People v. Rose

• Decision Date: 18 April 2018
• Docket Number: C082789
• Parties: THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL ROSE III, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL ROSE III, Defendant and Appellant.

C082789

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

April 18, 2018

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 62137096A)

After the trial court denied his motion to suppress evidence obtained during warrantless searches of a hotel room for which he was the registered guest as well as of his cell phone and truck (Pen. Code, § 1538.5), defendant Thomas Michael Rose III pleaded no contest to possession of methamphetamine for sale and admitted a prior conviction for the same offense (Health & Saf. Code, §§ 11378, 11370.2, former subd. (c)).¹ The court imposed a split sentence consisting of the lower term of 16 months for the drug possession offense plus three years for the prior drug conviction enhancement; the court suspended three years of the sentence and placed defendant on mandatory supervision by the probation department.

On appeal defendant contends the court erred in finding he lacked a reasonable expectation of privacy in the hotel room, that the room's co-occupant could validly consent to a search of the room, that he consented to the search of his phone, and that the automobile exception and probable cause justified the search of his truck. He requests that the judgment be reversed, the motion to suppress granted, and that he be given the opportunity to withdraw his no contest plea. We conclude the trial court properly denied defendant's motion to suppress.

While defendant's appeal was pending, section 11370.2, former subdivision (c) was amended to eliminate the enhanced three-year term for a prior section 11378 conviction. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) In supplemental briefing, defendant argues and the People concede that the change in the law applies retroactively. We agree, and conclude the enhancement under section 11370.2 must be stricken. We shall therefore affirm defendant's conviction, but reverse the sentence and remand the matter to the trial court with directions to strike the section 11370.2, former subdivision (c) enhancement and to resentence defendant accordingly.

FACTS AND PROCEEDINGS

Several months after he was held to answer at the preliminary hearing defendant moved to suppress the evidence against him. Detective Andrew Palmore was the only witness at the suppression hearing.²

Detective Palmore testified that on March 27, 2015, he was working as a narcotics detective for the Roseville Police Department. That day he had observed a man and a much younger woman come from the Heritage Inn in Roseville, a hotel located in a high-crime area well known for illegal methamphetamine use. The man, later identified as defendant, appeared to be about 30 years older than the woman, Casondra Carter.

Defendant exhibited jerky arm movements, exaggerated mannerisms, and finger tremors. Based on Detective Palmore's extensive experience investigating methamphetamine, he believed the mannerisms were indicative of a person under the influence of a central nervous system stimulant like methamphetamine.

After following defendant and Carter for a period of time, Detective Palmore and two other officers approached them as they ate in a nearby restaurant. There, Detective Palmore saw more signs that defendant was under the influence of some type of central nervous system stimulant. Carter exhibited similar physical symptoms of drug use.

Defendant was a "little edgy," and not as cooperative as Carter. When asked about a room at the Heritage Inn, defendant said he was not associated with any hotels in Roseville and that he lived in Sacramento and had been dropped off by a friend. He said he had not used drugs in a long time.

Detective Palmore then asked to speak to defendant and Carter outside; Carter agreed. Defendant remained inside the restaurant with other officers while they spoke.

Carter told Detective Palmore that she was staying at the Heritage Inn, and that she intended to use her room for prostitution purposes. She admitted using methamphetamine with defendant earlier in the day in the hotel room. She said he still had methamphetamine in the room, but she did not know where it was located. Becauseshe did not have a car, defendant would sometimes drive her around, and he also provided her with methamphetamine.

When asked whose room it was, she said she had paid for the room but that defendant used his identification card to put the room in his name because she had no idea how to rent it. She had not yet checked out of the room and had a key card.

Detective Palmore asked her if he could search the hotel room, and she consented. He did not use Carter's key card to enter the room, however. Instead, he went to the hotel front desk and asked for a key to the room, which was in fact registered under defendant's name. Upon verifying with hotel staff Carter's statement that the room was registered to defendant, Detective Palmore did not return to the restaurant to ask defendant whether he consented to a search of the room.

After searching the room, officers located a methamphetamine pipe inside a drawer under the television. Next to the pipe was a closed camera case. Officers discovered methamphetamine inside the camera case.

Following the room search, defendant was arrested. Prior to booking him into jail, police confiscated defendant's cellular phone, a set of keys, and his wallet that contained a key to the hotel room.

When Detective Palmore asked defendant if he could search his phone, defendant said no. Detective Palmore then told him that he intended to seize the phone to prevent the destruction of potential evidence because typically in his experience cell phones contained messages indicative of drug sales. He explained that he would request a warrant to search the phone, and that simply requesting a warrant did not mean one would be granted. He told defendant he had the right to withhold his consent to the search.

Defendant tried to negotiate with Detective Palmore, asking the detective if he would return the phone if he was allowed to search it and found nothing incriminating. Detective Palmore agreed he would return the phone under those circumstances.Defendant then consented to the search, and Detective Palmore located several text messages concerning methamphetamine and marijuana sales and prostitution or pimping-related activities.

At some point, Detective Palmore told Carter that no scale or other indicia of methamphetamine sales had been found in the hotel room. She told him defendant's truck was parked at the Heritage Inn, and that his scale was probably inside a backpack in the truck. Detective Palmore took defendant's confiscated keys and returned to the hotel.

Although defendant had originally claimed that he did not have a vehicle and that he had been dropped off in the area, his keys opened a truck parked in the hotel parking lot. Officers located a scale inside a backpack in the truck. They also found methamphetamine packaged similarly to the methamphetamine found earlier in the hotel room.

Defendant later challenged the warrantless searches of the hotel room, his cell phone, and his truck. The court denied his motion to suppress in a written ruling. The court found defendant did not have a reasonable expectation of privacy in the hotel room because he had originally disclaimed any interest in a hotel room at the Heritage Inn or in any local hotels. The court also found that Carter had given her full consent to search the hotel room, and that she had authority to do so, citing the fact that she had paid for the room for the purpose of prostituting herself, that the room was only in defendant's name because she did not have any identification to rent the room, and that she had a key to the room in her possession. The court found defendant had no legal basis to object to the room search or to the contraband found in the room.

The court further found that defendant voluntarily consented to the search of his cell phone, and that there was no evidence any officers had threatened or otherwise coerced him into giving his consent. Finally, the court found the automobile exception to the warrant requirement applied to the search of defendant's truck.

Following the denial of his suppression motion, defendant pleaded no contest to one count of possessing methamphetamine for sale. (§ 11378.) He also admitted an alleged enhancement for a prior drug conviction for the same offense. (§ 11370.2, former subd. (c).) The court imposed an aggregate term of imprisonment of four years four months, consisting of 16 months for the possession offense plus three years for the prior drug conviction. Defendant's sentence was a split sentence under Penal Code section 1170, subdivision (h)(5)(b); the court suspended three years of the sentence and placed defendant on mandatory supervision by the probation department. Defendant timely appealed.

DISCUSSION

IHotel Room Search

Defendant contends the court erred in finding he lacked standing to contest the search of the hotel room because he had disavowed an interest in any area hotel rooms when initially questioned by police. He also argues Carter could not consent to the room search on his behalf, nor could she consent to a search of the camera bag in the room, which he claims was his. We disagree.

" ' "[T]o 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...