People v. Brown CA3 ( 2021 )

Filed 6/7/21 P. v. Brown CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091732
Plaintiff and Respondent, (Super. Ct. No. 19FE015841)
v.
STANLEY RAY BROWN,
Defendant and Appellant.
Defendant Stanley Ray Brown pleaded no contest to drug possession for sale with
a gun enhancement and being a felon in possession of three firearms. On appeal, he
claims error in the denial of his motion to suppress evidence found in a warrantless
search of his residence. (Pen. Code, § 1538.5.)1 As we will explain, we agree that the
search of the second floor of the residence did not meet the legal requirements of a valid
1 Undesignated statutory references are to the Penal Code.
1
protective sweep. Although the Attorney General argues additional grounds to uphold
the search, none are valid. Consequently, we reverse the judgment and remand for
further proceedings related to the plea.
BACKGROUND
Preliminary Hearing
At the preliminary hearing, the parties stipulated there was no search warrant
involved in this case. Sacramento County Sheriff’s Deputy Benjamin Gil was the sole
witness. He testified that on September 1, 2019, he responded to a 911 call from Sarah
Anderson’s mother, who told dispatch that Anderson and her boyfriend, who was later
determined to be defendant, were arguing and physically fighting, and that there were
pistols and rifles at their apartment.
Deputy Gil checked the department’s known persons finder database and learned
defendant had an active felony no-bail warrant and past convictions involving firearms
and sales of narcotics. He also learned a person named J. Copes, who was on formal
searchable probation, listed her probation address of record as the same apartment. He
did not verify whether Copes still lived there; he did not contact the probation
department, check Copes’ criminal record, or check the “I-CLETS” database. Gil was
not aware that Copes was actually then incarcerated.2
2 The Attorney General argues there is no evidence Copes was incarcerated at the time of
the search, which occurred fewer than five months after Copes’ April 2019 sentencing to
two years in jail. At the time of the hearing, the prosecutor did not contest the assertion
that Copes was incarcerated at the time of the search, and the magistrate seemed to accept
this conclusion when granting judicial notice, as we later explain. The Attorney General
points to Copes’ rap sheet to argue that Copes “would have been on probation” on the
date of the search, but we read the relevant entry to indicate only that Copes had received
a five year grant of probation in July 2018. Her probable status as a probationer at the
time of her sentencing does not signal her release from a two-year custody sentence after
serving five months. In any event, Copes’ custody status at the time of the search is not a
dispositive factor in this appeal; it is undisputed that she was not in the apartment at the
2
Anderson answered the door when officers knocked, and then stepped outside.
Deputy Gil did not see any physical injuries to Anderson, and she did not seem upset.
She told him everything was fine inside the apartment. Gil heard a male voice inside, he
asked the man if he was “Stanley,” and the man said: “ ‘Yeah.’ ” Gil informed Anderson
of defendant’s warrant and she let the officers inside.
Once inside, deputies walked through the first floor to look for any other persons.
Deputy Gil testified the deputies “called for [defendant] because initially [he] heard
footsteps going back upstairs. [They] called for him by name. He came down. He was
detained on the stairs.” Gil later clarified that, while the other deputies checked the first
floor, he “held at the stairwell because [he] knew [defendant] was probably upstairs and
called for him to come down.” He did not ask defendant or Anderson whether Copes
lived at the apartment and he did not call for Copes to come out of the apartment.
After defendant was detained without incident Deputy Gil went upstairs to the
second floor. When asked why he went upstairs, Gil responded that he was “[l]ooking
for additional subjects.” The prosecutor asked him: “Why?” to which Gil replied:
“Given the area and the possibility of firearms inside the residence.” The prosecutor then
asked: “Did the information that you have [sic] from dispatch prior to arriving play any
role in that?” Gil answered: “Yeah. The original caller said there were several firearms
inside the house.” There was no testimony that anyone asked defendant or Anderson
whether anyone else lived at the apartment or saw or heard anything of any significance
on the stairs or upstairs before ascending to the second floor.3
time of the search and that no one followed up on the probation record or asked the
apartments’ two occupants anything about her before searching upstairs.
3 Although the Attorney General asserts that there was the sound of a barking dog
upstairs, there is no evidence that anyone heard the dog prior to ascending the stairs. The
sole mention of the dog barking behind a closed door in one of the upstairs bedrooms
came during Deputy Gil’s explanation on cross examination as to why he did not search
one of the upstairs bedrooms. Further, although the Attorney General asserts that Deputy
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Deputy Gil entered one of the upstairs bedrooms and initially checked under the
bed “[b]ecause that’s a common[]place for people to hide,” did not see anybody, but
discovered a pellet gun and a rifle case. Gil testified the case “was closed, and [he]
grabbed it, and it was heavy like an item was in there.” Based on his training and
experience, upon seeing the case he immediately believed it contained a rifle. He then
opened the case and found a scoped bolt action style rifle. Gil continued to look around
that bedroom and found indications defendant lived in the room, such as mail and
prescription bottles with defendant’s name, along with male clothing, “in plain view.”
He and the other deputies then “went to other rooms” and “made sure there was no one
else.” But they avoided accessing one of the bedrooms that contained a “very large
barking dog” because they “didn’t want to get bit.”
Deputy Gil then returned downstairs and told defendant, who was in handcuffs,
that he had discovered a rifle. Defendant told him the rifle belonged to a roommate. Gil
asked defendant for his consent to search for additional firearms and defendant said a .38
revolver belonging to his stepfather was in a drawer upstairs. He obtained defendant’s
consent to retrieve the revolver and obtained Anderson’s consent to search the entire
apartment. Gil returned to the second-floor room where he had found the rifle and
located a loaded revolver in a dresser, a loaded pistol in a trashcan, 36.82 grams of
methamphetamine in the same trashcan, an open box of sandwich bags on the dresser, a
scale on the dresser, and three cell phones throughout the room. Gil opined the
methamphetamine was possessed for sale.
Gil heard footsteps going up the stairs after the officers called out to appellant, that
assertion misrepresents the testimony. Instead, Gil testified that the deputies “called for”
defendant before detaining him “because initially [Gil] heard footsteps going back
upstairs. We called for [defendant] by name. He came down.” Gil did not testify that
any sound was heard on the stairs or upstairs after defendant’s detention, which is when
the deputies went upstairs to search.
4
Deputy Gil never located Copes or ever learned whether Copes lived at the
address. The trial court took judicial notice of Copes’ criminal record, and specifically
that she was sentenced to two years in jail on April 3, 2019.
After Deputy Gil’s testimony, defendant made a motion to suppress all evidence
discovered at the apartment under section 1538.5. The magistrate summarized Gil’s
testimony and concluded “they find essentially, or he does, what he was looking for, in
part, which was any potential firearms in the home that they know that [defendant]
cannot possess[]. . . . [¶] And he obtains the consent of [defendant], and everything else
is found after he obtains consent from [defendant]. And some things are in plain view as
part of that consent. [¶] . . . I don’t see this as some issue that’s connected to [Copes]
being on searchable probation. Even if she were not, everything that transpired, as far as
the search I find to be proper, that they can conduct the search to [sic] as a protective
sweep to insure [sic] their safety. [¶] . . . They could be looking for anybody else that
potentially might be in the home knowing that there are firearms somewhere in the home.
[¶] So I would not grant the 1538.5 motion.” The court then held defendant to answer on
the amended complaint.
Plea and Sentencing
Defendant was ultimately charged with unlawfully possessing methamphetamine
for the purpose of sale (Health and Saf. Code, § 11378; count one) with the enhancement
he did so personally armed with a firearm (§ 12022, subd. (c)), unlawfully possessing
methamphetamine while armed with a loaded handgun (Health and Saf. Code, § 11370.1,
subd. (a); count two), and three counts of being a felon in possession of a firearm
(§ 29800, subd. (a)(1)) for possessing a “loaded 9mm handgun” (count three), a .38-
caliber revolver (count four), and a “bolt action rifle” (count five).
Defendant filed a motion to dismiss the information with the trial court, arguing
the magistrate improperly denied the motion to suppress. Relying on the preliminary
hearing transcript and not taking any further evidence, the court denied the motion.
5
Defendant pleaded no contest to unlawful possession of methamphetamine for the
purpose of sale with the gun enhancement (count one) and being a felon in possession of
a .38-caliber revolver (count four). The trial court sentenced defendant to the stipulated
five years comprised of the low term of 16 months for methamphetamine possession,
three years for the gun enhancement, and one-third the middle term of eight months for
felon in possession of a revolver. The court imposed a $300 restitution fine but converted
that to nine days of actual time to run concurrently,4 imposed an $80 court operations
assessment (§ 1465.8), a $60 conviction assessment (Gov. Code, § 70373), and struck all
non-mandatory fines. The court then dismissed all other counts.
Defendant timely appealed. The case was fully briefed on December 30, 2020,
and assigned to this panel on January 29, 2021. Although this court denied defendant’s
motion for calendar preference on February 2, 2021, we notified counsel in March that
we were prepared to decide the case and, on defendant’s request, calendared the case for
oral argument in April. The case was argued and submitted on May 19, 2021.
DISCUSSION
Defendant contends the magistrate and trial court erred in denying his motion to
suppress. The Attorney General first counters that the deputies’ initial search of the
upstairs was a valid protective sweep. As discussed below, we agree with defendant that
the magistrate’s relevant findings of fact are not supported by substantial evidence, and
the legal conclusion that the search was a protective sweep was error.
4 We note the court presumably converted the fine under section 1205 even though that
section does not permit conversion of restitution fines. (§ 1205, subd. (f).)
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I
Legal Standards
“The motions before the trial court were submitted on the record of the
preliminary hearing pursuant to [§ 1538.5]. In these situations we disregard the findings
of the trial court and review the determination of the magistrate.” (People v. Nonnette
(1990) 221 Cal.App.3d 659, 664.) On review of the denial of a motion to suppress
evidence, “ ‘[w]e view the evidence in a light most favorable to the order denying the
motion to suppress.’ ” (People v. Tully (2012) 54 Cal.4th 952, 979.) We defer to the
magistrate’s express and implied factual findings that are supported by sufficient
evidence. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 592.) We exercise our
independent judgment in determining the reasonableness of the search. (Ibid.)
The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. (U.S. Const., 4th Amend.) “ ‘It is a “basic
principle of Fourth Amendment law” that searches and seizures inside a home without a
warrant are presumptively unreasonable.’ [Citation.]” (People v. Thompson (2006)
38 Cal.4th 811, 817, quoting Payton v. New York (1980) 445 U.S. 573, 586.) When
police conduct a search or seizure without a warrant, the prosecution has the burden of
showing the officers’ actions were justified by an exception to the warrant requirement.
(People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Chavez (2008) 161 Cal.
App.4th 1493, 1499.)
II
Protective Sweep
The “protective sweep” doctrine is a recognized exception to the warrant
requirement for searches and seizures. (See Maryland v. Buie (1990) 494 U.S. 325,
327).) The doctrine provides that law enforcement may conduct a limited, brief search of
premises to ensure officer safety, if they have a reasonable suspicion that the area to be
swept “harbor[s] an individual posing a danger to the officer or others.” (Ibid.; see
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People v. Ormonde (2006) 143 Cal.App.4th 282, 292.) There must be “ ‘articulable facts
which, taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an individual
posing a danger to those on the arrest scene.’ ” (People v. Ledesma (2003)
106 Cal.App.4th 857, 863 (Ledesma).) This requires “a reasonable suspicion both that
another person is in the premises and that that person is dangerous.” (People v. Werner
(2012) 207 Cal.App.4th 1195, 1206.)
Protective sweeps do not permit “a full search of the premises, but may extend
only to a cursory inspection of those spaces where a person may be found” (Maryland v.
Buie, supra, 494 U.S. at p. 335), such as “in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched.” (Id.
at p. 334.) This cannot include “searching for evidence” unrelated to what “is necessary
to protect the safety of officers and others.” (Id. at p. 335, fn. 3.)
The protective sweep exception is narrowly tailored to the discovery of potentially
dangerous subjects that could cause harm to officers and others. The doctrine does not
permit officers to search through homes without a warrant when there is no affirmative
evidence of other people present. (See People v. Celis (2004) 33 Cal.4th 667, 679 (Celis)
[finding protective sweep invalid in part because officers “had no knowledge of the
presence of anyone in defendant’s house”]; People v. Werner, supra, 207 Cal.App.4th
1195, 1209 [“the evidence showed nothing more than a generalized concern for officer
safety on the part of [the officer]”]; People v. Yi Chih Chen (2020) 50 Cal.App.5th 952,
956 [“The mere fact [the officer] could not exclude the possibility of a dangerous person
in the home, without more, fails to justify a protective sweep”].)
Here, the record does not contain evidence supporting the required reasonable
suspicion that a dangerous individual was upstairs. Although at first blush, it may
certainly appear prudent to look through an entire residence at the time of the arrest of
one of its occupants in case someone else may be inside and may pose a danger, that is
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not the standard. There must be articulable facts supporting a reasonable suspicion that
someone upstairs posed a danger to the deputies; here, there were none.
Labeling a warrantless search a protective sweep does not make it so. Nor does
the suspected presence of firearms. Although the presence of firearms would certainly
bear on the second prong of the analysis and whether subjects present are dangerous (see
Ledesma, supra, 106 Cal.App.4th at p. 865), firearms are not threatening without
someone to wield them. (See State v. Sharpe (2008) 174 Ohio App.3d 498, 511
[882 N.E.2d 960, 970] [“The fact that a gun or other weapon is on the premises could
give other persons an instrument to use in such an attack. But the gun or other weapon
poses no danger to officers absent a person or persons who might use it to launch an
attack”].) Evidence of firearms is insufficient by itself to support a protective sweep.
Deputy Gil did not articulate any facts supporting a reasonable suspicion that
someone was upstairs who posed a danger, nor did he even attempt to do so. All the facts
Gil supplied were related to the search of firearms. When asked why he was looking for
other people, he replied “[g]iven the area and the possibility of firearms inside the
residence” based on Anderson’s mother’s information that “there were several firearms
inside the house.” From this, the magistrate concluded the deputies “could be looking for
anybody else that potentially might be in the home knowing that there are firearms
somewhere in the home.” (Italics added.) And when Deputy Gil found the rifle, the
magistrate commented: “they find essentially, or he does, what he was looking for, in
part, which was any potential firearms in the home.”
Deputy Gil’s actions support the magistrate’s conclusion that he was primarily
concerned with locating firearms; there is no evidence that Gil had any information that
caused him to reasonably suspect that there was an individual upstairs who posed a
danger to the deputies. As we have described in detail above, Gil testified that he stopped
his search in the first room he entered upstairs, to pull out the rifle case from under the
bed and to open it, as well as to look for indications defendant lived in the room. He
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testified that deputies did not even search one of the upstairs rooms during the “sweep”
because of a barking dog; that he never asked Anderson or defendant whether anybody
else was in the apartment; and that he never announced for anyone else to come out.
These facts do not support a finding of reasonable suspicion of a dangerous individual.
There is no other evidence in the record that could indicate other people were
present to justify the search under the protective sweep doctrine, even acknowledging
that courts have found the reasonable suspicion standard met with minimal evidence. In
Ledesma, the court found “the presence of two cars located directly in front of the
residence created a reasonable suspicion that one or more individuals linked to those cars
were at the residence.” (Ledesma, supra, 106 Cal.App.4th at p. 866.) In People v. Maier
(1991) 226 Cal.App.3d 1670, 1675, it was enough that police knew the arrestee
“habitually pursued his criminal activities with accomplices in a most dangerous
manner.” Here, there was nothing.
It was the prosecutor’s burden to justify the warrantless search. The Attorney
General first relies on the possible presence of firearms to justify the search, which, for
the reasons stated above, is not evidence of dangerous people present. Next, the Attorney
General points to Copes, “who resided there [and] was on searchable probation.” Setting
aside the limited probative value of the probation records alone and the deputy’s failure
to validate the records by any other means, this information had no bearing on whether
Copes was present at the time of the search. Knowledge that someone other than
Anderson and defendant may live at the apartment is not knowledge of another person
being present when deputies arrested defendant. (See Celis, supra, 33 Cal.4th at pp. 672,
679 [finding protective sweep unjustified where officers’ surveillance disclosed
defendant’s wife and “ ‘possibly a male juvenile’ ” lived at the residence but on day of
arrest “they had no knowledge of the presence of anyone in defendant’s house”].)
Otherwise an arrest inside a multi-inhabitant residence could always justify a search of
every room regardless of articulable facts someone is currently in the residence posing a
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threat. This would stretch the protective sweep doctrine beyond its constitutional
moorings. (See id. at pp. 678, 680 [constitution requires only “a reasonable
suspicion that the area to be swept harbors a dangerous person” but “a protective sweep
may not be based on ‘a mere “inchoate and unparticularized suspicion or ‘hunch’ ” ’ ”].)
As we noted earlier, the Attorney General’s reliance on sounds upstairs to justify
suspicion of additional persons upstairs is unsupported by the record. The argument that
Deputy Gil “heard footsteps going up the stairs . . . after the officers had already called
out to appellant” does not accurately characterize Gil’s testimony that the deputies heard
footsteps on the stairs after the first time Gil called defendant’s name, when they were
still outside. Once inside, they called his name again and defendant came down the stairs
where he was detained. Deputy Gil did not say he heard steps upstairs after defendant
came downstairs. Similarly, Gil testified to hearing the barking dog after he had gone
upstairs and discovered the rifle; not, as the Attorney General suggests, while he was
downstairs. Nor was there any testimony that the barking somehow prompted the search
of the second story. Indeed, it appears to the contrary, as the record suggests that the
room containing the dog was left unswept.
In summary, the characterization of a walk through search as a protective sweep
does not make it so. Officers are required to have facts supporting a reasonable suspicion
there was someone in the apartment posing a danger; there were no such facts here. The
magistrate’s denial of defendant’s motion to suppress based on a protective sweep was
therefore unsupported by substantial evidence.
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III
Other Exceptions
We also reject the People’s other asserted warrant exceptions.
A. Probation Search
The Attorney General first suggests the search was alternatively justified on the
basis of Copes’ status on formal searchable probation. “In California, probationers may
validly consent in advance to warrantless searches in exchange for the opportunity to
avoid service of a state prison term.” (People v. Woods (1999) 21 Cal.4th 668, 674.) But
“officers generally may only search those portions of the residence they reasonably
believe the probationer has complete or joint control over. [Citation]. That is, unless the
circumstances are such as to otherwise justify a warrantless search of a room or area
under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing
to search such a room or area must obtain a search warrant to do so.” (Id. at p. 682.)
Here, even assuming there was some evidence that Copes was a current resident of
that apartment, there is no evidence the deputies knew which room was Copes’s or that
they even tried to garner such evidence. Deputy Gil was aware defendant and Anderson
lived there, so it would be unreasonable to assume Copes held exclusive control over the
entirety of the apartment. The evidence also supports a contrary conclusion because the
second-floor room contained evidence defendant lived there. The warrantless search was
not justified as a probation search.
B. Consent
Finally, the Attorney General relies on defendant’s and Anderson’s consents to
search the entire apartment, including the second-story bedroom. “ ‘[T]he rule is clearly
established that consent induced by an illegal search or arrest is not voluntary, and that if
the accused consents immediately following an illegal entry or search, his assent is not
voluntary because it is inseparable from the unlawful conduct of the officers.’
[Citations.] The condition of an unlawful arrest renders consent involuntary because
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such consent is necessarily ‘ “induced by compulsion, intimidation, oppressive
circumstances, or other similar factors inherent in the situation which make that consent
less than an act of the free will.” ’ ” (People v. Espino (2016) 247 Cal.App.4th 746, 762.)
The consents here are inseparable from the deputies’ illegal search because they
were given immediately after the disclosure of the rifle. Though the magistrate found
these consents proper, it was predicated on the initial search under the bed being
appropriate. Because we have determined that conclusion is unsupported, the
magistrate’s finding as to the consents’ validity is also unsupported. (See People v.
Ormonde, supra, 143 Cal.App.4th at p. 296 [though the defendant consented to the
search, the court found “the illegal entry inexorably led to the search and seizure of the
contraband challenged here, and defendant’s motion to suppress should have been
granted”].)
IV
Conclusion
“Unquestionably, the work of a police officer in the field is often fraught with
danger. At any given moment, a seemingly safe encounter or confrontation with a citizen
can suddenly turn into an armed and deadly attack on the officer. Society’s interest in
protecting police officers must, however, be balanced against the constitutionally
protected interest of citizens to be free of unreasonable searches and seizures.” (Celis,
supra, 33 Cal.4th at p. 680.) Because no exception to the Fourth Amendment’s warrant
requirement was justified here, the deputies’ search of the second floor without a warrant
was “presumptively unreasonable.” (Ibid.; Payton v. New York, supra, 445 U.S. at p.
586.)
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DISPOSITION
The judgment is reversed. The order denying the motion to suppress evidence is
vacated and the matter is remanded to the trial court with directions to enter a new order
granting the motion to suppress, permit defendant to withdraw his plea should he choose
to do so, and conduct further proceedings as necessary.
/s/
Duarte, J.
We concur:
/s/
Murray, Acting P. J.
/s/
Krause, J.
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