Filed 6/20/13 P. v. Meves 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065386
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. RF006314A)
                   v.

ROCKY RENO MEVES,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Kane, J. and Peña, J.
                                    INTRODUCTION
       Appellant Rocky Reno Meves contends the trial court erred in denying his motion
to suppress evidence. Specifically, Meves asserts (1) the deputy sheriff was within the
curtilage of his (Meves’s) home, which was constitutionally protected; (2) the deputy
unreasonably was within the curtilage; and (3) the subsequent search and seizure was
unconstitutional. The trial court’s factual finding that the deputy was not within the
curtilage was supported by substantial evidence. Regardless, mere presence within the
curtilage of a residence does not constitute an unlawful entry and unconstitutional search.
The deputy reasonably was in the location from where he made his observations. We
will affirm the trial court’s denial of the suppression motion.
                    FACTUAL AND PROCEDURAL SUMMARY
       On March 28, 2012, Kern County Deputy Sheriff Darrin Clodt was in the small
mining town of Johannesburg in rural Kern County. Clodt was in a patrol car with his
partner, Deputy Sheriff Ralph Parsons. Clodt and Parsons were headed to 406 Goler
Road in Johannesburg to serve a no-bail warrant on Ralph Brisbon. Clodt had extensive
previous training in the recognition of individuals who were under the influence of
controlled substances.
       Goler Road is a dirt road and there are no dividing lines separating one property
from another. When the deputies arrived at 406 Goler Road, Clodt looked to his right
from the patrol car and saw Meves, who was standing about 20 yards from the patrol car.
There was a house at the location. The area between the deputies and Meves was “desert
type,” with no lawn or fence between the deputies and Meves. Parsons testified that
when Meves was first approached by the deputies, Meves was standing about 15 feet
west of the residence on the property.
       Clodt left the patrol car, crossed the desert-like area, and approached Meves,
whom he knew from previous contacts. Clodt noticed Meves had his hand in his pocket,
was shuffling back and forth, and was trembling. Meves spoke rapidly and was not able

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to stand still. Clodt formed the opinion that Meves was under the influence of a “central
nervous system stimulant.”
       Clodt asked Meves to remove his hand from his pants pocket. When Meves did
so, he produced a knife and handed it to Clodt. When Clodt began a patdown search,
Meves admitted he had methamphetamine in his pocket. A subsequent search of Meves
disclosed two packages of methamphetamine and a hypodermic syringe. The deputies
placed Meves under arrest.
       Meves was charged with possession of methamphetamine, using or being under
the influence of methamphetamine, and possession of narcotics paraphernalia. It also
was alleged that Meves had served a prior prison term and had suffered a prior strike
conviction. Meves pled not guilty and denied the special allegations.
       On May 3, 2012, Meves filed a motion to suppress the evidence pursuant to Penal
Code section 1538.5.1 The motion challenged the search as presumptively illegal
because it was a warrantless search. The People filed opposition and argued that
approaching Meves to talk to him about Brisbon’s whereabouts while Meves was
outdoors did not constitute a detention or unlawful entry, that after making contact Clodt
had probable cause to arrest Meves, and that thereafter a lawful patdown and search
incident to arrest were conducted.
       The motion to suppress was heard on June 8, 2012. At the suppression hearing,
three photographs of the scene where Meves was arrested were admitted into evidence.
The photographs were marked defense exhibits A, B, and C. On October 29, 2012, this
court granted a motion to augment the record on appeal to include these three
photographs. The three photographs were of the property located at 406 Goler Road;
however, according to the testimony at the suppression hearing, there were differences


       1All   further statutory references are to the Penal Code unless otherwise specified.



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between what was shown in the photographs and the condition of the real property on
March 28, 2012, when Meves was arrested.
       Exhibit C shows what appears to be a swath of dirt road; to one side of the picture
is a house with trees around it and a low stone fence that encloses the trees; the house is
visible. A circle with an “X” inside is drawn on exhibit C, indicating the location where
Meves was standing when Clodt approached him. The circled “X” mark indicates a
location that is some distance from the house—outside of the area that is enclosed by the
low stone fence—and is in an unimproved desert-like area. In the background of exhibit
C is a corrugated metal fence with a “No Trespassing” sign on it; the fence is several feet
in back of where the circled “X” is marked. Exhibits A and B depict what is on the other
side of the corrugated fence. That area appears to be an area that is littered with junk and
abandoned items.
       Clodt testified that the corrugated metal fence depicted in the photographs was not
present on March 28, 2012.
       Parsons testified that what appeared to be a “No Trespassing” sign attached to the
corrugated metal fence was not present on March 28.
       Kyla Gambill, who lived with Meves at the time of his arrest, testified that on
March 28, 2012, the residence at 406 Goler Road was fenced on three sides, but there
was no fence between the roadway and where Meves was detained. Gambill also
testified that a metal gate and a wooden gate shown in the photographs were not present
on March 28.
       The trial court determined from the testimony and a review of the exhibits that it
appeared “the area where the deputy approached [Meves], minus the metal fence that did
not exist at the time, is wide open to the street and it’s a continuous dirt area that goes all
the way from the street into an area that looks somewhat like a junkyard.” The trial court
found that the deputies were contacting Meves on an unrelated matter pertaining to a
warrant for an acquaintance of Meves’s, that once contact with Meves was made

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symptoms of being under the influence of a controlled substance were noted, and that
there was no violation of the law in the arrest and search.
       After the denial of the suppression motion, Meves pled no contest to possession of
methamphetamine and admitted the prior prison term. The trial court dismissed the prior
strike allegation, suspended imposition of sentence, and placed Meves on formal
probation for three years, on condition he serve one year in county jail.
                                       DISCUSSION
       Meves contends the trial court erred in denying his suppression motion.
Specifically, he contends the deputies entered the constitutionally protected curtilage of
his residence; thus, any observation of symptoms indicating he was under the influence of
a controlled substance was made from a position the deputies could not lawfully occupy.
Meves is mistaken.
       Standard of Review
       Section 1538.5 provides in relevant part that a defendant may move for the return
of property or to suppress as evidence any tangible or intangible thing obtained as a result
of a search or seizure if the search or seizure without a warrant was unreasonable.
       “‘“‘A proceeding under … section 1538.5 to suppress evidence is one in which a
full hearing is held on the issues before the superior court sitting as a finder of fact.’
[Citation.]” [Citation.] … In such a proceeding the power to judge the credibility of
witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual
inferences, is vested in the trial court. On appeal all presumptions favor the exercise of
that power, and the trial court’s findings on such matters, whether express or implied,
must be upheld if they are supported by substantial evidence. The trial court also has the
duty to decide whether, on the facts found, the search was unreasonable within the
meaning of the Constitution. Although that issue is a question of law, the trial court’s
conclusion on the point should not lightly be challenged by appeal or by petition for
extraordinary writ. Of course, if such review is nevertheless sought, it becomes the

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ultimate responsibility of the appellate court to measure the facts, as found by the trier,
against the constitutional standard of reasonableness.’ [Citation.]” (People v. Green
(1996) 46 Cal.App.4th 367, 372.)
       Analysis
       Meves challenges the trial court’s factual finding that the deputies did not
impermissibly enter the curtilage of his residence. Meves misconceives the nature of the
doctrine of curtilage.
       First, curtilage contemplates an area that shares the same expectation of privacy as
does the interior of the home to which it relates. (United States v. Dunn (1987) 480 U.S.
294, 300 (Dunn).) The “central component of [curtilage is] whether the area harbors the
‘intimate activity associated with the “sanctity of a [person’s] home and the privacies of
life.”’ [Citations.]” (Id. at p. 300.) A road or driveway to a home open to the public is
not within the curtilage of a home. (U.S. v. Evans (7th Cir. 1994) 27 F.3d 1219, 1228-
1229 [open driveway leading to garage from public street not private]; United States v.
Ventling (8th Cir. 1982) 678 F.2d 63, 65-66 [a driveway and portion of the yard
immediately adjacent to the front door of a home cannot be considered to be out of public
view]; U.S. v. Rodgers (11th Cir. 1991) 924 F.2d 219, 221, fn. 3 [a pathway that leads
from a driveway to the front door of a home is not within the curtilage of the home];
United States v. Humphries (9th Cir. 1980) 636 F.2d 1172, 1179 [no expectation of
privacy where an automobile was parked on an unenclosed driveway open to view from
the street].)
       Second, curtilage is the land immediately surrounding and associated with the
home; curtilage does not necessarily extend to a property’s boundary line. (Oliver v.
United States (1984) 466 U.S. 170, 180.) The area beyond the curtilage is “open fields”
that government agents may enter without regard to the constraints imposed by the
Fourth Amendment. (Oliver, at pp. 179-180.)



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       Here, the deputies had an unobstructed view of Meves while in their patrol car on
a public street. Meves was standing in an area that was desert like; he was some distance
from his residence, the trees, and the area that was enclosed by the stone fence on March
28, 2012. Meves was visible from the public roadway.
        The United States Supreme Court in Dunn rejected a contention a barn was
within the curtilage of the residence. (Dunn, supra, 480 U.S. at pp. 300-303.) In
addition, that court rejected the defendant’s contention he possessed an expectation of
privacy, independent from his home’s curtilage, in the barn and its contents. (Id. at
p. 301.) We similarly reject Meves’s contention that the desert-like junk yard area of his
property was within the curtilage or that he had any expectation of privacy while standing
in that area. The area where Meves was standing was not adjacent to or near the home; it
was not at that time enclosed or shielded by any fence; the area’s use was not tied to the
home itself, rather, it appeared to be a desert area, a portion of which was littered with
junk; and there were not any “No Trespassing” signs in place on March 28, 2012.
       We conclude the trial court’s factual finding that the area in which Meves was
standing was outside the curtilage was supported by substantial evidence.
       Moreover, the presence of an officer within the curtilage of a residence does not
automatically amount to an unconstitutional invasion of privacy. It must be determined
under the facts of each case just how private the particular observation point actually is.
Police with legitimate business may enter areas of the curtilage that are impliedly open,
such as access routes to the house. In doing so, they are free to keep their eyes open. An
officer is permitted the same license to intrude as a reasonably respectful citizen. A
substantial and unreasonable departure from such an area, or a particularly intrusive
method of viewing, however, will exceed the scope of the implied invitation and intrude
upon a constitutionally protected expectation of privacy. What is reasonable cannot be
determined by a fixed formula. Rather, it must be based on the facts and circumstances
of each case. (People v. Thompson (1990) 221 Cal.App.3d 923, 943 (Thompson).)

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       The Fourth Amendment protection of the home never has been extended to require
law enforcement officers to shield their eyes when passing by a home on a public street.
Nor does the mere fact an individual has taken measures to restrict some views of his
activities preclude an officer’s observations from a public vantage point where he has a
right to be and which renders the activities clearly visible. What a person knowingly
exposes to the public, even in his own home, is not a subject of Fourth Amendment
protection. (People v. Camacho (2000) 23 Cal.4th 824, 829-831 (Camacho).)
       Even if the area in which Meves was standing were part of the curtilage, the
deputies legitimately could approach him where he stood. The area was not shielded
from the road; Meves could have no reasonable expectation of privacy where he stood
since the area was visible to the public; and Clodt’s approach was open and direct and for
a legitimate purpose. (Thompson, supra, 221 Cal.App.3d at p. 943.) What a person
knowingly exposes to the public is not subject to Fourth Amendment protection.
(Camacho, supra, 23 Cal.4th at pp. 829-831.)
       A police officer who makes an uninvited entry onto private property does not per
se violate the occupant’s Fourth Amendment right of privacy. “Absent express orders
from the person in possession against any possible trespass, there is no rule of private or
public conduct which makes it illegal per se, or a condemned invasion of the person’s
right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and
knock on the front door of any man’s ‘castle’ with the honest intent of asking questions
of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of
the law.” (Davis v. United States (9th Cir. 1964) 327 F.2d 301, 303.) This essentially is
what Clodt did when he approached Meves while Meves was standing outside his home
in an area open to public view.
       Clodt lawfully entered onto the property to speak to Meves. Here, Clodt
determined from observing Meves that Meves appeared to be under the influence of a
controlled substance, which gave Clodt probable cause to arrest Meves for a

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misdemeanor violation of Health and Safety Code section 11550, subdivision (a). The
methamphetamine and paraphernalia in Meves’s possession were uncovered as a result of
a search incident to a lawful arrest. (People v. Avila (1997) 58 Cal.App.4th 1069, 1076-
1077.)
         Conclusion
         We conclude the trial court’s factual finding that the area in which Meves was
standing was outside the curtilage was supported by substantial evidence. (People v.
Green (1996) 46 Cal.App.4th 367, 372.) Under California law, “‘“it is ‘the ultimate
responsibility of the appellate court to measure the facts, as found by the trier, against the
constitutional standard of reasonableness.’” [Citation.]’ [Citation.]” (People v. Gallegos
(1997) 54 Cal.App.4th 252, 261-262.) Clodt’s entry onto the property to speak to Meves
was lawful and the resulting arrest, search, and seizure of the contraband were reasonable
and did not violate the Fourth Amendment.
                                       DISPOSITION
         The judgment is affirmed. The request for judicial notice filed October 4, 2012, is
denied.2




         2Mevesasked this court to take judicial notice of two Google maps pursuant to
Evidence Code section 452, subdivision (h). We decline to do so because the accuracy
and relevancy of the maps are reasonably subject to dispute. There is nothing to indicate
the maps are true and accurate representations of the property on the relevant date of
March 28, 2012, and, as we know from the testimony at the suppression hearing, the
physical appearance of the real property was altered after Meves was arrested.



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