection and deeds and titles to Johnson's property. Items that were missing from the main house included CDs, a lap top computer. The total value of the property taken was between $60,000 and $80,000.

Johnson had a "fork truck" or forklift on his property that could handle the weight of the safes. When Johnson returned from his trip, the forklift was parked where he had left it, but tire tracks went from that area to the cottage and there was paint from the safes on the forks of the forklift.

Johnson found two oxygen tanks in the cottage where the safes were kept; these tanks had been outside the cottage when Johnson left for the weekend.

Respondent had lived in the cottage on and off until three and a half weeks before the burglary. Johnson and his wife had asked respondent to leave the residence when they learned of his heavy drug usage and he was no longer welcome at the house. He had worked for his father's construction company at various times and had operated the forklift. Johnson told the police investigating the burglary that he suspected respondent might have been responsible.

A clerk at the hardware store told Johnson's wife that he had seen respondent in the store on the morning of April 7, 2001, trying to purchase acetylene. Records from a storage facility in Brentwood showed that respondent had made several visits to the facility from April 7 to 10, 2001. One of these visits lasted an hour and a half.

On April 11, 2001, Contra Costa Sheriffs Deputy Ted Anderson obtained a search warrant for respondent's storage unit. He and Sergeant Eric Christensen searched the storage unit and seized firearms and

3 Cal.Rptr.3d 510

jewelry identified as having been stolen from the Johnson home.

At about 10:20 p.m. on April 11, 2001, Los Angeles Sheriffs Deputy Matthew Ohnemus was dispatched to the vicinity of apartments at 14717 Pioneer Boulevard in Norwalk in response to a report of a suspicious person in a vehicle. He contacted a person later identified as respondent, asleep in a red 1982 Chevrolet Beretta parked in a private lot. Ohnemus and his partner knocked on the window of the car, woke respondent and asked to talk to him. While standing outside the car, Ohnemus saw in plain view on the center console a pipe commonly used for smoking marijuana and a plastic baggie containing a usable amount of marijuana. Ohnemus asked respondent to step out of the car and stand aside. He then searched the vehicle for more narcotics or user paraphernalia. In the car, Ohnemus found a cane sword, several firearms and several knives. Ohnemus arrested respondent for possession of an unlawful weapon (the cane sword) and transported him to the Norwalk sheriffs station, where he booked the seized property into evidence and respondent into custody.

Believing that such a large number of weapons was probably taken in a burglary, Ohnemus contacted the police agency in the area where respondent lived. He was told that respondent's parents' house had been burglarized, a gun collection and other items had been taken, and respondent was suspected. The items found in respondent's car matched those on a list of stolen items faxed to Ohnemus by the Contra Costa sheriffs office.

Ohnemus believed respondent's car would contain additional evidence connecting respondent to the burglary and conducted a further search. He seized 14 cigars, an envelope containing several certificates of ownership and miscellaneous papers in the burglary victims' names, three photographs of the stolen firearms, a pawn receipt signed by respondent for one of the stolen firearms and a handwritten list of some of the stolen guns. Ohnemus faxed a copy of his incident report to Detective Anderson in Contra Costa County.

On April 12, after receiving the police report and speaking with Detective Smith in Los Angeles, Anderson supplemented the affidavit he had used to obtain the search warrant for the storage unit and obtained a warrant to search respondent's car. The supplemental information included the evidence seized by Ohnemus at the time of respondent's arrest and in the subsequent inventory search of the vehicle. Anderson and Sergeant Christiansen traveled to Los Angeles and interviewed respondent at 11:45 p.m. on April 12. In this interview, respondent allegedly admitted the burglary and supplied the officers with details including locations at which the police could—and subsequently did—find items of property taken in the burglary, including the safes. Anderson searched respondent's car and found additional items taken in the burglary.


Respondent moved to suppress all evidence obtained as a result of his detention by Officer Ohnemus, claiming the detention was illegal. His motion did not apply to the evidence seized pursuant to the search warrant for the storage unit, but to the evidence seized, by Ohnemus at the time of the detention, during the subsequent searches of the vehicle, and as a result of Anderson's interview with appellant. Respondent additionally sought to quash the search warrant for his car on the ground that the information supplied in the affidavit upon which the warrant was issued was derived from the initial detention and its fruits.

3 Cal.Rptr.3d 511

The People opposed respondent's motions, arguing that the initial detention was justified, the seizure of the marijuana and pipe was lawful because Ohnemus observed these items in plain view from a legitimate vantage point outside respondent's car, and the ensuing search of the car was justified by respondent's lawful arrest and the probable cause established first by the marijuana and pipe and then by the stolen property in the car. The facts supporting the People's position were presented in the affidavit of Deputy Ohnemus. The People argued that the affidavit was admissible evidence under Code of Civil Procedure section 2009 (permitting use of affidavits in connection with motions), Penal Code section 1102 (making civil rules of evidence applicable to criminal actions), Penal Code section 1204.5, subdivision (a) (permitting use of affidavits in connection with law and motions matters), and Penal Code section 686 (making hearsay evidence admissible in criminal actions to the extent it is otherwise admissible). The People acknowledged that respondent had a statutory right to cross-examine Ohnemus and stated that respondent would have to subpoena Ohnemus for this purpose. Respondent argued the affidavit was not admissible and did not subpoena Ohnemus.

The trial court ultimately concluded that the affidavit was not admissible because a suppression hearing is not a criminal action but a special proceeding of a criminal nature, so that section 1102 did not make Code of Civil Procedure section 2009 applicable in this situation. Because the People relied entirely on Ohnemus's affidavit to establish the reasonableness of the detention and searches, after the trial...

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  • Taylor v. Maddox
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 10, 2004
    ...... People v. Taylor, No. B091340, at 6 (Cal.Ct.App. Dec. 6, 1996) (mem.)[hereinafter Ct.App. Opin.]. Taylor ... See People v. Johnson, 3 Cal.Rptr.3d 507, 522-23 (Ct.App.2003), rev. granted & opinion superseded by 6 Cal.Rptr.3d ......

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