Filed 11/17/15 P. v. Mendoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061566
v. (Super.Ct.No. SWF1208393)
RAUL MENDOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Sean M.
Rodriquez, and Teresa Toreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
Michelle Rogers and Lindsey M. Ball, under appointment by the Court of Appeal,
for Defendant and Appellant.
1 After the trial court denied his Penal Code section 1538.51 motion to suppress
evidence of a shotgun found during a warrantless search of his home, defendant and
appellant, Raul Mendoza, pled guilty to unlawful possession of a firearm by a convicted
felon (§ 29800, subd. (a)(1); count 1) and admitted one prison prior (§ 667.5, subd. (b))
and one strike prior (§ 667, subd. (e)(1)). After the trial court adjusted for enhancements
and struck the punishment for the prison prior, it sentenced defendant to 2 years 8 months
in state prison.
Defendant’s plea agreement preserved his right to appeal, and he now seeks
reversal of his conviction on the ground the trial court erred in denying his motion to
suppress by concluding: (i) the warrantless search of his home was justified as
community caretaking; (ii) the warrantless search was justified by exigent circumstances;
and (iii) the deputies who searched his home did not exceed the permissible scope of their
warrantless search. Defendant further contends the manner in which the deputies
conducted the search of his home justifies excluding evidence of the gun.
We affirm the judgment because the search was justified under the exigent
circumstances exception to the warrant requirement and the deputies found the shotgun in
a search suited to locating a concealed burglar.
1 All further unlabeled statutory references are to the Penal Code.
2 I
FACTUAL BACKGROUND
At 4:13 p.m. on November 16, 2012, a private alarm company notified the
Riverside County Sheriff’s Department that a security alarm had sounded at defendant’s
home in San Jacinto. The sheriff’s department dispatched a deputy at 4:13 p.m. and he
arrived at the scene at 4:15 p.m. or 4:16 p.m. to investigate. The deputy testified at the
suppression hearing about his investigation and search of the house, which the People
concede occurred without a warrant.
The deputy began by inspecting the front of the house, where he saw nothing out
of the ordinary. Next, he walked around to the side of the house where a wooden gate led
to the backyard. The wooden gate was open, and some slats were broken “like it had
been forced open.” The deputy went into the backyard, where he found the screen from a
rear window propped against the house and the window itself open approximately one
foot.
Based on these facts, the deputy concluded “there might be someone inside that
had broke[n] into the house to commit a burglary.” He “radioed for an additional unit to
come and assist so [they] could search the residence for anybody that might be inside.”
He testified his purpose for searching the house was “[n]ot knowing if there was actually
somebody inside committing a burglary or if someone had broke[n] in and hurt
somebody else that was staying at the house.” While he waited for assistance to arrive,
the deputy listened carefully for any cries for help or “any movement coming from inside
3 the residence.” The deputy testified he did not hear any requests for help, indications of
struggle, or noises of furniture being moved.
When two more deputies arrived, one took up a position in front of the house and
the other helped conduct the search. The deputies announced themselves before entering
the house. They then opened the window wider so they could fit through and climbed
into a bedroom in the back of the house. Once inside, the deputies “checked each room
[they] went into” and “check[ed] the closets or wherever someone might be hiding.” As
they went from room to room, the first deputy testified he continued actively listening for
any noise, but did not hear any shouting for help, crying, struggling, or movement of
furniture.
After searching the first bedroom and a hallway, they reached the master bedroom
at the front of the house, which they were able to enter without force. When they had
entered the room, they saw nothing of immediate concern. The bedroom contained a bed
made up of a frame, a mattress, and a box spring. The deputies did not see anything
protruding from the bed. The bed had sheets and blankets over the mattress and a bed
skirt. When the deputies “lifted the bed skirt, [they] could tell underneath the bed skirt
was a box spring” as well as additional space between the bottom of the box spring and
the floor. The first deputy testified he had found people hiding under beds in the past.
The second deputy lifted the bed skirt and “look[ed] under the bed and noticed that there
was a shotgun lying underneath the bed.” The first deputy then approached the bed,
kneeled, and looked under the bed. He testified that he “could see the back end of [the
gun] and could tell that it appeared to be the butt end of a gun” though he “didn’t know if
4 it was a real gun at that point or not.” The deputy had a flashlight, but did not remember
whether he used it to illuminate the space under the bed. He took the gun out from under
the bed “to verify if it was, in fact, a real shotgun.”
The first deputy testified he estimated the gap between the bed frame and the floor
measured six to eight inches. To look under the bed, he testified that he put “one hand
and one knee on the ground and bent down to look underneath” the bed with his head
“parallel to the floor.” The first deputy could not describe the manner in which the
second deputy had initially searched under the bed because at the time he was “covering
the rest of the room” so he could “make sure that no one comes up behind [the second
deputy] while he’s checking something.” When the second deputy announced he saw a
gun, the first deputy looked over and saw that he was kneeling next to the bed.
An investigator for defendant testified he measured the space between the bed
frame and the ground and found it to be five and a quarter inches. The investigator asked
two members of defendant’s family who were present when he visited the house to try to
crawl under the bed. One was a young man five feet six inches tall who weighed 145
pounds. The other was a child about three and a half years old and three and a half to
four feet tall. Neither person fit under the bed.
Defendant was subsequently arrested for possession of a firearm as a convicted
felon. He moved to suppress evidence of the gun on the basis that it was obtained during
an unlawful warrantless search. The trial court heard testimony of the first deputy and
defendant’s investigator, and ruled the search legal under the community caretaking and
exigent circumstances exceptions to the warrant requirement. The trial court also ruled
5 the deputies did not exceed the proper scope of the search by looking under the bed for a
concealed person.
After the court denied his motion to dismiss, defendant conferred with his attorney
and pled guilty the same day to one count of possessing a firearm as a convicted felon.
The trial court sentenced defendant to 2 years 8 months in state prison. Defendant
preserved his appellate rights, and filed a timely notice of appeal.
II
STANDARD OF REVIEW
A trial court considering a motion to suppress under section 1538.5 is “vested with
the power to judge the credibility of the witnesses, resolve any conflicts in the testimony,
weigh the evidence and draw factual inferences in deciding whether a search is
constitutionally unreasonable.” (People v. Woods (1999) 21 Cal.4th 668, 673.)
Accordingly, on appeal, we defer to all factual findings, express or implied, supported by
substantial evidence. (Id. at pp. 673-674.) However, we exercise our independent
judgment in determining the constitutional significance of those findings. (Ibid.)
III
DISCUSSION
1. Warrantless Entry of Defendant’s Home
“[P]hysical entry of the home is the chief evil against which the wording of the
6 Fourth Amendment is directed.”2 (Payton v. New York (1980) 445 U.S. 573, 585.) Thus,
“searches and seizures inside a home without a warrant are presumptively unreasonable.”
(Groh v. Ramirez (2004) 540 U.S. 551, 559; accord, Payton v. New York, supra, at p.
586.) Nevertheless, “[b]ecause the Fourth Amendment’s ultimate touchstone is
‘reasonableness,’ the warrant requirement is subject to certain exceptions.” (Brigham
City, Utah v. Stuart (2006) 547 U.S. 398, 403.) “Because the People concede that no
warrant was issued . . . they have the burden to prove the warrantless entries were
justified” by an exception to the warrant requirement. (People v. Duncan (1986) 42
Cal.3d 91, 97 (Duncan); People v. Rogers (2009) 46 Cal.4th 1136, 1156.)
The People contend the search was justified under the exigent circumstances
exception to the warrant requirement. The trial court agreed. Defendant contends the
trial court erred in ruling exigent circumstances justified the deputies’ warrantless search
because they did not have probable cause to believe a crime was in progress or that entry
was reasonably required to prevent imminent harm to persons or property. We disagree.
“[W]arrants are generally required to search a person’s home or his person unless
‘the exigencies of the situation’ make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth Amendment.” (Mincey
v. Arizona (1978) 437 U.S. 385, 393-394.) Under this exception, law enforcement
officers may make a warrantless entry into a residence where they have probable cause to
2 We review challenges to the admissibility of evidence obtained in government searches under federal constitutional standards. (People v. Troyer (2011) 51 Cal.4th 599, 605; People v. Woods, supra, 21 Cal.4th at p. 673.)
7 believe exigent circumstances exist making entry reasonably necessary “ ‘to prevent
imminent danger to life or serious damage to property . . . .’ ” (Duncan, supra, 42 Cal.3d
at p. 97, quoting People v. Ramey (1976) 16 Cal.3d 263, 276; see also People v. Celis
(2004) 33 Cal.4th 667, 676 [“The United States Supreme Court has indicated that entry
into a home based on exigent circumstances requires probable cause to believe that the
entry is justified”].) Law enforcement officers justify such a search by “point[ing] to
specific and articulable facts from which [they] concluded that [their] action was
necessary.” (Duncan, supra, at p. 98.)
In evaluating the deputy’s conduct, we undertake “a two-step inquiry: first,
factual questions as to what the officer knew or believed and what action he took in
response; second, a legal question whether that action was reasonable under the
circumstances.” (Duncan, supra, 42 Cal.3d at p. 97.) The People justify the search based
on the fact that the deputy believed a burglary was in progress. Defendant does not
contest that the deputy believed a burglary was in progress or the facts that the deputy
testified to which led him to reach that conclusion.3 Thus, we are left to decide only
whether the deputy’s conclusion that a burglary was in progress and justified a search
was objectively reasonable in view of the specific facts known to the deputy at the time
of the search.
3 Even if the defendant did contest those facts, the trial court implicitly found that the deputy believed a burglary was in progress based on the alarm and evidence of a break-in. That factfinding is supported by substantial evidence and we defer to it.
8 Courts have repeatedly recognized that warrantless home searches are justified
where law enforcement officers reasonably believe a burglary is in progress. (Duncan,
supra, 42 Cal.3d at p. 98; People v. Bradley (1982) 132 Cal.App.3d 737, 743-744; United
States v. Erickson (9th Cir. 1993) 991 F.2d 529, 532-533; United States v. Singer (8th
Cir. 1982) 687 F.2d 1135, 1144 [upholding warrantless entry of residence where
circumstances indicated burglary in progress]; United States v. Estese (6th Cir. 1973) 479
F.2d 1273, 1274 [upholding warrantless search where police observed signs that
apartment door had been pried open].) As the Bradley court explained, “[t]here is a
strong interest in protecting the public, and here, where appearances strongly indicate an
attempted entry and a burglary in progress, the officers’ subjective belief is not
unreasonable as a matter of law.” (People v. Bradley, supra, at p. 744.)
The People offer the same justification in this case, and defendant concedes that
“[d]uring the course of a burglary investigation, a warrantless home entry is . . . justified
when the officer has objective facts supporting the reasonable belief the burglary is in
progress.” Thus, the question we face is whether the facts known to the deputy at the
time of the search support an objectively reasonable belief that a burglary was in
progress. (Duncan, supra, 42 Cal.3d at pp. 97-98 [“As a general rule, the reasonableness
of an officer’s conduct is dependent upon the existence of facts available to him at the
moment of the search or seizure which would warrant a [person] of reasonable caution in
the belief that the action taken was appropriate. [Citation.]”].)
We hold that the deputy articulated specific facts that show he had an objectively
reasonable basis to believe that a burglary was in progress in defendant’s home. Our
9 analysis begins with the fact that the first deputy on the scene was responding to a
security alarm. The sheriff’s department received a call from the alarm company and the
deputy was dispatched at 4:13 p.m. The deputy arrived at defendant’s home within two
or three minutes. Shortly after arriving, he found evidence that someone had broken into
the property. Though nothing was amiss at the front of the house, the gate to the
backyard was open and broken “like it had been forced open.” At the back of the house,
the deputy found evidence that someone had forced entry to the house itself. A screen
had been removed from a window and the window was open. In our judgment, these
facts, taken together, gave the deputy an objectively reasonable basis for concluding a
burglary was in progress. (See People v. Bradley, supra, 132 Cal.App.3d at pp. 743-744
[holding officers reasonably believed a burglary was in progress where a neighbor
reported the resident was away and officers found a glass pane broken out of door and an
open window]; People v. Parra (1973) 30 Cal.App.3d 729, 734 [Fourth Dist., Div. Two]
[holding officers reasonably believed a burglary of a business was in progress where they
found front door open and unlocked after business hours].)
The facts of this case are quite similar to the facts that led the California Supreme
Court to endorse a warrantless home search in Duncan. There, a neighbor, rather than an
alarm company, notified the police that a burglary may be in progress. (Duncan, supra,
42 Cal.3d at p. 95.) As in this case, the police officer arrived at the scene promptly.
(Ibid.) After finding the doors locked, the officer found a box containing a television set
and other items on the ground outside an open back window. (Id. at pp. 95-96.) He
concluded that a burglary was in progress and perpetrators remained inside. (Id. at p. 96.)
10 He then entered the house to conduct a search. (Ibid.) Once inside, the officer found no
burglars, but did find a narcotics laboratory. (Ibid.)
Defendant attempts to distinguish Duncan on the basis that the deputy in this case
did not find a box of possibly stolen items lying outside the open window. We do not
find the difference so powerful. The box of goods seemed to show that a burglary had
been committed, but it is not clear whether it better supported the conclusion that the
crime was in progress or that it had been interrupted. In any event, though he did not find
possibly stolen property, the deputy in this case did find affirmative evidence that
someone had made a forced entry on the property. There was no such evidence in
Duncan, and we believe it is strong support for the deputy’s conclusion that a burglary
was in progress. Combined with the burglar alarm and the deputy’s very quick response,
we hold the facts as the deputy understood them at the time were sufficient to justify a
reasonable person to conclude a burglary was in progress.
Defendant contends the government must show both that a burglary was in
progress and that “the officer’s immediate entry was reasonably required to thwart
imminent danger.” We disagree. The fact that a burglary is in progress may establish on
its own that the officer’s immediate entry was reasonably required. (See Duncan, supra,
42 Cal.3d at pp. 97-98; People v. Lujano (2014) 229 Cal.App.4th 175, 183 [Fourth Dist.,
Div. Two] [“A burglary in progress may constitute an ‘exigent circumstance,’ as that
phrase is used in Fourth Amendment jurisprudence”], italics added.) As the high court
held in Duncan, “[i]t would have been poor police work indeed for an officer to fail to
investigate under circumstances suggesting a crime in progress.” (Duncan, supra, at pp.
11 98-99.) The benchmark is reasonableness, and the People have shown the deputies acted
reasonably in conducting a warrantless search when faced with what they reasonably
believed to be a burglary in progress.4
2. Scope of Warrantless Search
Having upheld the propriety of the deputies’ entrance into defendant’s home, we
must now consider whether their search, which turned up a shotgun, was suitably limited
to the purpose of the search. Defendant contends the deputies acted unreasonably by
looking under a bed for concealed suspects. We disagree.
“[T]he warrantless search of a dwelling must be suitably circumscribed to serve
the exigency which prompted it.” (People v. Hill (1974) 12 Cal.3d 731, 755 overruled on
other grounds by People v. De Vaughn (1977) 18 Cal.3d 889; Mincey v. Arizona, supra,
437 U.S. 385 at p. 393; People v. Troyer, supra, 51 Cal.4th at p. 612.) Here, the same
facts that justified the deputies’ entering the home justified a search of places where an
intruder could be concealed, including under the bed in the master bedroom.
The deputies conducted the search because they believed that a burglary was in
progress and they entered the house “so [they] could search the residence for anybody
4 The People contend the unwarranted search was also permissible under a community caretaking exception to the warrant requirement articulated by a plurality in People v. Ray (1999) 21 Cal.4th 464, 477 (lead opn. of Brown, J.). The trial court accepted that justification. Defendant contends the trial court erred because the deputies did not have a reasonable belief entry was necessary to provide aid to “an injured occupant [who] is inside the house and needs immediate medical attention.” We do not reach this issue because the search was justified by exigent circumstances.
12 that might be inside.”5 Before the deputies entered the home, they called out to alert
anyone inside that the police had arrived and were entering. It was therefore reasonable
for the deputies to think anyone who was actively burglarizing the home might have
hidden to avoid arrest. When they entered the master bedroom, the deputies found a bed
with a bed skirt that obscured what lay underneath. The first deputy testified that while
carrying out previous police searches he had found people hiding under beds. It was
therefore reasonable to think that a person inside the house who was committing a
burglary and aware of the police search might attempt to hide underneath the bed in the
master bedroom.
Defendant contends searching under the bed was unreasonable because there was
not enough room there for a person to hide. In support of this position, he offered the
testimony of an investigator who inspected the scene months later. The investigator
found the space under the bed to be five and a quarter inches high. He then enlisted the
help of a grown man and a child who was three and a half years old to demonstrate that
the space was too small to have been a hiding place. These facts are largely irrelevant.
The question we must answer is whether the deputies acted reasonably under the
circumstances and with the knowledge they possessed at the time of the search. (See
Duncan, supra, 42 Cal.3d at pp. 97-98.) When the deputies entered the room, the bed
had sheets and blankets over the mattress and a bed skirt covered a box spring and the
5 The deputy also testified he entered the house to search for anyone who may have been injured in the course of the suspected burglary, and the People ask us to affirm on that basis as well. We do not reach that issue because it is not necessary to resolve the appeal.
13 space beneath the bed. Only by lifting the bed skirt could they see there was a box spring
as well as additional space between the bottom of the box spring and the floor. Thus the
deputies could not see whether anyone was under the bed without bending down to pull
up the skirt, and it was difficult to judge how large a space the bed skirt covered. Indeed,
the photographs taken by defendant’s investigator make it clear the space covered by the
bed skirt could easily have hidden a full grown man. It was under those circumstances
that the second deputy lifted the bed skirt and “look[ed] under the bed and noticed that
there was a shotgun lying underneath the bed.”
It may be that no one could have fit under the bed in defendant’s master bedroom.
However, we do not require deputies to be correct in the judgments they make while
conducting searches; we require them to be reasonable. (United States v. Estese, supra,
479 F.2d at p. 1274 [“Subsequently facts indicated that [the burglar] had made off with
appellant’s TV before the officers arrived. On their arrival the officers had no way of
knowing this, but there was probable cause for the officers on the scene to believe that a
burglary had been or was being committed and to search the apartment for the burglar”].)
We hold that these deputies were reasonable to conclude they should lift the bed skirt and
check the space under the bed for suspects.
Defendant also contends the deputies improperly expanded the scope of the search
by kneeling to look under the bed. We disagree. “It has long been settled that objects
falling in the plain view of an officer who has a right to be in the position to have that
view are subject to seizure and may be introduced in evidence.” (Harris v. United States
(1968) 390 U.S. 234, 236; Kentucky v. King (2011) 563 U.S. 452 [131 S. Ct. 1849, 1858]
14 [“[L]aw enforcement officers may seize evidence in plain view, provided that they have
not violated the Fourth Amendment in arriving at the spot from which the observation of
the evidence is made”].) We have concluded the deputy was entitled to lift the bed skirt
and look under the bed. By lifting the bed skirt, he revealed the shotgun. The deputies
therefore lawfully seized the shotgun as being in plain view during the lawful search for a
burglar. (United States v. Estese, supra, 479 F.2d at p. 1274 [“The discovery of the
sawed-off shotgun under the water bed in the course of the search . . . should be regarded
as invoking the plain view doctrine”].)
Defendant also argues the deputies improperly expanded their search by using a
flashlight to illuminate the gun. However, it is black letter law that police may use a
flashlight to see what would be in plain sight if not for a lack of ambient light. (E.g.,
United States v. Dunn (1987) 480 U.S. 294, 305 [“[T]he officers’ use of the beam of a
flashlight, directed through the essentially open front of respondent’s barn, did not
transform their observations into an unreasonable search within the meaning of Fourth
Amendment”]; People v. Chavez (2008) 161 Cal.App.4th 1493, 1501 [“It is well
established law that the observation of that which is in the plain sight of an officer
standing in a place where he has a lawful right to be does not constitute a search and such
observation is lawful regardless of whether the illumination permitting the observation is
natural light, artificial light, or light from a flashlight held by the officer viewing the
object in question”].)
Once one deputy spotted the shotgun, the deputies were entitled for their own
safety and the safety of anyone else in the house to investigate further and secure the
15 weapon. (People v. Gallegos (2002) 96 Cal.App.4th 612, 628, fn. 13.) It was therefore
proper for the deputies to confirm the object was a shotgun and secure it. Those actions
were reasonable, and did not improperly expand the initial search.
Defendant contends the Court of Appeal decision in People v. Lovelace (1981)
116 Cal.App.3d 541 supports his position that the deputies in this case improperly
expanded the scope of their search. We disagree. In Lovelace, the Court of Appeal held
that officers found evidence the defendant was growing marijuana only by standing in an
alley and peering through gaps and knotholes in defendant’s privacy fence. The court
held that the defendant had a subjective expectation of privacy that was objectively
reasonable and that the officer “viewed the marijuana plants from a vantage point not
expected to be used by the public.” (Id. at pp. 548, 554.) The problem with the search in
Lovelace was that the officer’s vantage point “did not meet the constitutional standard of
reasonableness.” (Id. at p. 554.) In this case, the deputies were searching for an intruder
they thought may be concealed in the house. They reasonably concluded they should
look under a bed in conducting their search. Their vantage point in kneeling next to the
bed was therefore reasonably designed to accomplish this permissible goal.
Accordingly, we uphold the trial court’s ruling that the search was lawful.6
6 Defendant contends we should apply the exclusionary rule and suppress the gun evidence deputies obtained in the search. (See Davis v. United States (2011) __ U.S. __ [131 S. Ct. 2419, 2426].) However, the exclusionary rule does not apply because we conclude the search was lawful and did not violate defendant’s Fourth Amendment rights.
16 IV
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
CODRINGTON J.