The Life Span of a Denial of Consent

As per SCOTUSblog,

“The Court agreed to spell out further whether police may enter a home, without a warrant, to make a search, when the home is occupied by two individuals but consent to search has been given only by one of them.  A Los Angeles man in the case urged the Court to hear it, to clarify whether a co-occupant of a home must be on hand to object to a police search, when the other occupant has agreed to let the officers enter.  The case of Fernandez v. California (12-7822) seeks clarification of the Court’s 2006 decision in Georgia v. Randolph.”

The case facts are as follows (excerpted from the lower court record):


I. Prosecution Case

A. Percipient Testimony

1. Abel Lopez

On October 12, 2009, at about 11:00 a.m., Abel Lopez was approached after cashing a check near the corner of 14th Street and Magnolia in Los Angeles by a man with light skin, a grey sweater, and a tattoo on his bald head. The man, whom Lopez  later identified as defendant, asked what neighborhood Lopez was from. Lopez said, “I’m from Mexico.” Defendant laughed and said Lopez was in his territory and should give him his money. He then said, “The D.F.S. rules here. They rule here.” Defendant took a knife out of his pocket and pointed it towards Lopez’s chest. Lopez put up his hands to protect himself and defendant cut Lopez’s wrist.

Lopez tried to run away and, while running, took out his cell phone and called 911. He told the 911 operator he needed help because someone wanted to kill him. Defendant then whistled loudly and three or four men ran out of a building on 14th Street and Magnolia. They hit Lopez in the face and all over his body, knocking him to the ground, where they continued to hit and kick him. When he got up, Lopez did not have his cell phone or wallet; He saw the men running back to the building from which they had come. As a result of the attack, Lopez suffered a deep cut on his left wrist and bruising “and swelling over his body.

Several minutes after the attack, the police and paramedics arrived. Lopez participated in a field showup, where he identified defendant.

2. Detective Clark and Officer Cirrito

Detective Kelly Clark and Officer Joseph Cirrito responded to a police radio dispatch on October 12, 2009. Because the police dispatcher indicated possible involvement by members of the Drifters gang in an assault with a deadly weapon, Clark and Cirrito drove to an alley near Magnolia and 14th Street where they knew Drifters gathered. As they stood in the alley, two men walked by and one said, “[T]he guy is in the apartment.” The speaker appeared very scared and walked away quickly. When he returned, he again said, “He’s in there. He’s in the apartment.” Immediately thereafter, the detectives saw a tall, light-skinned, Hispanic or White male wearing a light blue T-shirt and khaki pants run through the alley and into the house where the witness was pointing. The house had been restructured into multiple apartments and was a known gang location. A minute or so later, the officers heard sounds of screaming and fighting from the apartment building into which the suspect had run.

Clark and Cirrito called for backup and, once additional officers arrived, knocked on the door of the unit from which they had heard screaming. The door was opened by Roxanne Rojas, who was holding a baby and appeared to be crying. Her face was red and she had a big bump on her nose that looked fresh. She had blood on her shirt and hand that appeared to come from a fresh injury. Cirrito asked what happened and she said she had been in a fight. Cirrito then asked if anyone else was inside the apartment, and she said only her son. When Cirrito asked her to step outside so he could conduct a sweep of the apartment, defendant stepped forward. He was dressed only in boxer shorts and seemed very agitated. He said, “You don’t have any right to come in here. I know my rights.” Cirrito removed him from the residence and took him into custody.

While Cirrito and Clark arrested defendant at the rear of the house, two men ran out of the front of the house. Officers detained them for questioning.

After defendant was removed from the scene, officers secured the apartment. Clark then went back to Rojas, told her that defendant had been identified as a robbery suspect, and asked for Rojas’s consent to search the apartment. Rojas gave consent, orally and in writing. During the ensuing search, officers found Drifters gang paraphernalia, a butterfly knife, boxing gloves, and clothing, including black pants and a light blue shirt. None of the items stolen from the victim was ever found.

The officers interviewed Rojas about her injuries. She said that when defendant entered the apartment, she confronted him about his relationship with a woman named Vanessa. They argued, and defendant struck Rojas in the face. The officers also spoke to Rojas’s four-year-old son, Christian, who told them defendant had a gun. Officers recovered a sawed-off shotgun from a heating unit where Christian told them it was hidden.

Two days later, Cirrito interviewed Rojas again. She said several times that she did not want to be a “rat” and that defendant would be very upset if he knew she was talking to the police. She denied that defendant struck her and said she had been struck in the face by Vanessa.

B. Expert Testimony

1. Defendant’s Active Gang Membership

Cirrito testified for the prosecution as a gang expert, opining that defendant was an active member of the Drifters, a Latino street gang. He said that the Drifters began as a “car club,” but moved into criminal activities in the 1980’s. By the 1990’s, they began to engage in more violent crimes, such as assaults, carjackings, attempted murders, and narcotics sales. As of October 2009, there were about 140 active Drifters members. In 2009, defendant told officers he had been a member of the Drifters (12th Street Bagos clique) for nine years.

The Drifters’s territory includes a “stronghold” in the area between 14th Street and 15th Street, and between Hoover and Menlo. The stronghold is an area where gang members can retreat if there is danger, and from which members can escape through secret passageways.

Cirrito testified that defendant had at least four tattoos that indicated his affiliation with the Drifters: “D.F.S.,” an abbreviation for Drifters, was tattooed on his leg; “Drifters” was tattooed on his back; “L.A.” was tattooed on his chest; and a gas mask and fedora were tattooed on his back. According to Cirrito, “[N]ot everyone that gets an L.A. on there is a gang member, but there is a trend that gang members, especially the Latino gangs[,] will use that L.A. logo. It represents L.A. where they take a lot of pride [in] where they’re from” Cirrito also testified that the gas mask and fedora represent an underground rap group called Psychoheads, which “talk[] a lot about weed, smoking weed and so on. It’s an underground group, but they’re very popular with the neighborhood gangsters. A lot of gang members will put that on because, again, it’s — we talk about reputation and pride in the area. Psycho-heads came from the Pico Union area, which is close by that particular area of the Drifters.”

Cirrito testified that a “moniker” is a nickname typically given to a gang member. Defendant’s moniker is “Blocks.” The moniker “Blocks” appeared in a Drifters “roll call” (list of active gang members) on a water heater near defendant’s apartment. “Blocks” also appeared in tagging on a garage door a few days after defendant’s arrest, which’ read “D.F.S. [(Drifters)], Bagos, Block[s].” “Bagos” is the Drifters clique in the area in which defendant lives.

Cirrito testified that an art book recovered from defendant’s bedroom oh October 12, 2009, also evidences defendant’s gang membership. Specifically,  he noted that the book contains a roll call with monikers and references to “D.F.S. 13,” “D.F.S. 12th Street, Bagos,” “Blocks,” “Rox,” “Roxy, 12th Street,” “Drifters,” and “Drifters 13.” Cirrito said that “13” indicates an affiliation with the Mexican mafia, the M.A.”

Cirrito testified that baseball caps were also recovered from defendant’s living room following his arrest; one cap was brown, with “L.A.” and “Drifters” written inside, and another was blue and embroidered with the name “Trigger,” a documented Drifters member.

In summary, Cirrito opined that defendant was an active member of the Drifters because he had tattoos that reference the Drifters gang; he goes by the moniker “Blocks”; he admitted to officers that he has been a member of the Drifters; he had gang paraphernalia in his home; he lived in a Drifters stronghold; and during the incident for which he was arrested, he said, “Where are you from? D.F.S. rules here.”

2. Cirrito’s Opinion That the Robbery Was Gang Related

Cirrito testified that gang members care deeply about their gang’s reputation in the community because “reputation means everything to them.” He said that gangs want respect from rival gangs, but they also want to terrorize the neighborhoods in which they operate so people will be afraid to come forward and talk about the gang’s criminal activities. A gang makes itself known in the community in several ways, primarily by committing crimes and tagging.

The Drifters establish their territory “[b]y committing crimes in — just open daylight. There’s fear and intimidation. . . . [S]ome of these younger people . . . want to be gang members. Some of them, it’s almost peer pressure. Some of them are actually forced because they live in that neighborhood. They get beat up. They’re getting — I’ll say attacked or pocket checked, and, eventually, they give in to just be part of this gang.”

Cirrito opined that Drifters members individually and collectively engage in a pattern of criminal gang activity. Their primary activities are robbery, grand theft auto, assault with a deadly weapon, narcotics, and attempted murder.

The prosecutor asked Cirrito the following hypothetical: “I want you to assume that the location we’re talking about is 14th and Magnolia, that it is twelve o’clock in the day, broad daylight for other people to see and that you have an individual who had recently been to a check cashing location or a similar location. He is leaving his girlfriend’s house in that area, 14th and Magnolia. He’s alone. He is approached by someone with a distinctive tattoo on the top of their head who is taller than that individual, that that person comes up to the man who is alone and asks that person, ‘Where are you from?’ That the person says — we’ll call the smaller person the victim. He says, I’m not from anywhere. I’m from Mexico,’ that the suspect says ‘Drifters rule here,’ in Spanish. ‘This is Drifters, D.F.S.,’ something to that effect multiple times, and the location is 14th and Magnolia. The suspect then demands the wallet of the victim and takes out a knife, points the knife at the victim, and the victim, in an attempt to defend himself, puts [his] wrist in front of [his] body, and the knife actually punctures through the sweater into the wrist of the victim. The victim starts to run, at which point the suspect then whistles, and three to four additional presumably other gang members come to attack the victim. The victim calls 911 and is subsequently punched, kicked, beaten and has his wallet stolen, his Mexican ID is stolen, his cell phone is  stolen, and the cash that he had recently cashed at the check cashing is taken. He sees the suspect with the knife and the tattoo along with the three to four others, then all flee, and he participates in a field showup and is able to identify the person with the tattoo, the person with the knife. His property is never recovered. Under that set of circumstances, would you believe, Officer, based on your background, training and experience, that that hypothetical, whether the act, the robbery itself, would be committed for the benefit of or at the direction of or in association with a criminal street gang, assuming that that particular location, 14th and Magnolia, was the stronghold of that gang with the specific intent to promote, further or assist in criminal conduct by gang members?”

Cirrito opined that, for the following reasons, he believed the hypothetical crime to be gang related: “It almost falls under the definition of what a gang is. A gang has three or more people who formally or informally have a common name, sign[,] or symbol[,] who engage or have engaged individually or collectively in a crime that causes fear and intimidation within a community, and . . . one of the crimes under this definition of 186.22 is a robbery. And the fact that it was done in broad daylight in this gang location, it’s very bold to do that in daylight. You must feel — that individual must feel that he has a lot of power in that community. That person must feel that . . . no one is going to rat me out. No one’s going to tell them who I was. The idea that he whistles others, that it was premeditated, that they’re waiting, they have this all set up, and that these three other individuals or four individuals assist this one individual in taking property of one person. To even go back on that, when that person walks up on this person and says, ‘Where are you from?’ For most citizens who live in this area, when they hear that, they know I’m getting banged on. He’s asking me where I’m from. If you think about it, an individual — anybody that approaches you and you don’t know who they are and they engage in a conversation, you get a little defensive like what does this person want? Now, he’s telling you ‘Drifters rule here.’ I’m basically now thinking — well, this person is thinking I’m either going to get robbed; I’m going to get jumped; beat up. I might even be killed because this guy’s a gang member, and it’s not just him that I have to fight. It’s all — it’s the gang. He’s telling me he’s from a gang, Drifters, for example. So in my opinion, this is for the benefit of a gang. The robbery itself — the cell phones could be used. They could change out the SIM card. They could be used for narcotics sales. They could be pawned off for a few bucks. The Mexican ID could be used to — for someone that doesn’t have ID. They could change it. It could be used for fraud, identity theft. The $400 could be used for buying more narcotics. It could be for buying guns, weapons. It could be paying for books for people who have recently been incarcerated [***6] and are in jail and that they need books for phone calls and cigarettes and anything else that they need. So my feeling is that this crime was done for the benefit of a gang.”

II. Defense Case

Roxanne Rojas testified that on October 12, 2009, she and defendant were living together in the apartment where defendant was arrested. About 11:00 a.m., defendant left the apartment to buy tacos and cigarettes; Rojas remained home with their two-month-old daughter and four-year-old son. While defendant was gone, a woman named Vanessa came to the apartment, and she and Rojas fought. Rojas and Vanessa were both injured during the fight. When defendant returned to the apartment through the back door, Vanessa left out the front door. Defendant saw that Rojas was injured and began to yell at her. Moments later, an officer arrived. The officer asked Rojas to let him in, and Rojas “didn’t say yes. I didn’t say no. I said let me get my children.” Rojas agreed that defendant has a Drifters tattoo, but said he was no longer active in the gang.

Defendant testified that he had been involved with the Drifters earlier in his life. He was “forcibly jumped in” when he was 18 or 19 years old and he “had to basically like go with the flow.” He was never heavily involved with the Drifters; “[i]t always was just about like simply like me living there . . . like I’m out mere doing stuff in the neighborhood . . . hanging out with people I grew up with.” He admitted that he had been convicted of receiving stolen property and served time in prison. He said he was released in 2007 and turned his life around. He began working and got an apartment in Marina del Rey for himself, Rojas, and her son. When Rojas got pregnant with her second child, the family moved to a two-bedroom apartment on 15th Street and Magnolia, but he had nothing to do with the Drifters.

Defendant testified that on the morning of October 12, 2009, he woke up late, played with his son, and then went out to get tacos for the family. On 14th Street, he was approached by a Hispanic man who appeared to be drunk. The man said, “Crazy Riders,” which is a rival gang from the area. Defendant ignored him and kept walking. The man continued to talk to him and then “got into the point where he’s coming at me.” Defendant pushed him away, and the two men got into a fistfight. When it was over, defendant continued to the liquor, store to buy cigarettes and then went home. Defendant never saw the man again. When he returned home, Rojas told him a girl had come to the house looking for him, and she and the girl had gotten into a fight. Defendant was upset that Rojas had let the girl in, and he and Rojas began yelling at one another. He did not hit Rojas during the argument. The police arrived a few minutes later and arrested him.

On cross-examination, defendant conceded that he has four prior felony convictions for theft-related crimes. He said “Blocks” or “Blockhead” is his nickname, but it is not a gang moniker.

III. Sentencing and Appeal

On October 8, 2010, defendant pled nolo contendere to counts 3, 4, and 5 (firearms and ammunition possession). In connection with defendant’s plea, the parties agreed that defendant’s son would not be called as a witness in the jury trial and the prosecution would not reference a gun seized at defendant’s home after his arrest. On October 25, 2010, the jury convicted defendant of counts 1 and 2 (second degree robbery and corporal injury on a spouse, cohabitant, or child’s parent); as to count 1, the jury further found that (1) in the commission of the offense, defendant had personally used a dangerous and deadly weapon, and (2) the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang.

As to count 1, the court sentenced defendant to 14 years (midterm of three years, plus an additional consecutive term of 10 years pursuant to § 186.22, subd. (b)(1)(A), plus an additional term of one year pursuant to § 12022, subd. (b)(1)). As to count 2, the court sentenced defendant to the midterm of three years, to run concurrent with the principal term. As to counts 3, 4, and 5, the court sentenced defendant to the midterm of two years, to run concurrent with the principal term.

Defendant timely appealed. 

The question the Court will address is “whether petitioner’s objection to police entry into his shared apartment barred the police from later conducting a warrantless search of the apartment based on the consent of his cotenant obtained after the petitioner had been removed from the premises for a domestic violence investigation and then lawfully arrested for a prior robbery.” It’s a mouthful, to be sure. But, given what we know about third party consent, how is the Court likely to treat this question? The merits brief for the state of California, among other documents related to the case, can be found here.