Filed 8/28/14 P. v. Morrison CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067257
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF140836A)
                   v.

SHAUNTINA MARIA MORRISON,                                                                OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Louis P.
Etcheverry and J. Eric Bradshaw, Judges.†
         Tutti Hacking, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Gomes, J. and Poochigian, J.
†     Judge Etcheverry presided over the combined preliminary hearing and motion to
suppress hearing. Judge Bradshaw presided over the renewed suppression hearing.
       Appellant, Shauntina Maria Morrison, was charged with felony possession of
heroin (Health & Saf. Code, § 11350, subd. (a)) and possession of narcotics paraphernalia
(Health & Saf. Code, § 11364.1). In addition, it was alleged she had suffered a “strike.”1
Appellant moved to suppress evidence (Pen. Code, § 1538.5) and the court, at a hearing
on that motion combined with the preliminary hearing, summarily denied the motion.
Subsequently, appellant renewed her suppression motion, submitted the motion on the
preliminary hearing transcript, and the court, by minute order, summarily denied the
renewed motion.
       Thereafter, pursuant to a plea agreement, appellant pleaded no contest to both
charges and admitted the strike allegation. The court struck the strike and admitted
appellant to Proposition 36 drug treatment probation, i.e., probation under the Substance
Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210 et seq.).
       On appeal, appellant’s sole contention is that the court erred in denying her
suppression motion. We will reverse.
                                         FACTS
       At approximately 10:55 a.m., on February 24, 2012, Bakersfield Police Officer
Eric Littlefield, four other police officers and Probation Officers Crawford2 and Gregory
Bittle arrived at a house (the house) in Kern County to conduct a “probation compliance
search” of Rodger Stugard.3 Littlefield and the other officers parked “several residences”
away from the house and as they walked toward it, Littlefield saw appellant and Stugard
“exiting [the] yard of the [house] and getting into a vehicle.” Stugard began to drive off,

1       We use the term “strike,” in its noun form, as a synonym for “prior felony
conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-
(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a
defendant to the increased punishment specified in the three strikes law.
2      Probation Officer Crawford’s first name does not appear in the appellate record.
3       Except as otherwise indicated, our factual summary is taken from Officer
Littlefield’s testimony.


                                             2
at which point, Littlefield “ran up to the car” and “start[ed] banging on the back of the
car,” “yelling ‘stop the car.’” The car stopped approximately “two houses away” from
the house. Littlefield directed appellant to get out of the car, and appellant did so. At
that point, Officer Crawford conducted a patsearch of appellant. No contraband or
weapons were found.
       At some point thereafter, Littlefield walked appellant to the house, where
Littlefield stood in the doorway while appellant, at Littlefield’s request, went inside and
“wrangled the numerous dogs into bedrooms and garages” so that officers could safely
enter the house.
       Officer Bittle testified to the following. He participated in a “protective sweep” of
the house, and after determining there was no one inside, he came back outside and spoke
to appellant, who was standing in the front yard. Officer Crawford was standing nearby.
Bittle asked appellant which room belonged to Stugard. Appellant told Bittle “it was the
northeastern bedroom.” Bittle then asked appellant if there was anything in the house
that could harm him. Appellant responded there was a “loaded syringe” located in a box,
in a nightstand. This exchange occurred approximately five to 10 minutes after the stop
of the car. After talking to appellant, Bittle reentered the house, searched the room
appellant had indicated and found a syringe “with a brown liquid substance in it,” located
in a box, in a nightstand.
       It was stipulated at the hearing that the substance inside the syringe was heroin, in
a usable amount.
       After observing the syringe Bittle had found, Officer Littlefield “advise[d]
[appellant] of her rights under Miranda.”4 Thereafter, appellant stated the syringe and
heroin belonged to her. At least 10 minutes elapsed from the time the car was stopped to
the time Littlefield “Mirandiz[ed]” appellant. At some point, Littlefield learned from


4      See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                              3
both appellant and Stugard that the two shared the bedroom in which the syringe was
found.
                                      DISCUSSION
         “The Fourth Amendment to the United States Constitution, made applicable to the
states by the Fourteenth Amendment, guarantees the right to be free of unreasonable
searches and seizures.” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A “brief
investigative stop[]” of a person, commonly referred to in the case law as a detention, is a
seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th
224, 229.) Appellant argues that the incriminating evidence obtained by the officers,
including the syringe containing heroin found in the house and appellant’s admissions
after the syringe was found, were the products of a constitutionally unreasonable
detention and therefore should have been suppressed. The People do not dispute
appellant was subject to a seizure for Fourth Amendment purposes from the time she was
directed to get out of the car, but they argue that the detention was not constitutionally
unreasonable because the length of the detention was “minimal,” the scope of the search
of the house was limited to determining whether Stugard was in compliance with the
terms of his probation, there was “no evidence of an independent investigatory purpose or
motive focusing on appellant,” appellant’s identity and her connection to the house could
not be immediately determined, and the detention was appropriate “once it was learned”
appellant lived in the house with Stugard.
         Our analysis begins with Michigan v. Summers (1981) 452 U.S. 692 (Summers).
In that case, police officers executing a search warrant at a house encountered the
defendant leaving the house. The officers detained the defendant while they searched the
house, and during the search they found drugs. Upon learning the defendant owned the
house, police arrested him, searched his person and found heroin in his pocket. The
defendant moved to suppress the heroin, and the trial court denied the motion. The
Supreme Court upheld the denial of the suppression motion.


                                              4
       The “dispositive question” was the legality of the detention. (Summers, supra,
452 U.S. at p. 694.) The court recognized the detention was a seizure for Fourth
Amendment purposes and that at the outset of the detention the police lacked probable
cause to arrest the defendant. However, the court concluded: “[S]ome seizures
admittedly covered by the Fourth Amendment constitute such limited intrusions on the
personal security of those detained and are justified by such substantial law enforcement
interests that they may be made on less than probable cause, so long as police have an
articulable basis for suspecting criminal activity.” (Summers, at p. 699.) Whether any
given seizure can be justified under this less-than-probable-cause standard depends on the
“character of the official intrusion and its justification,” and a significant factor in
evaluating the character of the intrusion in Summers was that it was pursuant to a search
warrant, i.e., a neutral magistrate had concluded there was probable cause to believe that
the law was being violated in the house. (Id. at p. 701.) “The connection of an occupant
to [a house being searched pursuant to a search warrant] gives the police officer an easily
identifiable and certain basis for determining that suspicion of criminal activity justifies a
detention of that occupant.” (Id. at pp. 703-704, fn. omitted.) “Thus, for Fourth
Amendment purposes, we hold that a warrant to search for contraband founded on
probable cause implicitly carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted.” (Id. at p. 705, fns. omitted.)
       In People v. Glaser (1995) 11 Cal.4th 354 (Glaser), the California Supreme Court
applied the principles enunciated in Summers to another case involving the detention of
an individual during the execution of a search warrant. In Glaser, about 20 seconds after
the defendant arrived at a house and was opening the gate to the property, police officers
arrived to search the house pursuant to a search warrant. The officers detained the
defendant while one of their number went inside to help secure the interior of the house,
and then returned to the area outside where the defendant was being detained. The issue
before the court was the legality of that initial detention.


                                               5
       Our Supreme Court found the detention was “justified by the need to determine
[the] defendant’s identity and connection to the premises and to protect the officers’ own
safety.” (Glaser, supra, 11 Cal.4th at p. 360.) The court balanced “the extent of the
intrusion against the government interests justifying it, looking in the final and
dispositive portion of the analysis to the individualized and objective facts that made
those interests applicable in the circumstances of the particular detention.” (Id. at p. 365.)
After applying this test, the court found “‘specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.
[Citation.]” (Id. at p. 373.) Specifically, the court stated: “The existence of a warrant to
search a home for illegal drugs, the presence of an unknown person on the premises when
police begin the search, and the officer’s inability to immediately determine the person’s
identity and connection to the premises without effecting a detention, are specific and
articulable facts that, on balance, reasonably warrant a detention limited to the time and
means needed to resolve the questions of identity and occupancy and to protect the safety
of those present while those questions are resolved.” (Id. at pp. 374-375.)
       This court relied in large part on Summers and Glaser in People v. Hannah (1996)
51 Cal.App.4th 1335 (Hannah) in upholding the validity of a detention in a case in which
a search warrant was not involved. In Hannah, police officers, looking for a juvenile
with an outstanding arrest warrant, went to an apartment and, with the consent of the
woman who answered the door, entered and saw the defendant and another man in the
living room. The officers directed the two men to remain seated, and one of the officers
searched the apartment in an effort to determine if the defendant was present and if there
were any weapons in apartment, while two other officers remained in the living room.
Shortly thereafter, upon noticing the defendant’s eyes were dilated and, suspecting the
defendant was under the influence, officers arrested the defendant.
       Citing Glaser and Summers, the court noted, “Because a search warrant
establishes there is probable cause to believe that criminal activity is being conducted at a


                                              6
given location, it adds additional credence to the need to detain an individual found there
to protect the safety of the officers involved in the search.” (Hannah, supra, 51
Cal.App.4th at p. 1345, italics added.) However, the court stated the existence of a
search warrant “is but one factor” for a court to consider in determining “the
governmental interest involved” in a detention. (Id. at p. 1343.)
       In People v. Matelski (2000) 82 Cal.App.4th 837 (Matelski), the court applied
Summers, Glaser and Hannah to the same situation presented by the instant case, viz., a
detention in the context of a probation search of a third party. Police officers went to a
home to conduct a probation search of a person named Michael Mitchell. The officers
were “prompted by the fact” that Mitchell had failed a drug test. (Matelski, at p. 841.)
As the police were arriving, the two defendants, Mr. and Ms. Matelski, were walking out
the front door. One of the officers directed the defendants to “‘Come over here.’” (Ibid.)
The officers “explained to the defendants that a condition of Mr. Mitchell’s parole [sic]
prevented him from associating with persons who were convicted felons.” (Ibid.) The
officer then asked them for identifying information in order to determine if they were
convicted felons. Subsequently, a warrant check revealed that both of the defendants had
outstanding arrest warrants, and officers arrested them, searched them, and found
methamphetamine and marijuana pipes in Ms. Matelski’s purse.
       In a two-to-one decision, the majority held the detention and subsequent search
did not violate the defendants’ Fourth Amendment rights. The officer’s questioning of
the defendants to ascertain their identity was justified, in part, because although there was
no need to determine the defendants’ connection to the premises, as in the cases
involving search warrants, “there was a need to determine [the] defendants’ connection to
the probationer because the probationer was prohibited by his general terms of probation
from consorting with convicted felons.” (Matelski, supra, 82 Cal.App.4th at p. 850.)
The majority concluded: “The officers simply had no other way to enforce the probation
term that Mr. Mitchell not associate with known felons unless they could identify his


                                             7
associates and determine whether they were known felons or not. They did so in a
minimally intrusive manner, and we find that the intrusion did not violate the privacy
rights of [the] defendants. Thus, if we balance the privacy interests of the defendants,
who were associating with the probationer, against the governmental interests in
enforcing a valid term of probation, we find that the governmental interests outweighed
the brief and minimally intrusive detention of the defendants for the purpose of learning
their identity in order to determine if they were known felons.” (Id. at pp. 852-853.)
       In addition, the majority “emphasize[d] that this was not a suspicionless
intrusion.” (Matelski, supra, 82 Cal.App.4th at p. 851.) “[T]he officers were not acting
randomly.” (Id. at p. 853.) “Instead, the officers were at the residence to enforce
probation terms against Mr. Mitchell because he had flunked a drug test.” (Id. at p. 852.)
       People v. Rios (2011) 193 Cal.App.4th 584 (Rios) also dealt with a detention in
the context of a probation search. In that case, on July 14, 2007 (July 14), six officers
went to the home of juvenile probationer R.R. The officers were “aware that the
conditions of R.R.’s probation included orders to not associate with gang members, and
search terms.” (Id. at p. 589.) In addition, some two months earlier, during a home visit
by officers, R.R. had admitted being under the influence of methamphetamine, and
officers found drug paraphernalia and gang tagging in the house. When officers entered
the home on July 14, with permission, the defendant Rios was sitting on a couch near the
front door. Officers asked Rios questions, including his name and address, and Rios
repeatedly answered that “he was not doing anything.” (Ibid.) One of the officers
noticed Rios had gang tattoos. Shortly thereafter, Rios moved his body in such a way as
to make it appear he was reaching for a weapon. After refusing the officers’ requests to
stand up, an officer grabbed Rios’s wrist and after a struggle, a gun fell out of the front of
Rios’s shirt area.
       This court assumed Rios was detained from the time of the officers entry, and
found the detention constitutionally reasonable. After discussing Summers, Glaser,


                                              8
Hannah and Matelski, this court reasoned: “In our view, Matelski is factually similar and
legally persuasive. Although the probation officers in Rios’s case had no arrest or search
warrant, they were conducting a valid home visit to a probationer who had violated his
probation in the recent past. They had the right to enter and search for him, he was
subject to gang and drug conditions, and Rios had what reasonably appeared to be visible
gang tattoos on his face and hand. Under the circumstances, they could briefly detain
him to ascertain his identity and relationship to the probationer and the probationer’s
residence.” (Rios, supra, 193 Cal.App.4th at p. 595.)
       As the foregoing authorities make clear, our task is to balance “the extent of the
intrusion against the government interests justifying it.” (Glaser, supra, 11 Cal.4th at p.
365.) “Where, as here, a motion to suppress is submitted to the superior court on the
preliminary hearing transcript, ‘the appellate court disregards the findings of the superior
court and reviews the determination of the magistrate who ruled on the motion to
suppress, drawing all presumptions in favor of the factual determinations of the
magistrate, upholding the magistrate’s express or implied findings if they are supported
by substantial evidence, and measuring the facts as found by the trier against the
constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent
judgment in determining whether, on the facts presented, the search or seizure was
reasonable under the Fourth Amendment. [Citation.]’ [Citation.]” (People v. Hua
(2008) 158 Cal.App.4th 1027, 1033.)
       We agree with the People that the intrusion in the instant case was minimal. It
was relatively brief, and involved virtually no show of official force. (See Hannah,
supra, 51 Cal.App.4th at p. 1344 [in finding detainee was subjected to minimal intrusion,
relevant factors included no handcuffing or police display of weapons, and detention was
“at most, several minutes”].)
       We find Matelski and Rios particularly instructive on the extent-of-intrusion issue.
In each case, as indicated above, the court found that the detention of an individual as


                                             9
police were attempting to conduct a probation search was justified by the government
interest in conducting such a search, even though, as in the instant case, there was nothing
to indicate that the person detained was violating the law. There were, however, other
factors present in Matelski and Rios that were not present in the instant case.
       The Matelski court stated “there was a need to determine [the] defendants’
connection to the probationer because the probationer was prohibited by his general
terms of probation from consorting with convicted felons.” (Matelski, supra, 82
Cal.App.4th at p. 850, italics added.) Thus, the record contained a specific, articulable
fact that reasonably warranted the intrusion—the existence of a certain probation
condition. By detaining the Matelskis and questioning them as to their criminal history,
the police might obtain information establishing a probation violation. Thus, the
detention served the important law enforcement interest of assisting the police in
determining if the probationer was in violation of the terms of his probation. And as the
court explained, questioning the defendants was the only way to accomplish this
important function.
       Rios is similar. A term of probation prohibited the probationer from associating
with gang members and the defendant, sitting in the living room of the probationer’s
home, had visible gang tattoos. Because of the gang association condition of probation
and the evidence the defendant had some gang connection, detaining the defendant to
question him was justified by the police interest in determining whether the probationer
had violated his probation.
       In the instant case, by contrast with both Matelski and Rios, there is nothing in the
record to indicate the existence of a probation condition or any other basis upon which
the police could have formed a suspicion that appellant had information she could have
provided the officers that would have enabled the officers to enforce the terms of
Stugard’s probation.




                                             10
       In addition, the probation search in Matelski was “prompted” (Matelski, supra, 82
Cal.App.4th at p. 841) by the fact that the probationer had recently failed a drug test, and
for this reason, the court “emphasize[d]” (id. at pp. 851, 853), police had a suspicion
founded on articulable facts that the probationer could be in violation of probation.
“[T]he officers were at the residence to enforce probation terms against Mr. Mitchell
because he had flunked a drug test.” (Id. at p. 852, italics added.) Similarly, in Rios, the
search was not suspicionless, in that police were aware the probationer had recently
violated his probation.
       Here, there is nothing in the record to suggest that the officers, in conducting a
“probation compliance search,” were acting on facts that might give rise to a suspicion
that Stugard was in violation of probation. Insofar as the record reveals, the police, in the
language utilized in Matelski, were “acting randomly.” (Mateleski, supra, 82
Cal.App.4th at p. 853.)5
       The authorities we have discussed here establish the following. A brief
investigative detention on less than probable cause may be justified “so long as police
have an articulable basis for suspecting criminal activity.” (Summers, supra, 452 U.S. at
p. 699.) In some cases, like Summers and Glaser, the existence of a search warrant
provides the requisite basis for suspecting criminal activity. In the only two probation
search cases cited and discussed by the parties—and we are not aware of any others—
other factors perform that function.
       None of these factors is present in the instant case. Here, there was no search
warrant, no evidence appellant was in violation of the law, and no evidence there was any

5       In the opposition to defendant’s renewed suppression motion, the prosecutor
raised the additional theory of the independent source doctrine based on the supposition
that the search of the house was otherwise valid because of Stugard’s probationary status.
However, this theory was not factually supported because the prosecutor had failed to
introduce any evidence at the preliminary hearing of Stugard’s prior conviction, the terms
and conditions of his probation, whether he was subject to a search condition, or the
nature and extent of a search condition. Thus, we need not address this issue on appeal.


                                             11
criminal activity in progress. There was also no evidence, such as evidence of recent
probation violation, indicating Stugard might be in violation of probation. And there was
no evidence, such as the gang tattoos in Rios or the existence of a no-association-with-
felons parole term in Matelski, that suggested that detaining and questioning appellant
might lead to the discovery of a probation violation or any other wrongdoing.
       We recognize law enforcement has a legitimate interest in conducting probation
searches to monitor compliance with probation terms, regardless of whether the police
have reason to believe the probationer is actually in violation of those terms, and we
further recognize that the intrusion on appellant’s privacy rights was minimal. However,
in our view, these factors did not justify the intrusion on appellant’s Fourth Amendment
protected interests that occurred here by virtue of the detention, in the absence of any
articulable facts (1) from which it could be inferred that the police had reason to believe
the probationer might be in violation of probation or the detention was necessary to
obtain from appellant information that would establish a probation violation, or (2) that in
some other way gave rise to a reasonable suspicion that some criminal activity was afoot.
Thus, the detention was unlawful, and the incriminating evidence obtained by the
officers, including the contraband found in the house and appellant’s statements to police,
should have been suppressed as the products of the unlawful detention. (United States v.
Crews (1980) 445 U.S. 463, 470.) The trial court therefore erred in denying appellant’s
suppression motion.6




6       Appellant makes the following arguments: The detention was unlawful because
the patsearch of appellant was unlawful; her incriminating statements, which led to the
seizure of the syringe and heroin, were not preceded by Miranda advisements; the
protective sweep of the house was unlawful; and the search of the house cannot be
justified as a valid probation search. Because we reverse on the grounds discussed above,
we need not address these contentions.


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                                       DISPOSITION
       The judgment is reversed. The cause is remanded to the trial court with directions
to grant appellant’s Penal Code section 1538.5 motion, and vacate appellant’s no contest
pleas and admission of the strike allegation, if appellant makes an appropriate motion
within 30 days of the issuance of the court’s remittitur. If no such motion is made, the
trial court shall reinstate the judgment.




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