California Court of Appeal Dec 3, 2014 No. E059941Unpublished
Filed 12/3/14 P. v. Pineda 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E059941
v. (Super.Ct.No. RIF1300655)
DAVID OVANDO PINEDA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.
Affirmed.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina, and
Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
On January 28, 2013, a complaint charged defendant and appellant David Ovando
Pineda with cultivating marijuana under Health and Safety Code section 11358 (count 1);
possession of marijuana for sale under Health and Safety Code section 11359 (count 2);
and theft of utilities over $950 under Penal Code section 498, subdivision (d) (count 3).
On April 30, 2013, the trial court denied defendant’s motion to suppress evidence
under Penal Code section 1538.5. Defendant filed a writ of mandamus which we
summarily denied.
On May 14, 2013, the People filed an information with the same charges as the
complaint. Defendant filed a motion to set aside the information on the same ground as
the motion to suppress. The trial court denied the motion. Defendant filed a writ of
mandamus which we denied.
On August 26, 2013, defendant pled guilty to all charges. The trial court found
that there was a factual basis for the plea. On September 23, 2013, the court sentenced
defendant to an aggregate term of two years in prison, as follows: one year and four
months (count 1); stayed concurrent term of one year and four months (count 2); and
consecutive term of eight months (count 3).
On October 30, 2013, defendant filed a timely notice of appeal, challenging the
denial of his motion to suppress. Defendant requested a certificate of probable cause,
which the court granted. For the reasons set forth below, we find that the trial court
properly denied defendant’s motion to suppress.
2
II
STATEMENT OF FACTS1
On December 13, 2012, in Perris, California, the Riverside County Sheriff’s
Department responded to a report that two subjects were breaking into a residence on
Akina Avenue. When deputies arrived, there were no suspects at the residence.
However, during a security sweep, the deputies discovered a fully operational
hydroponics marijuana grow house. Deputy Pentel executed a search warrant for the
Akina Avenue home. In a search of the home, Deputy Pentel seized “marijuana plants
and other evidence.” The deputy also discovered rental receipts for the Akina Avenue
house and a house on Bearberry Drive in Moreno Valley. The receipts were attached to
each other, and defendant’s name appeared on the Bearberry Drive receipt as the payor.
Although Deputy Pentel knew that a female named Jeanette lived at the Akina Avenue
house, he discovered male clothing in one of the closets. The discovery of the clothes, in
addition to the rental receipts, led the deputy to believe that defendant lived at both
homes.
Riverside County Sheriff’s Department Investigator Joshua Parker is a part of the
Special Investigations Bureau Marijuana Eradication Team. He has significant
experience investigating narcotics-related crimes, and is familiar with the modes of
operation of marijuana growers. He has conducted over 100 investigations involving the
1 Since defendant pled guilty, the statement of facts is derived from the evidentiary hearing on the motion to suppress, the search warrant affidavit, and the probation report.
3
indoor cultivation of marijuana. Based on his training and experience, he believes that
people who are known to operate one grow house will often also operate other grow
houses. He is also able to identify marijuana.
After learning about the rent receipts, Investigator Parker twice visited the
Bearberry Drive home. He testified that it was “a single-story tract home.” The front of
the house was unfenced and did not have a “No Trespassing” sign. The driveway of the
house was the length of a car, and ran from the garage to the sidewalk. Although there
were windows at the top of the garage door, a passerby could not see through the garage
windows from the street.
On December 18, 2012, at approximately 8:00 p.m., Investigator Parker
approached the house on foot. As soon as he stepped onto the driveway, he heard the
sound of air conditioning fans. Investigator Parker continued to walk up the driveway
until he was close enough to touch the garage door. Investigator Parker was able to stand
on the tips of his toes and see through the windows at the top of the garage door. When
he did, he saw that construction was underway on the interior walls within the garage.
While standing next to the garage door, he could also smell marijuana. The investigator
testified that it was a cold night on December 18, and that there was no need for an air
conditioner to be running. He explained that marijuana grow houses frequently run air
conditioning regardless of the outside climate because the lights used to grow marijuana
generate heat. Investigator Parker also testified that operators of grow houses will often
construct interior walls, such as those found in the Bearberry Drive home.
4
On January 11, 2013, at 5:30 a.m., Investigator Parker returned to the Bearberry
Drive home. As he neared the garage, he again heard the sound of air conditioning fans
and detected the odor of marijuana.
Investigator Parker explained that he was not attempting to make contact with
defendant on either December 18 or January 11. He never knocked on the front door.
On both occasions, he was investigating the potential grow house and did not want to
alert defendant.
Based on the constant sound of air conditioning fans, the odor of marijuana, and
that the rent receipt for the Bearberry Drive house was found in the Akina Avenue grow
house, Investigator Parker obtained a search warrant for the Bearberry house.
When the search warrant was executed, defendant was home with his seventeen-
year-old son. Investigators found 603 marijuana plants. Three bedrooms had been
converted to hydroponic grow rooms, with light hoods, ballasts, air conditioning units,
fans, and electric switch timers. Another room had been specially configured to foster
the growth of immature marijuana plants. Two other rooms had been designed to care for
mature marijuana plants. The garage was used to grow clones, and contained an electric
bypass, installed below the electric meter, to allow for theft of electricity. Southern
California Edison Revenue Protection Investigator Pat Shepherd estimated theft of
$5,400 of electricity.
Defendant, after given his rights under Miranda, admitted that the marijuana
inside the residence belonged to him and he obtained the installation of the electric
5
bypass to save money on his electric bill. He expected to sell the marijuana for $1,500
per pound.
Defendant was subsequently arrested and charged.
III
ANALYSIS
On appeal, defendant contends that the trial court erred in denying his motion to
suppress on the ground that Investigator Parker violated his Fourth Amendment rights by
searching the grounds of his home without a warrant. We disagree.
A. The Fourth Amendment
“The Fourth Amendment provides ‘[t]he right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures, shall not
be violated . . . .’ (U.S. Const., 4th Amend.) This guarantee has been incorporated into
the Fourteenth Amendment to the federal Constitution and is applicable to the states.
[Citation.] A similar guarantee against unreasonable government searches is set forth in
the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8
in June 1982, state and federal claims relating to exclusion of evidence on grounds of
unreasonable search and seizure are measured by the same standard. [Citations.] ‘Our
state Constitution thus forbids the courts to order the exclusion of evidence at trial as a
remedy for an unreasonable search and seizure unless that remedy is required by the
federal Constitution as interpreted by the United States Supreme Court.’” (People v.
was exposed to the public. He had no reasonable expectation in the sounds and smells
emanating from his home and detectable by human senses from his driveway. Therefore,
we find Investigator Parker’s actions comported with the requirements of the Fourth
Amendment.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
HOLLENHORST Acting P. J.
KING J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that a residential driveway is not within the home's curtilage and that the defendant lacked an objectively reasonable expectation of privacy in the sights, sounds, and smells observable from that driveway by law enforcement.
Issues
Whether a residential driveway constitutes curtilage protected by the Fourth Amendment.
Whether a police officer's observations of a home from a driveway violate the Fourth Amendment when the officer uses only ordinary senses.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In sum, the driveway was not part of the curtilage, and so was not protected by the Fourth Amendment.”
“defendant’s driveway was exposed to the public. He had no reasonable expectation in the sounds and smells emanating from his home and detectable by human senses from his driveway.”
“Investigator Parker entered the driveway as a licensee and his use of ordinary senses did not exceed the scope of that license.”