Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 62037333
MORRISON, J.
A jury convicted defendant Allan Francis Davids of assault, a misdemeanor (Pen. Code, § 240; undesignated section references are to this code), as a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) as charged in count one, and of cultivation of marijuana (Health & Saf. Code, § 11358; count two). In bifurcated proceedings, defendant admitted a prior felony conviction and two prior prison term allegations (§ 667.5, subd. (b)). The court found that the prior felony conviction constituted a strike prior (§§ 667, subds. (b)-(i), 1170.12). The court sentenced defendant to state prison for an aggregate term of four years eight months, that is, 32 months (the low term of 16 months, doubled for the strike prior) for cultivation plus 2 one-year enhancements for the prior prison terms. The court sentenced defendant to 180 days for misdemeanor assault, to run concurrently to the state prison sentence. Defendant appeals, contending the trial court erroneously denied his motion to suppress (§ 1538.5). We agree and will reverse defendant’s conviction for cultivation of marijuana. We will remand for further proceedings.
The facts are taken from the transcript of the hearing on defendant’s suppression motion.
On July 25, 2003, law enforcement officers went to defendant’s residence to arrest defendant for felony assault upon his stepson which occurred the previous night. Officers had a copy of the crime report and a DMV photograph of defendant. Officers knew that defendant was also wanted in another county on a misdemeanor. Defendant’s residence was located in a rural area. The officers went down a long dirt road to defendant’s residence. A driveway to the residence is located near the west side of the front of the residence, at a 45 degree angle. The land around his residence was not fenced. Placer County deputies who were in their vests marked “Sheriff” parked their vehicles. As soon as they approached the residence with weapons drawn, defendant walked out the front door, confirmed his identity and was taken into custody. He was handcuffed and placed on the ground. Detective Jeffrey Potter stayed with defendant at the front of the house near the front door while other officers conducted a protective sweep to secure the surroundings and for the safety of the officers. Detective Jeffery Adams explained that the protective sweep was to check for “unfriendlies” since defendant was being arrested for felony assault and “other people associate with other people who might be wanted by the law.” Detective Potter stayed in front with defendant “until everything was clear and secure.”
Detective Donald Pollock and Deputy Tarabetz went to the west side and rear of the house to monitor any doors that might exist and Sergeant Ron Ashford, Detective Adams and Ken Addison went inside the house. Sergeant Ashford looked out a window on the east end of the house and saw marijuana plants outside in a grassy area; the grass was high and the marijuana plants were not tall. Sergeant Ashford or Detective Adams informed Detective Potter. Detective Potter then moved towards the east side of the house. Remaining in the front yard of the house, he then saw the marijuana plants in a rough frame which was partially surrounded by a chicken wire fence, with no roof and a tarp on the side which partially blocked the view. Detective Potter could not see the marijuana plants from his initial vantage point at the front door of the house while standing with defendant; only after Detective Potter moved towards the east side of the house but still in the front yard could he see the plants behind the tarp.
Detective Pollock who conducted the protective sweep outside, on the west side and rear of the house, saw the marijuana plants inside the fenced-in structure on the east side of the house. He did not have to climb any fences or go through any gates to reach his position. He did not recall seeing a tarp. A tarp also partially blocks the view of someone on the rear side of the house. Detective Pollock did not write in his report that he had seen the marijuana.
Inside the house, Margaret Ketterling, defendant’s spouse, was questioned by Detective Adams after the house was secure. Detective Adams asked her whether there was anything illegal in the house. Ketterling responded that defendant had a box of marijuana and paraphernalia under the bed in the master bedroom. Ketterling gave the officer permission to retrieve it, telling the officer that she did not want the marijuana in her house. Detective Adams then seized the items. There was one other person in the house.
Defendant testified at the suppression hearing. When he saw the officers as they parked their cars, he walked out of the house and was immediately arrested.
Defendant moved to suppress 14 marijuana plants and a black plastic water line seized from outside his house, a metal tray, smoking devices and other marijuana found inside his house. He also moved to suppress all observations and evidence after the illegal search and all statements made. Defendant asserted a right of privacy and argued the search and seizure was conducted without a warrant and was unreasonable. He argued the protective sweep was unwarranted and unconstitutional and all evidence obtained as a result of the violation was tainted and, as “fruit of the poisonous tree,” should be excluded.
The prosecutor argued defendant’s right of privacy was not violated in that the marijuana plants were in plain view from a vantage point the officers had a right to be, that is, the front yard, and that the protective sweep was lawful during which officers saw the marijuana. The prosecutor also argued the marijuana located inside the house was not obtained as a result of a search but instead by Ketterling’s admission and defendant had no right to assert Fourth Amendment rights of another.
The prosecutor presented no evidence to support his written argument that the marijuana being cultivated would have been discovered through an independent source, that is, that “the [d]eputies had information that marijuana was being cultivated (hence the reason for the victim’s beating).” Nor did the prosecutor present evidence to support his other written argument that the deputies had reason to believe that John Raley was staying with defendant and may have attempted to destroy evidence inside the house after defendant’s arrest. Officers testified that they conducted the protective sweep because they did not know how many people were in the house and did not ask defendant.
The trial court denied defendant’s motion, finding that the evidence did not support a protective sweep but that the marijuana was visible from the front yard so there was no right of privacy.
In ruling on the motion, the trial court stated: “As far as I’m concerned, the first witness, Mr. Potter, was the lead man on this. I haven’t heard anything about a co-defendant. I haven’t heard anything about weapons. Frankly, I’m not prepared -- I’m moving backwards I mean as far as the evidence is concerned. I’m not prepared -- I wanted to put something on the record. [¶] I’m not prepared to make a finding that you arrest a person for a felony outside of his home, that gives the officers the right to make a protective sweep. I think it takes a little more than that. Some valid reason for them having some kind of feeling up their backbone of a little bit of danger. [¶] However, the law is clear as far as what is in your yard, if you can see it from the front yard, that’s it. I don’t see the right of privacy. For the reason of a failure of right of privacy is the reason I am going to deny the motion. I think that’s clear enough if anybody wants to take it anyplace else.” In responding to defense counsel’s question about a finding of fact with respect to the visibility of the marijuana plants from the front yard, the court stated: “I have the photographs here, and there is no question in my mind, especially from looking at photograph -- photograph number 1 is the photograph of the front of the house. You can see the tarp. There is a gap in the tarp, at the end of the tarp. Photograph number 5 shows that gap, and in the gap is a wire fence that you can see the marijuana growing. It’s that simple.” Defense counsel stated for the record that there was no testimony about when the photographs were taken because the person who took the photographs did not testify. Defense counsel also noted that Detective Potter testified that he could not see the marijuana because of the tarp. The court responded, “That’s for the record. And that’s the Court’s ruling.”
DISCUSSION
“The Fourth Amendment provides ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .’ [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.]” (People v. Camacho (2000) 23 Cal.4th 824, 829-830 (Camacho).) Evidence obtained as a result of an unreasonable search and seizure is excluded at trial only if exclusion is required by the federal Constitution. (Id. at p. 830.)
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
Here, the officers did not have a search warrant. The prosecution had the burden of proving that no search occurred or an exception to the warrant requirement applied. (Camacho, supra, 23 Cal.4th at p. 830.) The trial court determined the protective sweep was not supported by the evidence. The Attorney General does not challenge this determination.
“A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” (Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276, 281] (Buie).) A protective sweep is justified by an officer’s “reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” (Id. at p. 337.) A protective sweep “may extend only to a cursory inspection of those spaces where a person may be found” and “lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” (Id. at pp. 335-336; see United States v. Colbert (6th Cir. 1996) 76 F.3d 773, 777.) A “‘mere abstract theoretical “possibility” that someone dangerous might be inside a residence’” is insufficient to support a protective sweep. (People v. Ledesma (2003) 106 Cal.App.4th 857, 866.)
We conclude the trial court properly concluded that something more than just a desire to secure the area and check for officer safety reasons is required for a protective sweep. Here, there was no evidence presented at the suppression hearing to support the officers’ reasonable belief that they were in danger. Upon the officers’ arrival at defendant’s residence, defendant walked out the door and was immediately detained. He did not thereafter pose a threat to the officers. There was no evidence presented at the hearing that the officers believed there was anyone inside the house who posed a danger to the safety of the officers. The officers who testified claimed they did not know if anyone was inside the house. The trial court properly determined that a protective sweep was not warranted.
In denying the motion, the trial court determined that defendant had no right of privacy and that the marijuana plants found outside the house were in plain view, visible to anyone in the front yard. We conclude that but for the unlawful protective sweep, there is no evidence that the officers would have seen the marijuana plants outside, on the east side of the house, and the trial court erred in denying defendant’s suppression motion.
The court made no ruling with respect to the marijuana found inside the house. But defendant was charged with cultivation, not possession or possession for sale.
“The ‘ultimate standard set forth in the Fourth Amendment is reasonableness’ [citation], and, after Katz v. United States (1967) 389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576] (Katz), we ask two threshold questions. First, did the defendant exhibit a subjective expectation of privacy? Second, is such an expectation objectively reasonable, that is, is the expectation [one that] society is willing to recognize as reasonable? [Citations.]” (Camacho, supra, 23 Cal.4th at pp. 830-831.)
The Attorney General claims Sergeant Ashford’s observations of the marijuana plants from inside the house is “irrelevant” as is the timing of Detective Potter’s discovery with respect to the question of whether defendant had a reasonable expectation of privacy. We disagree.
“[I]n determining reasonableness, . . . the intrusion on [a defendant’s] Fourth Amendment interests [is balanced] against its promotion of legitimate governmental interests.” (Buie, supra, 494 U.S. at p. 331 [108 L.Ed.2d at p. 284].) The United States Supreme Court explained that “the ‘touchstone of the Fourth Amendment is reasonableness.’ [Citation.] Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. [¶] In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. . . . [T]he proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’ [Citation.]” (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 354-355].)
Lorenzana v. Superior Court (1973) 9 Cal.3d 626 held that “observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. On the other hand, when observations are made from a position to which the officer has not been expressly or implicitly invited, the intrusion is unlawful unless executed pursuant to a warrant or one of the established exceptions to the warrant requirement.” (Id. at p. 634, fn. omitted.)
“It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be ‘immediately apparent.’ [Citations.] . . . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” (Horton v. California (1990) 496 U.S. 128, 136-137 [110 L.Ed.2d 112, 123], fn. omitted.)
“‘The presence of an officer within the curtilage of a residence does not automatically amount to an unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case just how private the particular observation point actually was. It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house. In so doing they are free to keep their eyes open. [Citation.] An officer is permitted the same license to intrude as a reasonably respectful citizen. [Citation.] However, a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy. [¶] What is reasonable cannot be determined by a fixed formula. It must be based on the facts and circumstances of each case. [Citation.]’ [Citation.]” (People v. Thompson (1990) 221 Cal.App.3d 923, 943.)
Curtilage is the area “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” (United States v. Dunn (1987) 480 U.S. 294, 301 [94 L.Ed.2d 326, 335].) In identifying the extent of the curtilage, four factors are considered: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” (Id. at p. 301.) United States v. Johnson (9th Cir. 2001) 256 F.3d 895 concluded that a determination of the curtilage must be reviewed de novo on appeal rather than deferring to the determination by the district court. (Id. at pp. 901, 909, fn. 1, 912-913.)
In Camacho, supra, 23 Cal.4th 824, two officers responded to the defendant’s house around 11:00 p.m., on an anonymous noise complaint but heard “merely an unidentifiable ‘audible noise[.]’” (Id. at p. 828.) Instead of knocking on the defendant’s front door, the officers entered a side yard of the house, looked through a window, and saw the defendant packaging cocaine. (Id. at pp. 828-829.) The officers called for backup and then entered the house through the same window and arrested defendant. (Id. at p. 829.) Camacho found that the officers’ observations from their vantage point in the side yard amounted to a search and were unlawful. (Id. at pp. 829-838.)
Here, Sergeant Ashford or Detective Adams stood inside the house, an unlawful vantage point since the protective sweep was unreasonable, and peered outside into the curtilage to view the marijuana garden. During the protective sweep, Detective Pollock stood outside at the rear of the house, also in the curtilage, to view the marijuana garden. While “the Fourth Amendment does not preclude observations of the curtilage from a vantage point where the police have a right to be and which renders the activities clearly visible” (People v. Freeman (1990) 219 Cal.App.3d 894, 902, citing California v. Ciraolo (1986) 476 U.S. 207, 213 [90 L.Ed.2d 210, 216]), the Fourth Amendment deems certain observations a search when made from a vantage point where officers have no right to be.
In Lorenzana, supra, 9 Cal.3d 626, an officer went uninvited to the side of defendant’s home where no doors or pathways provided access. The officer then peered into a window through a two-inch gap between the drawn shade and the window sill. (Id. at pp. 629-630.) Lorenzana held this conduct “too closely resembles the process of the police state, too dangerously intrudes upon the individual’s reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle; the prosecution cannot introduce into evidence, and the courts cannot be tainted with, that which the intrusion yields.” (Id. at p. 629.)
Here, defendant’s residence was located in a rural area. A long dirt road led to his place. A driveway was located on the west side and front of the residence. The partially fenced-in marijuana garden was located next to and on the east side of defendant’s residence. To protect his privacy, defendant put up a tarp which blocked the view of the marijuana plants by someone standing in the area near the front door as well as by someone standing in the area near the rear of the residence. Anyone standing at the front door of the house could not see the marijuana plants due to the tarp. As Detective Potter testified, the tarp blocked his view from his initial vantage point in the front yard with defendant. Further, defendant immediately exited his house upon the officers’ arrival. The totality of the circumstances indicates that defendant had an objectively reasonable expectation of privacy in the area around the east end of his house. Either Sergeant Ashford or Detective Adams looked out a window and, from his vantage point inside the house, observed the marijuana plants next to the east side of the house and alerted Detective Potter. Detective Potter then moved to an area in the front yard where he could see the marijuana plants next to the east side of the residence. The plants could be seen only if someone happened to wander over to the east side of the front or rear yard far enough. But for the unlawful protective sweep inside and outside the residence, there is no evidence presented at the suppression hearing that the officers would have seen the marijuana plants next to the east side of the house. Not until Detective Potter was alerted to the plants did he move to an area where he could see them from the front yard. Detective Pollock saw the marijuana plants while conducting the unlawful protective sweep from his vantage point in the rear of the residence. Both Detective Potter’s and Detective Pollock’s view of the plants occurred only as an exploitation of the unlawful protective sweep. The evidence seized from outside the residence, the marijuana plants and the black plaster water line, should have been suppressed.
There was evidence (i.e., a box with marijuana and drug paraphernalia) seized from inside the house which was discovered after the unlawful protective sweep and during questioning of defendant’s spouse. This evidence is likewise subject to suppression since it was discovered as an exploitation of the initial illegality.
DISPOSITION
The trial court’s ruling denying the suppression motion is reversed. The trial court is directed to enter an order granting the motion. Defendant’s conviction for cultivation of marijuana is reversed as are the strike prior and two prior prison term findings. Defendant’s conviction for misdemeanor assault is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion.
We concur: SCOTLAND, P.J., ROBIE, J.