People v. Palmer, E047869 (Cal. App. 3/9/2010)

• Decision Date: 09 March 2010
• Docket Number: E047869.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHNNY CURTIS PALMER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY CURTIS PALMER, Defendant and Appellant.

E047869.

Court of Appeals of California, Fourth Appellate District, Division Two.

March 9, 2010.

Appeal from the Superior Court of San Bernardino County, No. FVI800051. Margaret A. Powers and Gregory S. Tavill, Judges. Affirmed.

Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports

OPINION

RICHLI, J.

A jury found defendant and appellant Johnny Curtis Palmer guilty of second degree robbery (Pen. Code, § 211)¹ (count 1) with the personal use of a firearm (§ 12022.53, subd. (b)); possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 2); and possession of stolen property (§ 496, subd. (a)) (count 3). The trial court thereafter found true that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)); and that defendant was on felony probation (§ 12022.1, subd. (f)) at the time he committed count 1. Defendant was sentenced to a total term of 19 years four months in state prison. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion. We reject this contention and affirm the judgment.

I FACTUAL AND PROCEDURAL BACKGROUND²

Around 10:32 a.m., on December 28, 2007, San Bernardino County Sheriff's Deputies Antekeier, Struebing, and Lamb responded to a report of an armed robbery at a smoke shop on Highway 18 in Apple Valley. Upon arrival, Deputy Antekeier made contact with the store owner (the victim). The victim informed the deputy that one of her regular customers had stolen money and a carton of Newport cigarettes from her store. She described the suspect as a Black male adult, about five feet, eight inches tall. She said he was wearing a gray hooded sweatshirt and was armed with a small black handgun. Deputy Antekeier thereafter broadcasted the suspect's description over the police radio.

Deputies Struebing and Lamb thereafter began canvassing the area around the store and nearby apartment complexes. In searching the surrounding area, the deputies noticed a broken chair and money on a brick wall, "directly located north of the smoke shop." A witness testified that while he was working at a nearby apartment complex, he saw a "heavy set" Black male jump over the brick wall, land on the chair, and pick up money that he had dropped. The witness informed the deputies of this occurrence and elaborated that the Black male was wearing blue jeans and a sweatshirt, and ran toward an apartment complex located at 20195 Thunderbird Road. The witness handed Deputy Lamb a dollar bill, which the suspect had dropped. Deputy Struebing broadcasted the information provided by the witness over the police radio.

While Deputies Lamb and Strangle were searching the apartment complex located at 20215 Thunderbird Road, "dispatch advised that an [anonymous] caller had called and said the suspect [they] were looking for was at 20195 Thunderbird Road in Apartment Number 1." Six deputies proceeded to 20195 Thunderbird Road, Apartment No. 1. As the deputies knocked on the front door of the apartment, they heard noises "like people running around inside the apartment." Deputy Strangle informed Deputy Lamb that he saw "one or two subjects moving around and running around in the apartment like they're trying to hide." After about 10 seconds, Donald Palmer (defendant's brother) opened the front door. He was "brought outside, checked, patted down for any weapons, handcuffed and secured" in a police vehicle. Defendant and another male (Kevin Butler) were found in the apartment, taken outside, handcuffed, and secured.³

Because of "[t]he circumstances, the gun, the anonymous caller saying that the suspect . . . ran into Apartment Number 1," "prior history at the address," and "[f]or officer safety," a protective sweep of the apartment was conducted. At the time defendant and the other two individuals were secured, Deputy Lamb did not know whether defendant was the robber. Also, he wanted to make sure there were no other individuals in the apartment. During the protective sweep, Deputy Lamb saw a gray hooded sweatshirt on top of a laundry hamper in a bathroom. Deputy Lamb also saw three unopened packages of Newport cigarettes in three different locations in the apartment and a partially opened gym bag. Without touching the gym bag, Deputy Lamb saw a carton of Newport cigarettes within the partially opened gym bag.

Prior to arriving at the apartment, Deputy Lamb was aware of who lived there: defendant, Kevin Butler, defendant's mother or aunt, and Donald Palmer. Deputy Lamb was also aware that defendant was on parole from the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ),⁴ and that possibly defendant's mother or aunt was on parole. Prior to collecting anything and prior to a further search of the apartment, dispatch confirmed that defendant was on DJJ parole and that Donald Palmer was on felony probation. A further search of the gym bag revealed $ 74 in ones, "two . . . buck knives," a wallet with defendant's California Identification card, and "three credit cards belonging to a Peggy Howard." Ms. Howard was contacted and stated that the credit cards had been stolen a few days earlier. The total cash found in the apartment was $74; no firearms were found in the apartment.

Defendant testified there was no search and seizure term as a condition of his DJJ parole. He, however, admitted that he was on felony probation for possession of drugs for sale and, as a condition of that probation, he was required to submit to a search at any time by law enforcement.

Following arguments from counsel, the trial court denied defendant's motion to suppress, noting that "the officers were in fresh pursuit of the suspects" and that exigent circumstances existed. The trial court explained: "Having an armed suspect having done the robbery, the officers were able to identify and locate where that suspect was supposed to be. Certainly under those circumstances, they had exigent circumstances for several reasons. One was their own safety. Two was the safety of the residents in the community surrounding that apartment, but also if there was an armed suspect fleeing the police that entered that apartment, they had concern for the innocent person inside the residence as well. So they were well justified in going into the apartment. [¶] As to the probation condition, Term 7, on Mr. Palmer's felony probation, the Court will note that the officer is a 16-year veteran of the police force and on felony probation that comes out of this court, everybody gets search terms. I assume that the officer knew that and think it's reasonable to come to that conclusion under the circumstances. There's nothing wrong with the officer concluding that those search terms were in place when, in fact, they were in place. So on those grounds, the motion to suppress is denied."

Defendant later filed a renewed motion to suppress evidence pursuant to section 1538.5. The People subsequently filed their opposition. The trial court denied defendant's renewed suppression motion based on the evidence presented at the preliminary hearing. The trial court found there were sufficient exigent circumstances and that the search was justified.

II DISCUSSION

Defendant contends the trial court erred in denying his suppression motions as there were no exigent circumstances to justify the warrantless entry into defendant's apartment. He further claims that even if there were exigent circumstances, the exigency ceased once the occupants were secured and, therefore, the protective sweep was invalid. He also maintains that the broader search pursuant to his parole/probation status was invalid because the deputies did not know whether he was subject to a search condition.

The standard of appellate review of a trial court's ruling on a motion to suppress is well established. In reviewing the denial of a suppression motion pursuant to section 1538.5, we evaluate the trial court's express or implied factual findings to determine whether they are supported by substantial evidence. But, we exercise our independent judgment to determine whether, on the facts found, defendant's Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens "`"to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,"'" and to deter future unlawful police conduct. (People v. Sanders (2003) 31 Cal.4th 318, 324 (Sanders).) "`[T]he "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."'" (People v. Camacho (2000) 23 Cal.4th 824, 831.)

1. Exigent Circumstances

A warrantless search by the police is invalid unless it falls within one of the exceptions to the warrant requirement. (People v. Celis (2004) 33 Cal.4th 667, 676 (Celis).) Hot pursuit of a fleeing felon is a recognized exigent circumstance justifying a warrantless entry into a home. (Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750 [104 S.Ct. 2091, 80 L.Ed.2d 732] (Welsh ), citing United States v. Santana (1976) 427 U.S. 38, 42-43 [96 S.Ct. 2406, 49 L.Ed.2d 300] (Santana).) This exception to the warrant requirement must be narrowly construed and "requires an `immediate or continuous pursuit of the [felon] from the scene of a crime.'" (People v. Williams (1988) 45 Cal.3d 1268, 1298.) The United States Supreme Court has noted that "`hot pursuit' means some sort of a chase, but it need not be an extended hue and cry `in and about [th...