People v. Simpson

• Decision Date: 24 July 1998
• Docket Number: No. G020449,G020449
• Citation: People v. Simpson, 76 Cal.Rptr.2d 851, 65 Cal.App.4th 854 (Cal. App. 1998)
• Parties: , 66 Cal.App.4th 231G, 98 Cal. Daily Op. Serv. 5798, 98 Daily Journal D.A.R. 8033 The PEOPLE, Plaintiff and Respondent, v. Richard Andrew SIMPSON, Defendant and Appellant.
• Court: California Court of Appeals

Page 851

76 Cal.Rptr.2d 851

65 Cal.App.4th 854, 66 Cal.App.4th 231G,

98 Cal. Daily Op. Serv. 5798,

98 Daily Journal D.A.R. 8033

The PEOPLE, Plaintiff and Respondent, v. Richard Andrew SIMPSON, Defendant and Appellant.

No. G020449.

Court of Appeal, Fourth District, Division 3, California.

July 24, 1998.

Certified for Partial Publication. ^*

As Modified Aug. 21, 1998.

Review Denied Nov. 18, 1998.

[65 Cal.App.4th 856] Arthur H. Weed, Santa Barbara, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, Associate Justice.

A jury found Richard Andrew Simpson guilty of possessing more than 28.5 grams of marijuana and illegal possession of a firearm. A prior conviction allegation under Penal Code section 667.5, subdivision (b) was found true by the court.

Prior to trial, an Evidence Code section 402 motion was heard to determine the admissibility under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 of statements Simpson made at a police command post immediately preceding the execution of a search warrant at his home. The trial court found Simpson's statement revealing the location of an automatic weapon at his residence admissible under New York v. Quarles (1984) 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, which articulated a "public safety" exception to the Miranda rule. (Id. at pp. 655-657, 104 S.Ct. 2626.) Simpson appeals from that determination and also contends the trial court improperly imposed a sentence for his prior conviction under Penal Code section 667.5, subdivision (b), because the same conviction was used to prove he was a convicted felon in connection with the gun possession charge--a prohibited dual use of facts.

In the published portion of our opinion, we hold that when police officers prepare to execute a search warrant upon premises occupied by a known drug trafficker, having probable cause to believe substantial quantities of illegal drugs will be found but not knowing who else might be present on the property, an objectively reasonable basis exists for permitting them to question the suspect about the presence of weapons and other potential dangers they might encounter without preceding such questions with the warnings ordinarily required by Miranda. In the unpublished part of our opinion, we find the sentence imposed was legally authorized and not based upon any impermissible dual use of facts.

FACTS

Veteran Culver City Police Officer Mike Conzachi received information which eventually led a magistrate to issue him warrants to search four homes, including a residence occupied by Richard Simpson in Orange Park Acres. Conzachi believed Simpson and others named in the warrants were in possession of up to 100 kilos of cocaine and about a half ton of marijuana. He also knew Simpson had several prior arrests, a state conviction for selling cocaine, and a federal conviction involving the importation of approximately 17,000 pounds of marijuana.

Warrant in hand, Conzachi and members of his task force established a command post at Rancho Santiago College and began surveillance of Simpson's house. Around 10:15 a.m., Mrs. Simpson left the residence and drove her child to a nearby elementary school. Before she could return home, she was stopped by an Orange County sheriff's deputy and met by Conzachi, who advised her he had a search warrant for her residence and "was just going to detain her temporarily until [he] was ready to serve" it. She was then taken to the command post at the college to wait.

While Mrs. Simpson cooled her heels, a sheriff's deputy telephoned Simpson and informed him his wife had been in a traffic accident. He told Simpson she was uninjured but needed him to meet her and help make arrangements about the car. The ruse worked: Simpson left the house and was allowed to drive about five blocks before being pulled over. Officer Conzachi "just told Mr. Simpson who I was, the reason for his detention, and that I had a ... warrant to search his residence because I suspected ... he was involved in narcotic trafficking." Simpson was then placed in handcuffs and taken to the college to join his wife pending execution of the warrant.

When Conzachi and Simpson reached the college, within five minutes of the car stop, Conzachi asked "[i]f there were any guns or weapons on the property." Simpson replied "that he did have a gun, that it was in his bedroom, [the] upstairs master bedroom, that it was under a mattress but he did not know whether ... it was loaded." He also specifically identified the weapon as a .380 automatic. In response to further inquiry, Simpson admitted the gun was his and told Conzachi a youngster and the child's nanny were still on the premises, along with 14 Rottweilers--most of which were vicious attack dogs he expected would not welcome officers arriving to search the property.

After this brief conversation, Orange County Animal Control was sent to the scene to secure the Rottweilers, and a search was conducted without incident. While the officers did not find the large quantities of drugs they anticipated, they did locate the automatic weapon and 67.24 grams of marijuana--for which Simpson was placed under arrest.

At the 402 hearing conducted before trial, Conzachi testified that, in his experience, narcotics and guns are part and parcel of the drug trade, and he recounted occasions upon which he had been drawn into gun battles while attempting to serve narcotics related warrants. He explained he asked Simpson whether guns were in his residence solely to ensure the safety of his team and any others who might be present in or around the house when the warrant was served. He testified, "I realistically can't remember the last time ... I encountered, during the service of a search warrant, ... evidence of narcotic trafficking or narcotics that there was not a gun present." Based on this testimony, the court found the public safety exception to Miranda applied and admitted Simpson's statement that a .380 automatic was located under his mattress in the master bedroom.

I

Simpson insists the trial court erred by allowing the prosecution to introduce his statement about the gun in its case-in-chief because the statement was not preceded by the warnings and waivers required by Miranda. We disagree.

Ordinarily, police officers are constrained to precede custodial interrogation by advising the person to be questioned of the right to remain silent, the consequences of failing to take advantage of that right, and the judicially created right to an attorney, which is financed by the public fisc should the person lack the ability to pay for the attorney's services. (Miranda v. Arizona, supra, 384 U.S. at p. 444, 86 S.Ct. 1602.) These two rights--the right to remain silent and the right to an attorney--must be waived knowingly and voluntarily ¹ before questioning begins, and the individual queried must indicate an understanding that any statements made can be used to his or her detriment in court. (Id. at pp. 478-479, 86 S.Ct. 1602; accord People v. Whitson (1998) 17 Cal.4th 229, 244, 70 Cal.Rptr.2d 321, 949 P.2d 18.) When police fail to administer the prophylactic warnings required by Miranda, any statements they obtain are inadmissible in the prosecution's case-in-chief (id. at pp. 492, 494, 86 S.Ct. 1602), although the statements remain available to impeach the defendant who testifies inconsistently at trial. (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Oregon v. Hass (1975) 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570; accord People v. Peevy (1998) 17 Cal.4th 1184, 73 Cal.Rptr.2d 865, 953 P.2d 1212.)

The court that decided Miranda clearly intended its pronouncements be given sweeping effect, declaring that no statement obtained without a valid advisement and waiver could be used against a defendant or exploited for any purpose inconsistent with a defendant's interests during a criminal trial anywhere in the United States. (Miranda v. Arizona, supra, 384 U.S. at pp. 444, 476, 86 S.Ct. 1602.) But times have changed dramatically since 1966. (See, e.g., Amar, The Future of Constitutional Criminal Procedure (1996) 33 Am.Crim. L.Rev. 1123; Whitebread, The Burger Court's Counter-Revolution in Criminal Procedure (1985) 24 Washburn L.J. 471-474.) As a result of the court's own repeated re-examination of the rule, it has become increasingly clear the scope of the Miranda rule, like most every other legal principle, has its limitations.

In Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Oregon v. Hass, supra, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, the United States Supreme Court weighed the benefits of its prophylactic rule against its desire to discourage defendants from personally proffering perjurious testimony, and in the end, Miranda gave way. (Cf. United States v. Havens (1980) 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559, where the court similarly deemed the fourth Amendment and sixth Amendment exclusionary rules less crucial than the need to discourage defendants from providing perjured testimony.) In Michigan v. Tucker (1974) 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182, the Court considered the scope of the rule and concluded a failure to properly administer Miranda warnings did not justify the exclusion of derivative evidence discovered only because the police had exploited the defendant's unwarned statement. ² And in 1984, in New York v Quarles, supra, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, the High Court refined the meaning of Miranda further by defining a situation in which the rule would have no application at all.

In Quarles, police officers were approached by a young woman who told them she had been raped by a man who subsequently...