People of Guam v Tuncap [2014] GUSC 1; 2014 Guam 01 (16 January 2014)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JOSEPH G. TUNCAP,
Defendant-Appellant.

Supreme Court Case No.: CRA12-032
Superior Court Case No.: CF0643-10

OPINION

Filed: January 16, 2014

Cite as: 2014 Guam 1

Appeal from the Superior Court of Guam
Argued and submitted on July 16, 2013
Hagåtña, Guam

Appearing for Defendant-Appellant: Leevin T. Camacho, Esq. Law Office of Leevin T. Camacho 194 Hernan Cortez Ave., Ste. 216 Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee: James C. Collins, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] Defendant-Appellant Joseph G. Tuncap appeals his conviction for three counts of Burglary (As a Second Degree Felony), one count of Attempted Theft of Property (As a Second Degree Felony), and one count of Attempted Theft of Property (As a Third Degree Felony). Tuncap argues that his arrest violated the Fourth Amendment, because the police had no probable cause to arrest him without a warrant. Furthermore, he argues that the police officers’ warrantless search of his vehicle was unconstitutional. Finally, he argues that the trial court abused its discretion when it admitted into evidence a surveillance video without sufficient authentication. For the following reasons, we reverse in part and affirm in part Tuncap’s convictions.

1. FACTUAL BACKGROUND
   

[2] After 3 a.m. on October 31, 2010, Officer Peter Paulino of the Guam Police Department (GPD) was driving up Adrian Sanchez Road (commonly known as “Hamburger Road”) in Harmon when he spotted a single vehicle parked along the road near businesses. Officer Paulino noted the make and model of the car as well as its license plate, and recalled that the car was a getaway vehicle in a theft at Kmart on September 19, 2010. While investigating the Kmart incident, Officer Paulino ran the car’s information through the police department computer system and found that Joseph Tuncap was the registered owner. Tuncap’s known involvement in the Kmart theft was limited to being seen in the food court, meeting a woman who concealed a pair of slippers inside her bag, and driving her away after she was confronted by Kmart Loss Prevention Officers.

[3] Officer Paulino parked his car on the opposite side of the road so that he had a view of Tuncap’s vehicle. Officer Paulino contacted GPD Officer James Muna, who then came to support Officer Paulino. The two officers watched the car for thirty or forty minutes, until a figure began walking toward the car. After opening and closing the hatchback, the figure entered the car and began driving toward Moon’s Laundry. At this point Officer Muna blocked Tuncap’s car with his police cruiser, and the officers exited their vehicles and drew their weapons. The officers ordered the driver out of the vehicle. As the driver exited, they asked if he was Joseph Tuncap. Tuncap confirmed his identity and laid on the ground as ordered. Officer Paulino kept his weapon pointed at Tuncap while Officer Muna handcuffed him.

[4] At this point, Officer Muna conducted a patdown of Tuncap. He felt a bulge in Tuncap’s front pocket. Officer Muna asked Tuncap what it was, and Tuncap replied that it was his money. Officer Muna pulled the money out of Tuncap’s pocket. He then patted down Tuncap’s back side and found coins in his back pocket.

[5] Once Tuncap was handcuffed and placed in the back of the police car, the officers searched Tuncap’s vehicle. After searching the vehicle, and approximately half an hour after Tuncap was handcuffed, the officers went to search nearby buildings and discovered evidence of a burglary at Triple L Construction and at Moon’s Laundry.

[6] In addition to the charges against Tuncap stemming from the October 31, 2010 burglaries, Tuncap was also charged with an October 13, 2010 burglary of the Horse and Cow Bar and Grill (“Horse and Cow”). Record on Appeal (“RA”), tab 8 at 2 (Indictment, Nov. 9, 2010). The morning of the Horse and Cow burglary, an employee discovered the break-in and called the police. Once the police arrived and confirmed that the building was safe, the employee-witness surveyed the premises. Gaming machines and pool tables were vandalized. In addition, two security cameras were tampered with.

[7] The only evidence that Tuncap committed the Horse and Cow burglary was the surveillance video taken by security cameras at the restaurant. To support the admission of the surveillance video, the People provided testimony of the investigating officer, GPD Officer John Camacho, who had investigated the scene. In addition to testifying about the evidence of the burglary, he testified that the security camera in the manager’s office had been tampered with. He also testified that a security camera overlooking a hallway had been tampered with. Officer Camacho declared that he had viewed the surveillance video from Horse and Cow’s monitors on the day of the burglary, that the video matched what he had observed of the scene, and that the video presented in court was the same as the one he had viewed from the monitors at Horse and Cow. He then identified Tuncap as the man he had seen in the surveillance video.

[8] Tuncap was subsequently charged with three counts of Burglary (As a Second Degree Felony), two counts of Attempted Theft of Property (As a Second Degree Felony), and one count of Theft of Property (As a Third Degree Felony). He moved to suppress the evidence obtained during his October 31 arrest, arguing that the arrest was unconstitutional for lack of probable cause, and to dismiss the indictment on the grounds of insufficient evidence. The trial court denied his motions to dismiss and suppress, and the case proceeded to trial.

[9]