People v. Brown CA3

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

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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

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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.

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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.

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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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