The People of Guam, Plaintiff-Appellant, v. Joshua Alan Sharp, Defendant-Appellee

IN THE SUPREME COURT OF GUAM THE PEOPLE OF GUAM, Plaintiff-Appellant, v. JOSHUA ALAN SHARP, Defendant-Appellee. Supreme Court Case No. CRA17-003 Superior Court Case No. CF0529-16 OPINION Cite as: 2017 Guam 19 Appeal from the Superior Court of Guam Argued and submitted on October 25, 2017 Hagåtña, Guam Appearing for Plaintiff-Appellant: James C. Collins, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913 Appearing for Defendant-Appellee: F. Randall Cunliffe, Esq. Cunliffe & Cook, P.C. 210 Archbishop Flores St., Ste. 2000 Hagåtña, GU 96910 People v. Sharp, 2017 Guam 19, Opinion Page 2 of 9 BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; ROBERT J. TORRES, Associate Justice. MARAMAN, C.J.:Ask ⌕

[1]People of Guam (“People”) appeal from a trial court order suppressing evidence of drugs and drug paraphernalia discovered during a search of Defendant-Appellee Joshua Alan Sharp’s person and hotel room. In this appeal, we consider whether a warrantless arrest pursuant to §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3) requires the misdemeanor, for which an officer has reasonable cause to believe has been committed, to be committed “in the officer’s presence.” We also consider whether a vacant hotel room constitutes a “dwelling” under §9 GCA § 37.30.Guam Code Annotatedstatute — bindingAsk ⌕⧉ cite

[2]Because we hold that a vacant hotel room is a “dwelling” under §9 GCA § 37.30Guam Code Annotatedstatute — binding and officer presence is not required under §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3), we reverse the suppression order and remand to the trial court for proceedings not inconsistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUNDAsk ⌕⧉ cite

[3]A grand jury indicted Sharp on four charges: Possession of a Schedule II Controlled Substance with Intent to Deliver; Promoting Major Prison Contraband; Possession of a Schedule II Controlled Substance; and Criminal Trespass. The indictment was predicated on the following alleged facts upon which the parties agreed for this appeal:Ask ⌕⧉ cite

[4]Guam Police Officers Terlaje and Imanil responded to a radio call that new guests found two girls in Room 402 of the Wyndham Gardens Hotel. The room was supposed to be unoccupied. Upon the officers’ arrival, hotel management informed them that the girls said Sharp let them into the room. Management further stated that Sharp was in the parking lot. Officer Terlaje, along with other officers, approached Sharp in the parking lot and instructed him to empty his pockets, and he complied. After Sharp emptied his pockets, Officer Terlaje People v. Sharp, 2017 Guam 19, Opinion Page 3 of 9 conducted a pat-down search. The search uncovered a hotel key to Room 236, two knives, and two improvised glass pipes. Officers entered Room 236—properly rented by Sharp’s girlfriend—using the key discovered during the search and found drugs. Upon discovery of the paraphernalia on his person, Sharp was informed that he was under arrest. At the precinct, officers also located drugs in Sharp’s shoe.Ask ⌕⧉ cite

[5]Sharp filed a Motion to Suppress Evidence alleging, in part, that his arrest was not authorized under §8 GCA § 20.15.Guam Code Annotatedstatute — binding The trial court initially denied the motion, finding that the misdemeanor arrest was supported by reasonable cause and that the hotel room was a dwelling, but did not address Sharp’s argument that §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3) requires officer presence at the time a crime is committed to authorize a warrantless arrest. Upon defense’s motion, the trial court granted both rehearing and suppression because it found that, when read as a whole, §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3) requires officer presence. The People appealed. This court ordered briefing on whether a vacant hotel room is a dwelling under §9 GCA § 37.30.Guam Code Annotatedstatute — binding II. JURISDICTIONAsk ⌕⧉ cite

[6]This court has jurisdiction to review the government’s appeal from an order granting a motion to suppress evidence. §8 GCA § 130.20Guam Code Annotatedstatute — binding(a)(6) (2005); 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-90 (2017)); §8 GCA § 130.40Guam Code Annotatedstatute — binding (2005). III. STANDARD OF REVIEWAsk ⌕⧉ cite

[7]This court generally reviews suppression orders de novo. People v. Taman, 2013 Guam 22 ¶ 9. Interpretations of statutes are also reviewed de novo. See People v. Cundiff, 2006 Guam 12 ¶ 14. People v. Sharp, 2017 Guam 19, Opinion Page 4 of 9 IV. ANALYSISAsk ⌕⧉ cite

[8]As an initial matter, based on the parties’ concessions, we do not address the legality of the searches after Sharp’s arrest or the question of whether §8 GCA § 20.15Guam Code Annotatedstatute — binding comports with the Fourth Amendment’s general warrant requirement. See, e.g., Katz v. United States, ⟂389 U.S. 347Persuasive authoritynon-Guam — not binding under the reception rule, 357 (1967) (“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”). Those questions are left for another day. Our analysis is limited to whether a vacant hotel room constitutes a “dwelling” under §9 GCA § 37.30Guam Code Annotatedstatute — binding and whether §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3) requires the misdemeanor to be committed “in the officer’s presence” to authorize a warrantless arrest. A. A Vacant Hotel Room is a “Dwelling” Under §9 GCA § 37.30Guam Code Annotatedstatute — bindingAsk ⌕⧉ cite

[9]The question of whether a vacant hotel room constitutes a dwelling has not been answered in this jurisdiction, and there is no specific authority from other states. While hotel rooms can constitute dwellings, they generally do so when there is an occupant. See, e.g., People v. Fleetwood, 217 Cal. Rptr. 612, 615 (Ct. App. 1985). A vacant and abandoned building cannot constitute a “dwelling.” See Fillman v. State, 251 A.2d 557, 558 (Del. 1969). Further, California law, on which Guam’s Penal Code is based, specifically requires dwellings to be inhabited to support conviction for certain crimes. See, e.g., Cal. Penal Code § 212.5 (distinguishing first and second-degree robbery).Ask ⌕⧉ cite

[10]At the time Sharp allegedly let the girls into the room, it was vacant. Record on Appeal (“RA”), tab 39 at 2 (Opp’n to Mot. Suppress, Oct. 4, 2016); Appellant’s Br. at 8 (June 7, 2015). This is critical, because if a vacant room is not a dwelling, then Sharp’s criminal trespass is only a petty misdemeanor. Criminal trespass constitutes a misdemeanor only if it is committed in a People v. Sharp, 2017 Guam 19, Opinion Page 5 of 9 dwelling or motor vehicle. §9 GCA § 37.30Guam Code Annotatedstatute — binding(a) (2005). Criminal trespass in any other “habitable property” or building constitutes a petty misdemeanor. Id. A warrantless arrest for a petty misdemeanor is plainly not permitted under §8 GCA § 20.15Guam Code Annotatedstatute — binding unless it was committed in the officer’s presence. As Sharp’s alleged offense was not committed in Officer Terlaje’s presence, the legality of the arrest depends on whether Officer Terlaje’s reasonable cause—also known as probable cause—alone permits the arrest. Because the officers were informed that the room was vacant, see RA, tab 39 (Opp’n to Mot. Suppress); Appellant’s Br. at 8, there exists no reasonable cause for the officers to believe the room may have been occupied. Whether the vacant hotel room is a “dwelling,” therefore, matters in this case.Ask ⌕⧉ cite

[11]On this point, Sharp notes that the statute distinguishes between “habitable property” and “dwelling,” Appellee’s Suppl. Br. at 2-3 (Oct. 5, 2017), and that the first definition of “dwellinghouse” in Black’s Law Dictionary is: “The house or other structure in which a person lives; a residence or abode.” Dwelling House, Black’s Law Dictionary (10th ed. 2014). Accordingly, he argues that this definition requires someone to be “currently residing or living in the structure.” Appellee’s Suppl. Br. at 2.Ask ⌕⧉ cite

[12]However, the People argue that a hotel room’s vacancy has “no legal impact.” Appellant’s Suppl. Br. at 4 (Oct. 3, 2017). In United States v. McClenton, cited in the People’s brief, the Third Circuit held that since a “hotel guest room is intended for use as human habitation,” even if “on a transient or temporary basis,” it still falls within the definition of a dwelling. ⟂53 F.3d 584Persuasive authoritynon-Guam — not binding under the reception rule, 587 (3d Cir. 1995). The Third Circuit cited to United States v. Sherman, a Ninth Circuit case, which also noted in passing that “because hotels are in the business of housing overnight guests, many of the reasons that make traditional dwelling burglaries dangerous seem likewise present. . . .” ⟂928 F.2d 324Persuasive authoritynon-Guam — not binding under the reception rule, 326 n.2 (9th Cir. 1991). People v. Sharp, 2017 Guam 19, Opinion Page 6 of 9Ask ⌕⧉ cite

[13]Further, in State v. Scott, the New Jersey Supreme Court, interpreting “dwelling” under New Jersey Statutes Annotated section 2C:18-3 (West 1995)—a similar trespass statute— concluded “that an unoccupied apartment that is between rentals but is suitable for occupancy is a dwelling for purposes of the criminal trespass statute.” 776 A.2d 810, 815 (N.J. 2001). The New Jersey court considered “modern realities, including the fact that many citizens live in close proximity to their neighbors in densely populated areas.” Id. It found “[a] community-based sense of security is appropriate, indeed essential.” Id. Although Scott dealt with an apartment, the danger and security considerations are present in hotels, too, where other occupants of the building have made a “home away from home.” Acheson v. Johnson, 86 A.2d 628, 633 (Me. 1952) (finding a hotel to be of “domestic” use for tax statute). Although Room 402 was vacant at the time of the trespass, the hotel was suitable for residential use and had other occupants. While abandonment of a hotel may be an affirmative defense in certain cases, see §9 GCA § 37.30Guam Code Annotatedstatute — binding(c)(1), we need not consider that issue here where the room was transitorily vacant. Hotel guests should not arrive to find unauthorized individuals in their room. This is the type of danger the statute means, in part, to avoid. Thus, Room 402 constituted a “dwelling” under §9 GCA § 37.30.Guam Code Annotatedstatute — binding Since a vacant hotel room constitutes a dwelling, we now turn to whether a police officer may, with reasonable cause, arrest a person without a warrant for a misdemeanor not committed in the officer’s presence. B. The Plain Language of §8 GCA § 20.15Guam Code Annotatedstatute — binding(A)(3) Does Not Require the Misdemeanor to Have Been Committed “In The Officer’s Presence”Ask ⌕⧉ cite

[14]Title §8 GCA § 20.15Guam Code Annotatedstatute — binding authorizes officers to conduct warrantless searches under the following circumstances: People v. Sharp, 2017 Guam 19, Opinion Page 7 of 9 § 20.15. Peace Officer Arresting Without Warrant; Circumstances. (a) A peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person: (1) Whenever the officer has reasonable cause to believe that the person to be arrested has committed an offense in the officer’s presence; (2) When the person arrested has committed a felony, although not in the officer’s presence; (3) Whenever the officer has reasonable cause to believe that the person to be arrested has committed a felony or misdemeanor whether or not a felony or misdemeanor has in fact been committed[;] (4) Who has escaped from any jail or prison or the lawful custody of a peace officer. (b) There shall be no civil liability on the part of, and no cause of action shall arise against, a peace officer for false arrest or false imprisonment for an arrest which is lawful under Subsection (a). §8 GCA § 20.15Guam Code Annotatedstatute — binding (2005).Ask ⌕⧉ cite

[15]The People sought this court’s review of the trial court’s order granting suppression of evidence under this statute. The trial court held that Sharp’s arrest was unlawful because, when §8 GCA § 20.15Guam Code Annotatedstatute — binding is read as a whole, subsection (a)(3) requires a police officer’s presence at the time the crime was committed to authorize a warrantless arrest. The trial court determined that since subsection (a)(2) specifically did not require officer presence, subsection (a)(3) impliedly required it.Ask ⌕⧉ cite

[16]The trial court’s textual analysis fails. See, e.g., Aguon v. Gutierrez, 2002 Guam 14 ¶ 6 (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” (quoting Robinson v. Shell Oil Co., ⟂519 U.S. 337Persuasive authoritynon-Guam — not binding under the reception rule, 340 (1997))). By the trial court’s same reasoning, the opposite outcome is as equally likely. It can be argued that since subsection People v. Sharp, 2017 Guam 19, Opinion Page 8 of 9 (a)(1) includes a presence requirement, then subsection (a)(3) impliedly does not require officer presence. The legislature could have easily included the “presence” language in subsection (a)(3) if it specifically intended to include an “in the officer’s presence” requirement. It did not.Ask ⌕⧉ cite

[17]Focusing on the operative language of subsection (a)(3), this court observes that it is the only portion of the statute that authorizes warrantless arrests for probable crimes committed outside an officer’s presence. §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3). Subsection (a)(1) requires officer presence, and subsection (a)(2) requires that a felony is actually committed. The plain language of subsection (a)(3) does not include a presence requirement, and this court declines to impliedly read one in. Guam is the only jurisdiction with such broad authorization for warrantless arrests in the case of misdemeanors. See Atwater v. City of Lago Vista, ⟂532 U.S. 318Persuasive authoritynon-Guam — not binding under the reception rule, 355-60 (2001) (summarizing the warrantless arrest statutes of the 50 states). When looking at this statute’s broad and specific contexts and the other jurisdictions’ warrantless arrest statutes, it appears that §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3)’s lack of a “presence” requirement was a deliberate choice by the legislature. The plain language of §8 GCA § 20.15Guam Code Annotatedstatute — binding indicates that police power to arrest for felonies and misdemeanors, when reasonable cause exists, extends to crimes committed outside an officer’s presence. We apply the language as written. See, e.g., People v. Gomia, 2017 Guam 13 ¶ 13.Ask ⌕⧉ cite

[18]We, therefore, hold that the plain language of §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3) does not require the felony or misdemeanor to have been committed “in the officer’s presence.” // // // // People v. Sharp, 2017 Guam 19, Opinion Page 9 of 9 V. CONCLUSIONAsk ⌕⧉ cite

[19]Because a vacant hotel room constitutes a dwelling under §9 GCA § 37.30Guam Code Annotatedstatute — binding and officer presence is not required to authorize a warrantless arrest under the plain language of §8 GCA § 20.15Guam Code Annotatedstatute — binding(a)(3), we REVERSE the portion of the trial court’s Decision and Order granting suppression and REMAND the case for further proceedings not inconsistent with this opinion. /s/ ___________________________________ F. PHILIP CARBULLIDO Associate Justice /s/ _________________________________ ROBERT J. TORRES Associate Justice /s/ ____________________________________ KATHERINE A. MARAMAN Chief JusticeAsk ⌕⧉ cite