People v. Dunker CA4/1 ( 2016 )


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  • Filed 4/1/16 P. v. Dunker CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                         D068116
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. SCN329902)
    KAI DUNKER,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of San Diego County, Carlos O.
    Armour, Robert J. Kearney and Richard R. Monroy, Judges. Affirmed.
    Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G.
    McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
    Defendant Kai Dunker pleaded guilty to manufacturing a controlled substance and
    was granted three years' formal probation. (Health & Saf. Code, § 11379.6, subd. (a).)
    Before pleading guilty, he sought to suppress evidence he alleged was illegally obtained.
    On appeal, Dunker challenges the trial court's orders denying motions to quash the search
    warrant and suppress evidence. We are not persuaded by his arguments and affirm the
    orders.
    FACTUAL AND PROCEDURAL HISTORY
    In 2013, the Carlsbad Police Department received two anonymous tips that
    marijuana was being grown at an apartment complex located at 2270 Avenida Magnifica.
    On January 31, 2014, Carlsbad Police Deputy Richards and Officer Boyd went to the
    apartment complex to investigate the tips. The apartment complex consists of an
    uncovered parking lot and multiple buildings; the apartment in question was in a building
    with 21 units located on three floors, each floor having seven apartments. The entrance
    to the parking lot has a gate with a sign posted "Private Residential Community" and "No
    Solicitation or Distribution of Materials." The parking lot is level with the second floor
    of apartments, and has an uncovered walkway connecting the apartments to the parking
    lot. The hallway of the second floor apartments is covered, but is open to the outside and
    can be seen from the parking lot.
    When the officers arrived, they drove into the parking lot through the open gate.
    Boyd then got out of the vehicle and walked across the walkway to the open hallway of
    the second floor apartments. In the hallway on the second floor, Boyd noticed the faint
    smell of marijuana, but could not identify its exact source. Before leaving the parking
    lot, the officers looked up the registration of cars in the parking lot and found a car
    registered to Kai Dunker for apartment M.
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    In early March 2014, Richards returned to the apartment complex with a detective.
    They drove in the open gate and parked, and Richards walked alone across the walkway
    to the second floor apartments. He felt warm air coming from an open window directly
    adjacent to the door to apartment M. Richards saw a fan, located between window blinds
    and the screen in the apartment, blowing warm air from inside the apartment into the
    hallway. He placed his nose approximately six inches from the window to apartment M
    and smelled a strong odor of marijuana. Richards then went to each apartment on the
    second floor to smell around the doors and windows, confirming the smell was coming
    from apartment M. Prior to applying for a search warrant, Richards checked Dunker's
    vehicle registration, which still showed an address for apartment M. Using this
    information, Richards obtained a search warrant for apartment M.
    Several days later, Richards, along with other officers, presented the search
    warrant to the leasing office of the apartment complex and a leasing agent provided them
    with a key to apartment M. The officers knocked on apartment M's door and stated they
    were there to execute a search warrant. No one answered, and the officers used the key
    to enter the apartment. The officers found Dunker and three other people in the two-
    bedroom apartment. The officers also discovered 33 marijuana plants and evidence of an
    illegal growing operation. During the execution of the warrant, Dunker admitted to
    manufacturing and selling marijuana and butane honey oil. Dunker was arrested and
    subsequently charged with manufacturing a controlled substance (Health & Saf. Code,
    § 11379.6, subd. (a)) and possession of marijuana for sale. (Health & Saf. Code,
    § 11359.)
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    Before trial, Dunker filed a motion to quash the search warrant and a motion to
    suppress evidence under Penal Code section 1538.5. At the close of the preliminary
    examination, the trial court denied the motions. Dunker filed subsequent unsuccessful
    motions to quash and suppress. He eventually pleaded guilty to manufacturing a
    controlled substance and was sentenced to three years' probation. Dunker appeals the
    orders denying the motions to quash the warrant and suppress evidence.
    DISCUSSION
    Dunker contends the trial court erred in denying his motion to suppress because
    the observations made by officers outside his apartment violated his rights under the
    Fourth Amendment to the United States Constitution and did not support the basis of a
    search warrant. Dunker asserts that he had a reasonable expectation of privacy in the
    hallway outside his apartment because it is part of a private residential community.
    Dunker also argues the police trespassed onto private property for the sole purpose of
    conducting a search, which exceeded the officers' implied license under Florida v.
    Jardines (2013) __U.S.__ [
    133 S. Ct. 1409
    , 
    185 L. Ed. 2d 495
    ].
    The standard of review of a trial court's ruling on a motion to suppress is well
    established. (People v. Glaser (1995) 
    11 Cal. 4th 354
    , 362.) On appeal, we examine
    whether the trial court's factual findings are supported by substantial evidence. (Ibid.;
    People v. Camacho (2003) 
    23 Cal. 4th 824
    , 830 (Camacho).) We then exercise our
    independent judgment in determining whether a search occurred and was reasonable
    under the Fourth Amendment. (Camacho, at p. 830.)
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    The Fourth Amendment is implicated when police conduct amounts to a search or
    a seizure. 
    (Camacho, supra
    , 23 Cal.4th at pp. 831-832.) An area is constitutionally
    protected by the Fourth Amendment when a person has a subjective expectation of
    privacy in that area and society recognizes that expectation as reasonable. (Camacho, at
    p. 831.) The Fourth Amendment protects the area immediately surrounding the home,
    known as curtilage, only when a person has a reasonable expectation of privacy in the
    area. (United States v. Dunn (1987) 
    480 U.S. 294
    , 300; Boyd v. United States (1886) 
    116 U.S. 616
    , 630.)
    The ultimate question for determining whether an area is protected as curtilage is
    if the area "is so intimately tied to the home itself" that it should receive the same Fourth
    Amendment protection as the home. (United States v. 
    Dunn, supra
    , 480 U.S. at p. 301.)
    The factors relevant for making this determination are "the proximity of the area claimed
    to be curtilage to the home, whether the area is included within an enclosure surrounding
    the home, the nature of the uses to which the area is put, and the steps taken by the
    resident to protect the area from observation by people passing by." (Ibid.) If the area
    outside the home is not curtilage, then it is a public area or open field that has no
    objectionably reasonable expectation of privacy, and the public, including police officers,
    may lawfully be present. (Id. at pp. 304-305.)
    The Fourth Amendment does not protect common areas in multi-unit complexes if
    the area is expressly or impliedly open to the public. 
    (Camacho, supra
    , 23 Cal.4th at
    p. 832; Lorenzana v. Superior Court (1973) 
    9 Cal. 3d 626
    , 631; People v. Chavez (2008)
    
    161 Cal. App. 4th 1493
    , 1500.) The existence of public hallways or entryways exposes the
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    area to the public and creates an implied permission for the public to enter, negating a
    tenant's expectation of privacy in the area. (Camacho, at p. 832; Lorenzana, at p. 629.)
    Further, a trespass on private property is not dispositive for determining a Fourth
    Amendment violation. (United States v. Karo (1984) 
    468 U.S. 705
    , 712-713; Chavez, at
    pp. 1499-1500.)
    The trial court properly denied Dunker's motions to quash and suppress. Dunker
    did not have a reasonable expectation of privacy in the area outside his apartment. (See
    People v. Berutko (1969) 
    71 Cal. 2d 84
    , 88, 93 [finding no Fourth Amendment violation
    when officers used a common walkway to peer inside the defendant's apartment
    window].) The officers smelled marijuana emanating from Dunker's apartment while in a
    common walkway for tenants and their visitors. From this location, the officers were
    entitled to observe anything within their view without offending the Fourth Amendment
    because Dunker had no reasonable expectation of privacy in this area. The gate to the
    parking lot was open each time the officers made their observations. Dunker could not
    have prevented persons from using the open hallway, and therefore could not prevent the
    area from observation. The existence of the sign on the gate at the entrance of the
    apartment complex is not alone sufficient to create curtilage in the area. (See Oliver v.
    United States (1984) 
    466 U.S. 170
    , 182 [finding that the existence of warning signs do
    not itself create a legitimate expectation of privacy].) The officers traversed from the
    open gate to the open hallway outside Dunker's apartment. The officers were invited to
    take this path because the public is deemed to be invited to do so. Therefore, the officers
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    had a right to be physically present, and smell the hallway and the area outside Dunker's
    apartment.
    Dunker's reliance on Florida v. 
    Jardines, supra
    , 
    133 S. Ct. 1409
    to support his
    assertion that the search that led to the warrant was unlawful is misplaced. In Jardines,
    the Supreme Court determined police could not enter curtilage for the sole purpose of
    conducting a search. (Id. at pp. 1416-1417.) Absent intent to conduct a search, however,
    the police have an implied license to come to a resident's front door, just like any other
    private citizen. (Id. at p. 1416; Kentucky v. King (2011) 
    563 U.S. 452
    , 469.) Here, the
    hallway, where the officers smelled marijuana, is not properly characterized as protected
    curtilage. Rather, because it is a common hallway open to the public, the officers were
    lawfully present under an implied license. (People v. 
    Berutko, supra
    , 71 Cal.2d at pp. 88,
    93.)
    DISPOSITION
    The orders are affirmed.
    McDONALD, J.
    WE CONCUR:
    McCONNELL, P. J.
    AARON, J.
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