*1 July S107885. [No. 2004.] PEOPLE,
THE Plaintiff and Respondent, CELIS,
RENATO Defendant and Appellant.
Counsel
Nicholas DePento for Defendant and Appellant. General, Anderson, Bill R. Lockyer, Robert Chief Assistant Attorney Attorney General, Schons, General, W. Assistant Steven T. Gary Attorney Getting, Lane-Erwin, Rhonda L. Cartwright-Ladendorf and Sabrina Y. Attor- Deputy General, for Plaintiff and neys Respondent.
Opinion KENNARD, J. defendant of drug Suspecting trafficking, police house, him, him at behind his stopped gunpoint handcuffed and made him sit on the The ground. officers then entered defendant’s house determine there whether was anyone inside who their did might endanger safety. They sized, not find anyone, but did they see box with uniformly wrаpped that, search, packages after a to contain cocaine. proved We address two issues. Was the officers’ initial seizure of defendant an cause, arrest it requiring probable merely detention requiring only of criminal And suspicion was the officers’ into and activity? of defendant’s inspection house permissible as under the “protective sweep” United States Supreme Court’s decision in Maryland (Buie)l S.Ct. We conclude 1093] *5 detained, arrested,
was initially and that the known to the facts fell of a short those to necessary justify protective sweep.
I Defendant Code, was in charged (Pen. San with Diego County conspiracy (a)(1)) subd. § and of more of possession kilograms than 20 cocaine for Code, sale (Health 11370.4, & Saf. (a)(4)). subd. He moved to §§ Code, (Pen. the 1538.5.) evidence. suppress § motion,
At the on the hearing the suppression prosecution presented testimony by Detective John Strain of the Tustin Police in Department Orange Strain was a member a County. of task force statewide investigating drug trafficking by of group suspected and concealing transporting drugs inside truck In large tires. December force members saw small task red truck deliver one tire pickup such residence in Los Angeles County. tire would used to Suspecting drugs, executed a transport police $400,000 tire, search warrant that site and seized in cash and the which had Later, been slit open. California Patrol officers the red Highway stopped the in a false in truck in San Hidden Diego County. compartment pickup $50,000 found task force members truck in cash. In January was in an with materials together drug packaging another truck tire cut-open did none these incidents County. in Los In Angeles abandoned hоuse recover drugs weapons. in the the red truck involved force members later learned that pickup Task an in to someone with County registered truck tire Los delivery Angeles surveillance During Street in San City Diego. address Concepcion location, outside; to a its registration a car traced they they that saw parked Street, then defend- They put on A defendant’s residence. Diego San house ant’s house under surveillance. 26, 2000, home in Strain saw defendant leave his
On Detective April There, air in defendant an put and to a tire store San Diego. minivan drive drove day, home. Later that same he tank into his van and drove pressurizing car He his border with the tank his minivan. parked Mexican still border, him. officers lost sight and across the where the undercover walked as drove around task followed defendant he The next force members day, as in “evasive such driving,” San with his wife. Defendant Diego engaged Detective Strain indicated defend- lane which to abrupt changes, making his defendant drove from day, ant knew he was followed. Later being left the store tire he had He day. home to same store visited previous minivan, but for defendant’s big tire. The tire was too with a deflated day, fit truck. That same it would a one-ton pickup Detective Strain thought man, store, who time returned the tire this accompanied air tank into pressurizing as Luis Ordaz. took an They was later identified while, tank defendant’s house returned with the they tire After shop. took it inside. house, later, the back door of his defendant came through
Some 40 minutes to Detective truck tire toward It alley. appeared inflated rolling *6 from the tire shop. had back brought Strain to be the same tire defendant time, green the full-sizеd alley driving Ordaz arrived in About the same alley the rolling tire defendant was toward truck. Suspecting pickup narcotics, his and out gun Detective Strain pulled contained either money and to was handcuffed made and to Defendant stop. ordered defendant Ordaz had noticed Detective Strain the wall of the house. Because against sit down him, lived with Strain juvenile” wife a male that defendant’s and “possibly to if there was the house determine with other officers entered together It less than two minutes their took safety. inside who anyone might endanger did find anyone officers the house. The 500-square-foot to walk through the inside, to conceal Inside large enough person. a wooden box but did see 673 later, sized, box were Some 20 minutes uniformly several wrapped packages. the obtained defendant’s search the which consent packages, to contain 16 cocaine. searched the truck proved They of also kilograms tire, which contained 25 of cocaine. kilograms evidence,
After denial of his motion to and suppress pled guilty a 12-year received sentence. The Court оf defendant’s prison rejected Appeal motion, challenge to trial court’s denial of his and affirmed it suppression of We for judgment conviction. defendant’s review. granted petition II Amendment,
The federal Constitution’s made Fourth to the applicable Amendment, states through Fourteenth unreasonable seizures. prohibits Const., I, Our state Constitution (Cal. includes similar art. prohibition. §13.) “A seizure occurs whenever a officer means ‘by of physical force or show of restrains the of a to walk authority’ liberty person away.” v. 224, 569, (People (1994) Cal.4th 229 885 P.2d Souza Cal.Rptr.2d [36 982], v. Ohio 1, 19, 889, Terry quoting (1968) 392 U.S. fn. 16 L.Ed.2d [20 1868].) S.Ct. determined Whether a seizure has taken is to be an place by test, objective which asks “not whether the citizen he perceived movement, ordered to being restrict his but whether officer’s and words actions would have (California v. conveyed that reasonable person.” 621, Hodari D. (1999) 690, 499 U.S. 1547].) L.Ed.2d 111 S.Ct. [113 Thus, when police in conduct engage that would to a “communicate[] that he was not at person liberty ignore police presence business,” go about his there has been a seizure. Texas v. (Kaupp (2003) 626, 814, Florida v. Bostick 1843]; L.Ed.2d (1991) 123 S.Ct. [155 429, 389, 501 U.S. 2382].) L.Ed.2d 111 S.Ct. [115 arrest, When the seizurе of a to an be amounts it must person supported Texas, an arrest warrant or by cause. (Kaupp probable 538 U.S. Probable cause exists when the facts known to the arresting officer would someone of persuade “reasonable caution” that person (Dunaway arrested has v. New York (1979) committed a crime. 442 U.S. fn. 9 L.Ed.2d 2248].) 99 S.Ct. cause is fluid [60 “[P]robable concept—turning on the assessment factual probabilities particular
contexts____” (Illinois v. Gates 462 U.S. L.Ed.2d 2317].) 103 S.Ct. It is (Maryland v. Pringle definition. incapable precise “ 800].) 124 S.Ct. ‘The substance of all the definitions of cause is а reasonable ground ” belief and that guilt,’ belief must be with to the “particularized respect (Ibid.) . to be . . seized.” person
674 be cause justified by probable But all seizures of the must person “not (Florida 491, 498 v. Royer (1983) to arrest for crime.” [75 Ohio, White, Terry J.).) In v. L.Ed.2d 103 S.Ct. (plur. opn. 1319] created a limited the United States Court supra, U.S. Supreme 392 . . . frisk for when “stop that allows officers to and police weapons” exception about to has committed or is person have an “articulable they suspicion [the] Thus, (Florida v. 498.) an who Royer, supra, at officer p. commit a crime.” dеtention investigative cause to arrest can conduct a brief lacks probable “ criminal is afoot activity there is ‘some manifestation’ objective when (People to in that v. activity.” and that is person engaged stopped Souza, 230; also United States v. 9 Cal.4th at (1981) 449 supra, see Cortez p. 690].) investigative Because an L.Ed.2d 101 S.Ct. U.S. [66 conduct is crimi detention to ascertain whether police suspicious allows last no than is longer such a detention “must be and nal activity, temporary (Florida Royer, supra, v. at to effectuate the necessаry purpose stop.” 500; 777, 784 see also Wilson Court v. 34 Cal.3d Superior “duration, as limited in P.2d detention [describing Cal.Rptr. 325] and purpose”].) scope a detention and an arrest some “may
The distinction between (United v. Sharpe States create difficult line-drawing problems.” instances 1568]; see also United U.S. 105 S.Ct. v. (9th 1996) F.3d is no States Cir. Torres-Sanchez [there “ crosses the line and for when an determining investigatory stop ‘bright-line ”].) This much clear: A brief and becomes an arrest’ is stop patdown is an detention merely investigative someone of criminal activity suspected Ohio, (Terry supra, v. no more than a reasonable suspicion. requiring from his bed at 3:00 a.m. 6-7.) But removing 17-year-old youth U.S. pp. car station for him in handcuffs by patrol police and transporting be unreasonable absent cause has been held to questioning probable Texas, committed a crime. (Kaupp believe that has youth view, to a “involuntary transport In the court’s such high to invoke the is like ‘sufficiently station for police questioning arres[t] only be made on constitutionally rule that arrests may traditional ” (Ibid.) cause.’ when, as arrest he was to warrantless subjected Defendant here contends house, he his alley truck tire into the behind rolling he was handcuffed, sit on the while ground and made to at gunpoint, stopped a danger if anyone the house determine through posing officers walked below, we conclude For discussed was inside. reasons safety their defendant, sit him making ground and handcuffing stopping detention. only investigative minutes was an few investigative distinguish hard and fast line to permissible is no “[T]here Instead, decided the issue is de facto arrests. from impermissible detentions
675 case, diligently on the facts of each with focus on whether the pursued police of or confirm their a means to investigation reasonably designed dispel reasonably the least intrusive means available under quickly, using suspicions (In M. re Carlos the circumstances.” 220 384-385 Cal.App.3d United 447]; supra, States v. 470 at Sharpe, Cal.Rptr. see also [269 assessment, “duration, 685-688.) however, to are Important this pp. scope Court, (Wilson v. and of the Superior supra, 34 Cal.3d at purpose” stop. 784.) p. duration, With to the United States Court has that respect said Supreme
“ ‘the of the brevity invasion of individual’s Fourth Amendment interests is an factor in whether is so important determining the seizure minimally ” (United States v. as to be intrusive justifiable suspicion.’ supra, 470 U.S. at Sharpe, intrusion,
With to the of the regard a at police scope stopping suspect him, him gunpoint, handcuffing making ground and sit on the for a short here, as occurred do not convert a into an period, (See detention arrest. v. Soun (1995) 34 People Cal.App.4th 1517 Cal.Rptr.2d 822] when the defendant “was removed from the car at gunpoint by [detention officers, number of was forced to lie on the police ground, was car, and handcuffed in placed frоm the site of the patrol transported lot,” distance of three to a he blocks where was held for 30 stop parking M., In re Carlos minutes]; 220 384 at when Cal.App.3d [detention the defendant was handcuffed and for identification transported hospital victim; duration]; Haynie v. Los 30-minute County Angeles rape (9th Cir. 2003) F.3d 339 brief . . 1077 . restriction such as liberty, [“A during Terry v. handcuffing, arrest”]; is not de Gallegos City facto stop Angeles Los (9th 2002) Cir. F.3d 308 at stopped gunpoint [driver truck, and ordered out of his handcuffed and held car for in between patrol detained, v. arrested]; United States Alvarez and minutes was (9th 1990) Cir. F.2d 838-839 detention when the defend [investigative car]; ant at Buffington United States (9th forced of his v. gunpoint get out 1987) Cir. 815 F.2d arrest when driver was stopped [no United States v. ordered out of car forced to lie on the gunpoint, ground]; Bautista (9th 1982) Cir. did not [handcuffing 684 F.2d convert arrest]; into People detention but Campbell see Cal.App.3d under arrest when functionally 595-596 Cal.Rptr. 442] [the him, at an and took him to him handcuffed airport stopped gunpoint, an office for went questioning; beyond “reasonably necessary restraint detention”].)
Of significance too are facts to the officers detеrmining known their whether actions went those effectuate the beyond necessary purpose is, confirm of criminal
of the stop, quickly police suspicions dispel *9 M., 500; (Florida supra, In re Carlos Royer, supra, U.S. at activity. p. 460 384.) traffic rarely a routine would Cal.App.3d Although stop justify handcuffs, a actions drawing gun using may a officer in or such police a felony. the is of of committing when someone appropriate stop suspected Here, had was concealing Detective Strain reason to defendant suspect tire out the either or the truck he was drugs drug large rolling proceeds baсk door of toward a truck driven Ordaz. Faced by his house waiting pickup two each of whom flee if Detective Strain one suspects, might stopped with other, him to to ensure but not the it was not unreasonable for draw his gun investigative did not turn defendant’s that both would so suspects stop. Doing arrest; defendant detention into an nor did the use of handcuffs or sit making Strain fellow officers to on the for the few minutes it took and his ground house to the of through walk defendant’s ascertain 500-square-foot presence to the officers.1 posing danger persons whether, contends, next as the police
We decide warrantless was into defendant’s house an unreasonable search. entry
Ill The federal and state Constitutions unreasonable prohibit only Const., Amends.; (U.S. & 14th seizures but also unreasonable searches. 4th Const., I, the 13.) “It is that the of home ‘physical entry Cal. art. axiomatic § of the is the chief evil which the Fourth Amendment is against wording ” (Welsh v. Wisconsin (1984) U.S. L.Ed.2d directed.’ 748 [80 2091].) A is unreasonable.” 104 S.Ct. warrantless entry “presumptively v. New York (1980) 445 L.Ed.2d 100 S.Ct. (Payton U.S. [63 can be one of the few 1371].) This overcome of by showing presumption the warrant and well-delineated to re exceptions” established “specifically (Katz States L.Ed.2d v. United U.S. quirement “ felon, or imminent 507]), as ‘hot fleeing 88 S.Ct. such pursuit evidence, or ... or the escape, destruction of the need prevent suspect’s or outside the danger risk of to the or to other inside police persons ” (Minnesota v. Olson dwelling’ Court has indicated 1684]). entry 110 S.Ct. The United States Supreme cause requires into a home based on circumstances exigent as the imminent is one of these factors such entry justified believe (Ibid.) destruction of or need to suspect’s escape. evidence prevent the warrantless that will One circumstance recognized exigent support the scene—also others on home—the risk danger 1 Inside, containing uniformly wrapped packages, sized officers saw wooden box cocaine. of what he to be Detective described as “numerous kilos” surmised which Strain for a of a residence under the the justification “protective sweep” provides Buie, 325. supra, high court’s decision in 494 U.S. Buie,
In robbed a One of the the defendant and another man restaurant. warrant for robbers was a red suit. Police obtained an arrest jogging wearing There, the defendant and executed it at his one officer shouted into the house. so, he basement to come When defendant did everyone up. “ ‘in case there arrested. Another officer then entered basement promptly (Buie, was someone there.” In else’ down plain suit, (Ibid.) view the officer saw a red he seized. with jogging Charged which the restaurant defendant moved suit. The robbery, suppress jogging *10 the trial court denied the motion. That was overturned Maryland ruling by tribunal, Court of state’s the highest which invalidated search Aрpeals, (Id. cause because the probable officers lacked search the basement. at decision, turn, 329.) That in was vacated the United by States p. Supreme Court, which concluded that the cause standard did not probable apply 327, (Id. at “protective 337.) court that as incident The sweep.” pp. explained could, to an arrest “the officers and as matter without precautionary cause or reasonable look in other probable closets and suspicion, spaces the immediately from which an could bе adjoining place arrest attack (Id. launched.” at immediately the limited incident p. [describing search 752, Chimel v. to arrest authorized by 395 U.S. California 2034]].) that, But 89 S.Ct. it stressed that an beyond inspection undertaken outside the immediate the area of arrest must be by supported which, “articulable facts taken with the rational inferences from together facts, those would warrant officer reasonably believing in the prudent area to be harbors an swept individual to those on the arrest posing danger (Buie, supra, at 334.) scene.” The court then remanded cаse to the p. high the Maryland Court of to reconsider whether the evidence Appeals prosecution’s the at hearing was sufficient the into the suppression justify entry officer’s basement as a under reasonable standard “protective sweep” suspicion (Id. articulated in Buie. 337.) at p. Buie,
In in authorizing protective defendant’s house sweep supra, U.S. Terry court on set out in v. high drew principles Ohio, officers, supra, U.S. 1. That allowed to an decision incident detention, on-the-street to conduct “a limited for where a patdown weaрons belief, reasonably officer would be warranted in the based on prudent facts,’ and and a mere ‘specific articulable not on ‘inchoate and unparticular ’ “hunch,” ized or ‘that he an suspicion dealing dangerous is with armed and ” Ohio, (Buie, supra, individual.’ at Terry v. at supra, p. quoting pp. Buie
27.) home,” that with “an in the existed “an recognized arrest there analogous interest of the officers in to assure that the themselves taking steps been, in being,
house which a is or has arrested is just harboring suspect who could launch an dangerous other who are and persons unexpectedly (Buie, 333.) attack.” at p. Buie, we supra,
From the court’s U.S. draw decision high safety these A of a house for officer as conclusions: protective sweep Buie, does not there described in cause to believe is require probable (Buie, supra, to the in the area to someone officers be posing danger swept. 327.) A based entry at is unlike warrantless into a house p. sweep (one of which concerns exigent danger circumstances risk scene); into a be others on the such an home must suppоrted cause to believe that a be found by will inside. dangerous person Olson, supra, Minnesota v. (See 100.) A can protective be sweep a suspicion area to harbors justified merely by swept (Buie, supra, 327.) Like the limited dangerous person. patdown Ohio, 21, 27, Terry U.S. supra, authorized weapons protective “a not be based on mere ‘inchoate sweep may suspicion unparticularized (Buie, supra, or “hunch Buie,
In
who
the officer
conducted
protective
of the
did
while
inside the
lawfully
defendant’s basement
so
sweep
already
*11
fаcts,
house to serve an arrest warrant. Given these
arise whether
questions
Buie's lowered level of
a
justification—reasonable
person
suspicion
a
the officers is in the area to be
limited
danger
only
searched—is
posing
the
a
already
to those situations in which
officers are
inside
house
lawfully
house,
arrest,
whether
a
as in
conducting an
it will
into
support
entry
case,
who lack
cause to make an arrest but who have
this
officers
a
courts have differed
lawfully
just
detained
outside.
suspect
Appellate
concluded,
for а
have
Some
regarding
requirements
sweep.
protective
Buie,
must
consistent with the facts
that a
protective
presented
sweep
v. Davis
United States
(See
(10th
“incident to”
a lawful arrest inside a house.
1242,
1239,
2002)
“incident
Cir.
F.3d
fn. 4
must be
to”
290
[protective sweep
Reid
house];
United States v.
(9th
2000)
226
lawful arrest inside a
Cir.
F.3d
1020,
fleeing
a
is detained after
an
does
suspect
apartment,
[when
not authorize
have upheld
of the
Other courts
sweep
protective
apartment].)
a house for some
lawfully
when
officers were
inside
protective sweeps
United States v. Gould
(5th Cir. in
(See
other
to arrest a
suspect.
than
purpose
2004)
inside house with consent can
lawfully
bank
F.3d Cir. D.C. 431 App. 1282, 1284].) F.3d [48
Those cases of a house for a after entry upholding protective sweep had made an arrest outside the house relied on the rationale that “in circumstances, an arrest some outside a home an taking place just may pose serious threat to the officers” as one conducted inside the equally arresting Colbert, (United added; States v. house. 76 F.3d at italics accord, Sharrar v. Felsing, supra, 128 F.3d Would that rationale also when officers enter a home to conduct a after apply protective sweep State v. Revenaugh lawfully (See outside the residence? detaining suspect (1999) 133 Idaho 776-777 P.2d warrant- [upholding [992 771-772] less of house as after officers detained the defendant “protective sweep” on his front That porch drug is an issue we need suspicion possession].) not resolve here because the facts known to the officers when entered they defendant’s house fell short of the reasonable standard suspicion necessary Buie, under supra, justify protective U.S. 325. sweep When, here, as we review a ruling on defense motion to suppress evidence, we defer trial court’s factual but we findings, independently v. standard to the (People Ayala apply requisite legal facts presented. 3]; 23 Cal.4th 1 P.3d People Cal.Rptr.2d Alvarez 14 Cal.4th 365].) P.2d Officer Cal.Rptr.2d
Strain testified that the officers had on 26 and 2000 conducted a April time, surveillance of defendant’s house on A Street in San Diego. During the officers noted the of defendant’s wife and presence a male “possibly in the juvenile” home. But when on the afternoon of 27th the officers April entered defendant’s for a house moments after protective just sweep detaining in his backyard as he rolled a truck tire toward Ordaz’s *12 truck in the waiting had no alley, they knowledge presence anyone found, in defendant’s house. As the trial court the officers “had not been house”; thus, track of who was in the when keeping entered the house to they conduct a did protective so without sweep, they “any information as to Also, whether was inside the anyone house.” there is no indication that when officers, Moreover, either stopped by defendant or Ordaz was armed. until later consented to a seаrch of the truck tire he was rolling from the back door of his house toward the the officers were unaware alley, (like that the tire the similar tires found in the two Angeles Los County we investigations earlier) discussed had been cut and then resealed open conceal cocaine. The facts known to the officers before they per is, fell short of what formed the protective sweep requires, “articulable facts” considered with the rational inferences together drawn facts, from those that would warrant a officer to entertаin reasonably prudent area be harbors a posing a reasonable swept person suspicion 327, 334.) (Buie, U.S. at to officer danger safety. supra, pp. in the field is often fraught the work of a officer
Unquestionably, moment, encounter or confronta- At safe given seemingly with danger. any an armed and attack on the deadly a citizen can turn into suddenly tion with must, however, be in officer. interest Society’s protecting police free interest of citizens to be balanced against constitutionally protected interests, the and seizures. In both сonsidering of unreasonable searches rules, has articulated certain legal allowing, United States Court Supreme exist, instance, a home when circumstances exigent a warrantless into entry areas of a home where in hiding sweep persons permitting protective earlier, mentioned when the entry to officer As we danger safety. may pose circumstances, on the officers of a house for officer is based safety exigent will be found have cause to believe that dangerous person must probable Olson, 100.) But a (See Minnеsota v. 495 U.S. supra, protective inside. Buie, in can supra, as described court high sweep, cause, namely, suspi- lower than probable standard justified by Because, 679, ante, that lower as we (Id. cion. at p. explained page here, that the higher was not satisfied it follows standard requiring standard met either. cause was not probable met, into defendant’s home neither standard was the police entry
Because York, unreasonable.” v. New (Payton was “presumptively 573, 586.)
Disposition remand, the trial reversed. On The of the Court of is judgment Appeal the оrder denying defendant’s vacate guilty court is set aside plea, evidence, and to reconsider that motion defendant’s motion to suppress here. of our conclusions light Brown, Moreno, J., J., Baxter, J., Chin, J., J., and concurred. C.
George,
WERDEGAR, J.,
in the
conclusion
majority’s
I concur
Concurring.
Unlike the majority,
into defendant’s home was unlawful.
police entry
however,
of the established
I would resolve the case simply by application
cause,
into
that,
warrantless officers’
lacking
principle
to be free
right
of his Fourth Amendment
defendant’s home was in violation
*13
U.S.
(Minnеsota
v. Olson
search and seizure.
from unreasonable
1684].)
S.Ct.
L.Ed.2d
Maryland
In
about
application
speculating
(Buie)
admittedly
to circumstances
As the United majority recognizes, States Court has Supreme “[t]he indicated that into a home based on entry exigent circumstances requires ante, cause to probable believe is entry justified” (maj. opn., 676). that, The court high also has incident to a arrest recognized lawful home, within a of the home the immediate area of protective sweep beyond (Buie, the arrest bemay justified by reasonable U.S. at suspicion. supra, 494 334.) This case involves neither. Here detained defendant outside his home. their Accordingly, warrantless into the home unsupported cause violated his Fourth Amendment be free from unrea- right sonable search and seizure. Our need no more. opinion say