Monday, June 9, 2008
Acquiescence to Housing Inspection Was Fourth Amendment Consent—C.A.
By KENNETH OFGANG, Staff Writer
A public housing resident who allowed a housing investigator and sheriff’s deputies to enter his residence to discuss possible housing violations consented to a search of the premises for marijuana that could be plainly seen and smelled, the Court of Appeal for this district has ruled.
Div. Three Wednesday affirmed Michael Bell’s conviction of sale of marijuana. Bell pled no contest, reserving the right to appeal based on the denial of motion to suppress.
Bell was arrested at his Palmdale home in 2006.
Evidence presented at the suppression hearing showed that deputies suspected that Bell’s mother, Yolanda Vasquez—who shared the residence with him—was involved in drug activity. They reported that suspicion to the County of Los Angeles Housing Authority, which sent an investigator, Gary Brody, accompanied by deputies, to determine whether Vasquez was violating the terms of her Section 8 housing subsidy by allowing criminal activity to take place on the premises.
Bell came to the door after the investigator identified himself, and said that he was there with deputies and wanted to talk about housing violations. Bell, according to the testimony, opened the door and said “Come on in.”
The investigator and one of the deputies testified that they smelled burnt marijuana as soon as they entered, and Brody said he saw marijuana residue and assault rifle rounds on a table. The deputy said he conducted a protective sweep and saw loose marijuana and an empty gun magazine.
Another deputy testified that Bell made a move to reach between a couch cushion and the side of the couch, and that when Bell ignored the deputy’s command to stop, the location was searched and baggies of marijuana were found. A subsequent search, pursuant to a warrant, resulted in discovery of methamphetamine and other evidence of drug activity.
Los Angeles Superior Court Judge Lisa Chung, denying the motion to suppress, concluded that the “plain view” and “plain smell” doctrines applied to the case and that Bell’s consent was voluntarily given under the totality of the circumstances.
Justice Walter Croskey, in an unpublished opinion for the Court of Appeal, agreed that the search was consensual, and that consent was not, as contended in the defense brief, “obtained by confusing” the defendant as to the purpose of the visit and was not “coerced” under threat of loss of housing aid.
Under the rules governing administrative searches, Croskey explained, Bell could refuse to admit the officers, since he was not given advance notice of the investigation. “That defendant might have misunderstood this fact, and that Brody did not disabuse him of that misunderstanding, does not render the consent involuntary,” the jurist wrote, noting that Bell was not threatened and that no guns were drawn, nor did Bell ever ask the deputies to leave.
Had the search been based on the advance consent to administrative search given in the lease, Croskey suggested, the presence of the deputies would have rendered it illegal.
“In our case, however, Brody and the deputies did not rely on the provision in Vasquez’s lease allowing for announced inspections; instead, they entered the unit because defendant said ‘Come on in,’ when asked,” the justice said. “As such, the entry was consensual, and there was no constitutional violation.”
Attorneys on appeal were Marta I. Stanton, by appointment, for the defendant and Deputy Attorneys General Steven D. Matthews and Victoria B. Wilson for the prosecution.
The case is People v. Bell, B201291.
Copyright 2008, Metropolitan News Company