Metropolitan News-Enterprise


Wednesday, April 13, 2011


Page 1


C.A. Overturns Suppression Ruling, Revives Drug Charge

No Reasonable Privacy Expectation by Man Who Entered Friend’s Home—Panel


By a MetNews Staff Writer


A man who ran into a friend’s home in order to avoid approaching police officers lacked a reasonable expectation of privacy, so it was legal for officers to follow him into the house without a warrant, the First District Court of Appeal ruled yesterday.

Rejecting a Solano Superior Court judge’s contrary conclusion, Div. Five reinstated charges of possessing cocaine base for sale while armed, possession of cocaine base while armed, possession of a concealed firearm, and resisting an officer against Deemario Romone Magee.

According to preliminary hearing testimony, Magee attracted the suspicion of the Vallejo officers, who were in an unmarked van patrolling an area known for drug trafficking. One of the officers, Corporal Potts, testified that Magee was walking toward a car that appeared to slow as it drove down the street.

Potts said he recognized Magee, whom he knew had a prior drug arrest and was reputed to be a drug dealer. He said he called the defendant by name and told him to “stop” and to “come here,” but Magee jogged toward a nearby house.

Potts added that Magee ran into that same house when the officer tried to talk to him on a prior occasion. Potts said he knew from prior events that Magee did not live there, although he once claimed his grandmother did.

On this occasion, however, Potts said, he followed Magee into the house through an unlocked screen door, and heard the defendant close the bathroom door. The officer kicked the door open, saw Magee flushing the toilet, and saw “at least” 20 individually wrapped bags of what the officer said he thought was cocaine base.

After a struggle involving Potts and several other officers, Magee was subdued and handcuffed; a loaded handgun and over $800 cash were found on his person and a gun magazine in the bathtub.

The owner of the house testified for the defense that she was close to Magee’s family, that her mother knew Magee and loved him like a “grandson,” and that while he never stayed overnight, he had permission to enter the house and use the bathroom. She added that he had plans to come to the house on the day of the arrest and have his hair braided by the owner’s niece.

The magistrate ruled that the seizure of evidence at the house was legal, although a separate search of Magee’s car was not. Retired Superior Court Judge Dwight Ely, however, granted the defendant’s Penal Code Sec. 995 motion to set aside the information, concluding the officers unreasonably entered the house without a warrant.

Justice Mark Simons, writing for the Court of Appeal, said the trial judge erred because Magee had no reasonable expectation of privacy at the time he entered the house.

While Magee may have had legitimate reasons for going into the house on other occasions, Simons explained, “the evidence is unambiguous that the reason for defendant’s presence in the house at the time of the warrantless entry was to escape contact with the police.”

 Citing Potts’ testimony that Magee was moving away from the direction of the house before he spotted the police, Simons wrote:

“Although a regular guest such as defendant may well have a legitimate expectation of privacy during a social visit, that does not mean that society is prepared to recognize as reasonable the privacy expectation defendant claims here:  an expectation that his ongoing social relationship with the residents of the Mark Avenue house meant that he could use the house as a sanctuary to escape contact with the police.”

Allowing a defendant to claim a reasonable expectation privacy whenever  in the home of somebody with whom that person has a social relationship, the justice added, “would permit drug dealers to create a network of sanctuaries in the areas where they conduct their illegal business by establishing social relationships and bathroom access privileges at homes in various strategic locations,” frustrating police and facilitating the drug trade.

Simons went on to say that the fact that Magee was in a locked bathroom does not change the result. “Although the occupant of a bathroom behind a closed door normally has a heightened expectation of privacy...that principle is inapplicable where it is plain the bathroom is not being used for its intended purpose,” he wrote.

The case is People v. Magee, A124598.


Copyright 2011, Metropolitan News Company