People v. Magee

• Decision Date: 20 July 2011
• Docket Number: No. A124598.,A124598.
• Citation: 11 Cal. Daily Op. Serv. 4352,123 Cal.Rptr.3d 689,194 Cal.App.4th 178,2011 Daily Journal D.A.R. 5255
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Deemario Bomone MAGEE, Defendant and Respondent.

194 Cal.App.4th 178

123 Cal.Rptr.3d 689

11 Cal. Daily Op. Serv. 4352

2011 Daily Journal D.A.R. 5255

The PEOPLE, Plaintiff and Appellant,

v.Deemario Bomone MAGEE, Defendant and Respondent.

No. A124598.

Court of Appeal, First District, Division 5, California.

April 12, 2011.

Rehearing Denied Apr. 25, 2011.

As Modified on Denial of Rehearing May 5, 2011.

Review Denied July 20, 2011.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Amy Haddix and Alisha Carlile, Deputy Attorneys General, for Plaintiff and Appellant.

Nella Bertin, under appointment by the Court of Appeal, for Defendant and Respondent.

SIMONS, J.

When defendant Deemario Bomone Magee noticed that police officers were approachinghim, he avoided them by entering the home of a friend. Though the officers lacked a warrant, they followed defendant into the house and found him inside the bathroom trying to dispose of individually wrapped pieces of suspected cocaine base. The trial court suppressed the evidence discovered inside the house, but we reverse; defendant had no reasonable expectation of privacy in the home or the bathroom at the time of the officers' warrantless entry.

FACTUAL BACKGROUND ¹

On September 13, 2008, at 7:48 p.m., Corporal Potts and three other officers of the Vallejo Police Department were patrolling near Mark Avenue and Sawyer Street, a high-crime area known for narcotics trafficking. The officers were in an unmarked van and wore black police shirts and vests. Potts saw defendant walk from in front of a house on Mark Avenue (the Mark Avenue house) toward a car that appeared to slow as it drove down the street. Potts recognized defendant; the “word on the street” was that defendant was involved in selling illegal narcotics, and Potts knew that defendant had been arrested in 2004 for selling drugs to an undercover officer. When Potts had attempted to contact defendant months before, defendant ran into a house to avoid the contact.

The police officers exited the van. Defendant looked toward the officers and then turned and “jogged hurriedly” toward the Mark Avenue house. Potts called out, “Please stop. Come here, Deemario. Please stop.” Defendant continued to move toward the house and, as Potts pursued him, defendant entered it. Potts knew from previous contacts with defendant that defendant did not live there; defendant had told Potts that his “grandmother” lived there.

Potts followed defendant into the house through an unlocked screen door and heard defendant close the bathroom door. The bathroom door was locked, and Potts kicked it open. Defendant was leaning over the toilet, flushing it. Inside the toilet was a bag containing “at least” 20 individually-wrapped pieces of a white chalky substance that Potts believed to be cocaine base.

Potts reached over defendant in an unsuccessful attempt to retrieve the bag before it was flushed away. Defendant pushed Potts, and Potts punched defendant. After a struggle involving additional officers, defendant was handcuffed. The officers found on defendant a handgun with one bullet in the chamber and over $800 in cash; they found a gun magazine in the bathtub. The officers also searched and seized evidence from defendant's car, which was parked outside. Potts opined that defendant possessed the suspected cocaine base for the purpose of sale.

Grace Anderson, who lived with her mother and sister at the Mark Avenue house in September 2008, testified for the defense. She is close to defendant's parents and has known defendant for over 20 years. Defendant stopped by the Mark Avenue house when he was in the area, two or three times a week. He socialized with Anderson's mother, who loved defendant as a “grandson.” He had permission to enter without knocking and to use the restroom. Defendant had never stayed overnight. On September 13, 2008, defendant had made arrangements with Anderson's niece to have his hair braided at the house.

PROCEDURAL BACKGROUND

In a felony complaint, defendant was charged with possession of cocaine base for sale (Health & Saf.Code, § 11351.5) (count 1), with an enhancement for being armed with a firearm (Pen.Code, § 12022, subd. (c)); ² possession of cocaine base while armed with a firearm ( Health & Saf.Code, § 11370.1, subd. (a)) (count 2); possession of a concealed firearm (§ 12025, subd. (a)(2)) (count 3); and misdemeanor battery on a police officer (§ 243, subd. (b)) (count 4).

Prior to the preliminary hearing, defendant filed a section 1538.5 motion to suppress the evidence discovered inside the Mark Avenue house, as well as the evidence seized from his car. At the end of the preliminary hearing, the magistrate granted the motion to suppress the evidence seized from the car, ³ denied the motion in all other respects, and held defendant to answer on the complaint. Thereafter, the People filed an information setting forth counts 1, 2 and 3 as stated in the complaint; count 4 was changed to charge defendant with resisting an executive officer (§ 69).

Subsequently, defendant filed a motion to set aside the information pursuant to section 995, on the ground that the magistrate erred in denying the suppression motion with respect to the evidence discovered in the Mark Avenue house. The trial court concluded the warrantless entry violated the Fourth Amendment to the United States Constitution and granted defendant's motion to set aside the information. The People filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

“A criminal defendant is permitted to challenge the reasonableness of a search or seizure by making a motion to suppress at the preliminary hearing. [Citation.] If the defendant is unsuccessful at the preliminary hearing, he or she may raise the search and seizure matter before the superior court under the standards governing a section 995 motion. [Citations.]” ( People v. McDonald (2006) 137 Cal.App.4th 521, 528–529, 40 Cal.Rptr.3d 422.) “In a proceeding under section 995, the superior court's role is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment. [Citation.] The superior court merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts. [Citation.]” ( Id. at p. 529, 40 Cal.Rptr.3d 422.) In this appeal from grant of defendant's motion under section 995, this court “must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence. [Citations.]” ( McDonald, at p. 529, 40 Cal.Rptr.3d 422.) “We judge the legality of the search by ‘measur[ing] the facts, as found by the trier, against the constitutional standard of reasonableness.’ [Citation.] Thus, in determining whether the search or seizure was reasonable on the facts found by the magistrate, we exercise our independent judgment. [Citation.]” ( Ibid.)

II. The Critical Issue in This Case Is Whether Defendant Had a Legitimate Expectation of Privacy at the Time of the Warrantless Entry

In the present case, the People contend the trial court erred in concluding the evidence discovered after the warrantless police entry into the Mark Avenue house should have been suppressed under the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” by police officers and other government officials. Under the Fourth Amendment, “ ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ ” and “ ‘absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.’ ” ( Groh v. Ramirez (2004) 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068.)

Although the warrantless entry in this case is presumptively unconstitutional, in order to obtain suppression of the evidence discovered in the Mark Avenue house on Fourth Amendment grounds, defendant had to show he had a reasonable expectation of privacy at the time of the warrantless entry. That is because “[t]he touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy, that is, whether he or she has manifested a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as reasonable. [Citations.]” ( People v. Robles (2000) 23 Cal.4th 789, 794–795, 97 Cal.Rptr.2d 914, 3 P.3d 311.)⁴ Although “ ‘the Fourth Amendment protects people, not places[,]’ ... the extent to which the Fourth Amendment protects people may depend upon where those people are.” ( Minnesota v. Carter (1998) 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373( Carter ).) “The inquiry is substantive in nature, and consists of a subjective and an objective component. ‘[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” ’ [Citation.]” ( People v. Ayala, supra, 23 Cal.4th at p. 255, 96 Cal.Rptr.2d 682, 1 P.3d 3; see also Minnesota v. Olson (1990) 495 U.S. 91, 95–96, 110 S.Ct. 1684, 109 L.Ed.2d 85( Olson ) [“A subjective expectation of privacy is legitimate if it is ‘ “one that society is prepared to recognize as ‘reasonable,’ ” ' [citation]”].) ⁵

Fourth Amendment rights are personal and may be asserted only by someone whose own rights have been violated. As explained in ...