California Court of Appeal Apr 1, 2016 No. D068116Unpublished
Filed 4/1/16 P. v. Dunker CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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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AI Brief
AI-generated · verify before citing
Holding. The court held that the common hallway outside the defendant's apartment was not protected curtilage under the Fourth Amendment, and therefore the officers' observations made from that area were lawful.
Issues
Did the defendant have a reasonable expectation of privacy in the common hallway outside his apartment?
Did the officers' presence in the common hallway constitute an unlawful search or trespass under the Fourth Amendment and Florida v. Jardines?
Disposition. affirmed
Quotations verified verbatim against the opinion
“Dunker did not have a reasonable expectation of privacy in the area outside his apartment.”
“The Fourth Amendment does not protect common areas in multi-unit complexes if the area is expressly or impliedly open to the public.”
“the hallway, where the officers smelled marijuana, is not properly characterized as protected curtilage.”