Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061461
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After his motion to quash/traverse the search warrant and suppress evidence (Pen. Code, § 1538.5) was denied, defendant David Fousek pleaded no contest to manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)) and admitted the enhancement for manufacturing methamphetamine in the presence of a child under the age of 16 (Health & Saf. Code, § 11379.7, subd. (a)). He also pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and to possession with intent to manufacture methamphetamine (former Health & Saf. Code, § 11383, subd. (c)). The charge of child endangerment (§ 273a, subd. (a)) was dismissed. Defendant was sentenced to a total term of eight years, four months, suspended, and placed on felony probation for three years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred in denying his motion because there was not probable cause for the issuance of the search warrant. For reasons that we will explain, we disagree. We also determine that even assuming there was not probable cause, the good faith exception to the exclusionary rule (United States v. Leon (1984) 468 U.S. 897) applies and suppression of the evidence is not required. Therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Search Warrant
The factual background is taken from the search warrant affidavit that was submitted to the magistrate on April 21, 2006.
Deputy Probation Officers Vladimir Palado, Yvette Sarmiento, and Debra Perez went to a house in Salinas on April 21, 2006, to conduct a routine probation search on Patrick Fousek, who was on felony probation for a domestic violence conviction. The probation officers knocked on the front door of the house and waited for someone to answer. After a few knocks, the owner of the house, Don Fousek, approached them from outside the house. Officer Palado advised Don that the probation officers were there to conduct a probation search on Patrick. Don said that he was Patrick’s father and entered the house to get Patrick for them.
For purposes of clarity and not out of disrespect, we will refer to Don Fousek and Patrick Fousek by their first names, and David Fousek as defendant.
When Patrick came to front door of the house he was detained by the probation officers. After being detained, Patrick led the probation officers to his bedroom, which was located near the center rear portion of the house. Officer Sarmiento and Officer Perez stayed with Patrick in his bedroom while Officer Palado performed a protective sweep in which he “cleared the rest of the house for officer safety reasons.” During his protective sweep, Officer Palado found a locked bedroom door in the southwest corner of the house. When Officer Palado asked Don why the bedroom door was locked, Don replied that the bedroom belonged to defendant, who was his other son and the twin brother of Patrick.
Officer Palado then returned to Patrick‘s bedroom, where Patrick had remained with Officer Sarmiento and Officer Perez. Officer Sarmiento had conducted a probation search of Patrick’s bedroom while Officer Palado was performing the protective sweep of the house. During the probation search, Officer Sarmiento found five boxes of assorted cold medicines in a black computer case. The cold medicines contained “pseudo ephedrine hydrochloride.” Patrick admitted to Officer Sarmiento and Officer Perez that he had used methamphetamine the day before and would test positive for methamphetamine.
Next, Officer Palado and Officer Sarmiento “continued their protective sweep by clearing the back yard of the residence.” “During their sweep Palado noticed that the window to the locked bedroom on the southwest corner of the residence was open and saw that the curtain was drawn.” Officer Palado “wanted to visually clear the room from the window to make sure that there was no one hiding in the room that could pose a danger to them. [He] then located a small step stool and used it to stand on while he looked into the bedroom.” “Once Palado looked into the room he immediately saw a propane blowtorch with a gas cylinder attached to it just inside the windowsill located on a pile of clothing. He then looked to the right and saw a container of muriatic acid on a table. He stated the container was white in color and had writing on it ‘muriatic acid’ and described it as a one-gallon plastic jug. Palado also saw a metal one-gallon chemical container similar to an acetone or denatured alcohol container on the floor below the jug of muriatic acid. As Palado continued to look into the room he saw a glass coffee carafe sitting on top of the dresser directly in front of the window. Inside the carafe Palado described . . . a white to off-white pasty residue caked to the sides and bottom of the carafe. Palado also . . . could smell a very strong pungent chemical odor emanating from the bedroom.”
“After seeing these items, Palado felt they were consistent with chemicals and items used in a clandestine methamphetamine lab, based on his training and experience with methamphetamine manufacturing. Palado then told Sarmiento what he had seen and asked her to look in the room also. [S]armiento . . . stated that she saw the blowtorch and could smell a very strong chemical emanating from the bedroom.” Officer Palado and Officer Sarmiento decided to report to the sheriff’s office that they had discovered a possible methamphetamine lab. Detective Sanders and other members of the Monterey County Narcotics Enforcement Unit responded.
After arriving at the scene and taking statements from Officer Palado and Officer Sarmiento, Detective Sanders “walked around to the back of the house to the open bedroom window. Once at the window [he] could smell a very strong pungent chemical odor emanating from within the bedroom. [He] could also see the propane blowtorch on the pile of clothing, the white one-gallon jug of muriatic acid, the one gallon metal chemical container and the glass coffee carafe with off white residue caked on the sides and bottom.” The affidavit did not state that Detective Sanders had to stand on the small step stool utilized by Officer Palado in order to look through the window of defendant’s bedroom.
During his investigation, Detective Sanders also observed the five boxes of cold medicine found in Patrick’s bedroom. Based on his training and experience, Detective Sanders formed the opinion that the items seen in the locked bedroom, the cold medicine containing pseudoephedrine, and the strong chemical odor were consistent with methamphetamine manufacturing.
Detective Sanders also questioned Don about the locked bedroom. Don told Detective Sanders that the bedroom belonged to defendant, who normally kept it locked. Don also said that he was not allowed to enter the bedroom, did not have a key to the bedroom door, and the bedroom was only used by defendant. While Detective Sanders was talking to Don, he observed a small child playing on the floor in the house. Don informed Detective Sanders that the child was Patrick’s son, who spent about fifty percent of his time at the Fousek family’s house. Detective Sanders knew from his training and experience that the chemicals associated with methamphetamine manufacturing are very toxic and pose a health risk, especially to young children. A child protective services emergency worker was contacted to remove Patrick’s son from the “potentially hazardous environment.”
Based on the information obtained from Officer Palado and Officer Sarmiento and his own investigation, as stated in his search warrant affidavit, Detective Sanders believed that defendant was involved in the manufacture of methamphetamine and that he possessed methamphetamine for distribution from the house. Detective Sanders requested a nighttime search warrant for the Fousek family’s house, which the magistrate issued on April 21, 2006. The record reflects that defendant’s bedroom was searched on April 21, 2006, and, based on the contents of the room and the testing of several items, the officers determined that there was probable cause to believe that the bedroom contained a clandestine methamphetamine lab.
B. The Original Motion to Suppress Evidence
The amended complaint filed on July 12, 2006, charged defendant with the commission of four felony offenses, including manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1) with an enhancement for manufacturing methamphetamine in the presence of a child under the age of 16 (Health & Saf. Code, § 11379.7, subd. (a)); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2); child endangerment (§ 273a, subd. (a); count 3); and possession with intent to manufacture methamphetamine (former Health & Saf. Code, § 11383, subd. (c); count 4.)
On July 6, 2006, defendant filed a motion to suppress evidence under section 1538.5. Defendant argued that all evidence obtained during the detention, search and arrest of defendant on April 21, 2006, should be suppressed because the search was illegal. According to defendant, there was no legal basis for the protective sweep of defendant’s locked bedroom and no exigent circumstances to justify a warrantless search. Defendant also asserted that his bedroom was outside the scope of his brother Patrick’s probation search condition. No evidence was submitted in support of the motion.
Defendant withdrew his motion to suppress at the time of the preliminary hearing that was held on July 12, 2006, reserving the right to make a future motion to quash the search warrant. The magistrate ruled during the preliminary hearing that several questions asked by defense counsel were irrelevant because no motion to suppress was pending.
The testimony at the preliminary hearing included Officer Palado’s testimony regarding the protective sweep of the Fousek house and backyard. After climbing onto a stool in order to look through the window of defendant’s locked bedroom, Officer Palado could see the blowtorch that was next to the window. However, there was a piece of clothing or blanket partially covering the window, and Officer Palado recalled there was a “possibility that [he] did move the piece of cloth” in order to see the container of muriatic acid.
Detective Sanders testified at the preliminary hearing that upon approaching the Fousek residence to speak with the probation officers, prior to obtaining the search warrant, he smelled the unique chemical odor of a clandestine methamphetamine lab. When he executed the search warrant, Detective Sanders recovered several items from defendant’s bedroom, including a red stained towel, coffee filters, an electric burner, a coffee carafe, two methamphetamine glass smoking pipes, a propane blowtorch, and a white jug labeled “muriatic acid.” Detective Sanders also tested the white substance in the coffee carafe and the results were positive for methamphetamine. Based on his training and experience and the items recovered from defendant’s bedroom, Detective Sanders concluded that “someone was in the middle of manufacturing methamphetamine.”
At the conclusion of the preliminary hearing, defendant was held to answer on all charges.
C. The Motion to Traverse/Quash the Search Warrant
On September 28, 2006, defendant filed a motion captioned “Motion to Quash/Traverse Search Warrant.” The motion incorporated the statement of facts included in the original motion to suppress evidence. No evidence was submitted in support of the motion other than the search warrant and Detective Sanders’s search warrant affidavit, but the motion stated that it was “based upon this Notice and Motion, the Memorandum of Points and Authorities, the prior Motion to Suppress filed [by] the Monterey Public Defender’s Office on behalf of the defendant, the files and records of this case, and any evidence, arguments or authorities, to be presented at the hearing on the motion.”
Defendant argued in his motion to quash/traverse the search warrant that the following evidence should be suppressed: (1) all observations made by the probation officers and the sheriff’s officers before, during and after defendant’s arrest; (2) all statements made by defendant before, during and after his arrest; and (3) all evidence “not already stated but that arises during the hearing.” The grounds for the motion were defendant’s contentions that the search warrant executed on April 21, 2006, was “insufficient on its face,” “lacking probable cause,” and “executed in violation of federal or state constitutional standards.”
Defendant also argued that the search warrant contained “statements that undermine its reliability and validity. Specifically, the probation officer stood on a stool which was located outside the defendant’s bedroom window to look into his bedroom. Based on these observations of peeking through the defendant’s window, the probation officer requested a search warrant. This information was given to the Monterey County Sheriff. These illegal observations led to the issuance of the warrant and the warrant should therefore be traversed.”
The People opposed the motion on several grounds. First, they argued that the search and seizure was reasonable and defendant had failed to provide any authority to support his argument that Officer Palado had made illegal observations. According to the People, Officer Palado had a right to do a protective sweep of all the rooms in the house for officer safety and the safety of all of the people on the premises. Second, defendant had not shown that the representations made in the search warrant were false, misleading, or inaccurate. Third, defendant had a reduced expectation of privacy in his bedroom due to Patrick’s probation search condition. Finally, the People asserted that Detective Sanders had executed the search warrant in good faith because he believed there was probable cause to search the locked bedroom for evidence of a clandestine methamphetamine lab.
D. The Trial Court’s Order
The trial court denied the motion to quash/traverse the search warrant in a ruling from the bench during the hearing on the motion that was held on November 15, 2006. The trial court found that the probation officers were sufficiently experienced to determine that an odor indicated possible methamphetamine manufacturing and therefore they had “the right to follow the smell and see where the smell was coming from . . . .” The court also determined that, assuming the probation officers had “the right to be in the backyard and see things in plain view,” they had lawfully observed the items in defendant’s bedroom because they “did not have to open the window . . . [or] . . . cross the plane of the window in order to see the items that were in the room and therefore, their information was relayed to the affiant . . . .”
Based on these findings, and also the trial court’s recognition that “there’s no allegation that [Detective Sanders] falsely put anything within the affidavit to secure the search warrant . . .,” the court ruled as follows: “[T]he motion to traverse and quash would be denied. The Court did read the search warrant and there is ample evidence for a magistrate to conclude that there was probable cause to issue the warrant to have the home searched for evidence of methamphetamine manufacturing.”
“Generally, in order to prevail on a motion to traverse an affidavit, the defendant must demonstrate (1) that the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth, and (2) that the allegedly false statement was necessary to the finding of probable cause. [Citations.] If the trial court finds the search warrant affidavit was not materially false, the court simply reports this conclusion to the defendant and enters an order denying his motion to traverse the warrant. [Citations.]” (People v. Luera (2001) 86 Cal.App.4th 513, 524-525.)
E. The No Contest Plea
After his motion was denied, defendant pleaded no contest on February 1, 2007, to manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1) and admitted the enhancement for manufacturing methamphetamine in the presence of a child under the age of 16 (Health & Saf. Code, § 11379.7, subd. (a)). He also pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2) and to possession with intent to manufacture methamphetamine (former Health & Saf. Code, § 11383, subd. (c); count 4.) The charge of child endangerment (§ 273a, subd. (a); count 3) was dismissed. Defendant was sentenced to a total term of eight years four months, suspended, and placed on felony probation for three years.
Defendant subsequently filed a notice of appeal from the order denying his motion to suppress evidence under section 1538.5. The order is appealable, despite defendant’s plea of no contest, under section 1538.5, subdivision (m).
III. DISCUSSION
On appeal, defendant contends that the trial court erred in denying his motion to quash the search warrant because there was not probable cause to issue the warrant, since the evidence used to support the search warrant was obtained from an illegal search. Defendant does not challenge the trial court’s denial of his motion to traverse the search warrant.
The People maintain that the motion to quash the search warrant was properly denied because probable cause to issue the warrant existed and, even if it did not, defendant’s motion was properly denied pursuant to the inevitable discovery doctrine and the good faith exception to the exclusionary rule.
We will begin our analysis with a discussion of the probable cause that is required for the issuance of a search warrant and the standard of review applicable to an order denying a motion to quash the search warrant.
As defendant acknowledges in his supplemental briefing letter, our review of the order denying his motion to quash the search warrant is limited to a review of the evidence set forth in the search warrant and the search warrant affidavit. (People v. Hobbs (1994) 7 Cal.4th 948, 975.) Since the order denying the motion to traverse the search warrant was not challenged on appeal, we do not review the entire record that was available to the trial court in ruling on that motion.
A. What Showing of Probable Cause is Required for Issuance of Search Warrant?
The Fourth Amendment provides that “[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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const., 4th Amend.) Thus, “ ‘[i]t is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” ’ [Citation]” (People v. Celis (2004) 33 Cal.4th 667, 676 (Celis).)
A magistrate may issue a warrant to search a home where the magistrate has a substantial basis for concluding that a “fair probability” exists that a search will “uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040; Illinois v. Gates (1983) 462 U.S. 213, 238.) The United States Supreme Court has stated that “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates, supra, 425 U.S. at p. 238-239.)
B. What is the Standard of Review for an Order Denying a Motion to Quash the Search Warrant?
A defendant may move to suppress evidence obtained as the result of a search or seizure on the ground that there was not probable cause for the issuance of the search warrant. (§ 1538.5, subd. (a)(1)(B)(iii).) If the defendant moves to quash the search warrant, “the court should proceed to determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.]” (People v. Hobbs, supra, 7 Cal.4th at p. 975.)
“In reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates, supra, 462 U.S. at p. 238,] to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]’ [Citation.]” (People v. Hobbs, supra, 7 Cal.4th 948 at p. 975.) Thus, “[t]he magistrate’s determination of probable cause is entitled to deferential review.” (People v. Kraft, supra, 23 Cal.4th at p. 1041; Illinois v. Gates, supra, 462 U.S. at p. 236.) “ ‘ “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” ’ [Citations.]” (People v. Weiss (1999) 20 Cal.4th 1073, 1082; Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)
However, the California Supreme Court has also instructed that evidence obtained in an illegal search may not be used to establish probable cause for a search warrant. (People v. Willis (2002) 28 Cal.4th 22, 29; People v. Machupa (1994) 7 Cal.4th 614, 628; People v. Roberts (1956) 47 Cal.2d 374, 377.) In Roberts,the court ruled, with regard to police officers’ observations after entering an apartment in response to what sounded like groans of distress, “[i]t is, of course, settled that if the conduct of the officers in entering or searching was unlawful, the search warrant subsequently based on their observation in the apartment was invalid. [Citations.]” (People v. Roberts, supra, 7 Cal.4th at p. 377.)
In determining whether the trial court properly denied a suppression motion made on the ground that the evidence used to support the search warrant was obtained from an illegal search, we apply a well established standard of review: “‘We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining, whether on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ Citation]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
With this standard of review in mind, we turn to defendant’s first contention on appeal: Officer Palado’s protective sweep of the backyard and visual search of defendant’s bedroom was illegal, and therefore the search warrant based upon his observations lacked probable cause and was invalid.
C. Was the Protective Sweep Lawful and the Search Warrant Therefore Valid?
Defendant contends that there was no legal justification for Officer Palado’s protective sweep of the backyard of the Fousek residence, and thus the observations of the officers regarding the evidence of methamphetamine manufacturing in defendant’s bedroom, as set forth in the search warrant affidavit, were not lawfully obtained. Defendant explains that the protective sweep of the backyard took place after Patrick was arrested and the probation officers had no reasonable suspicion that anyone else was on the property or in the house who might have posed a danger to them. For that reason, defendant argues that Officer Palado was in a place he had no right to be when observed the window to defendant’s bedroom from the backyard and, therefore, Officer Palado’s visual search of defendant’s locked bedroom, while standing on a stool outside the bedroom window, was illegal.
The People argue to the contrary that the probation officers reasonably suspected that the house might still contain an armed and dangerous individual after Patrick, his father Don, and his three-year-old son emerged. They point to the fact that the probation officers were told that defendant, “who had not appeared, had sole access to the locked bedroom.” The probation officers also, according to the People, based their suspicion on the chemical odor coming from the locked bedroom and the cold medication confiscated from Patrick, which indicated the presence of an active methamphetamine lab and caused a concern for their safety. Based on these facts, the People insist that the probation officers had a reasonable suspicion that “justified continuing their protective sweep through the back yard looking for [defendant] and then spying through his open bedroom window to secure that locked bedroom.”
The reasonableness of a protective sweep performed as an incident to an in-home arrest was addressed by the United States Supreme Court in Maryland v. Buie (1990) 494 U.S. 325 (Buie). The Supreme Court defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Id. at p. 327.) The court ruled that as an incident to an in-house arrest “the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” (Id. at p. 334.)
The rationale for the Supreme Court’s ruling in Buie was the court’s finding that officers have an interest “in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. . . . An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” (Buie, supra, 494 U.S. at p. 333.)
However, the high court also cautioned that the protective sweep could not extend beyond the immediate areas of the arrest absent “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.” (Buie, supra, 494 U.S. at p. 334; Celis, supra, 33 Cal.4th 667, 677.)
Thus, as the California Supreme Court stated in Celis, “A protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person.” (Celis, supra, 33 Cal.4th at p. 678.) The court examines “the ‘totality of the circumstances’ of each case to determine whether the detaining officer has a ‘particularized and objective basis’ ” for his or her suspicion. (People v. Arvizu (2002) 534 U.S. 266, 273.) This approach “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.]” (Ibid.)
Additionally, although Buie involved a protective sweep in the context of an arrest, its holding is not limited to arrest situations. (People v. Ledesma (2003) 106 Cal.App.4th 857, 864.) A protective sweep may properly precede a probation search to ensure the safety of the officers conducting the search. (Ibid.)
In the present case, it is undisputed that the probation officers lawfully entered the Fousek residence without a warrant based on Patrick’s probation search condition. By agreeing to a search condition, Patrick had consented to warrantless searches of his home as a condition of probation. The probation officers were therefore entitled to search not only the areas used exclusively by Patrick, but also areas within the “common authority” of Patrick and the other occupants of the home. (People v. Woods (1999) 21 Cal.4th 668, 676-677; People v. Pleasant (2004) 123 Cal.App.4th 194, 197.) Thus, the probation officers could lawfully search the backyard of the Fousek residence, since the backyard is a common area, in order to determine whether Patrick was complying with the terms of his probation and whether he was obeying the law. (People v. Bravo (1987) 43 Cal.3d 600, 610.) The probation officers were not required to have a reasonable suspicion that the backyard was harboring an individual who posed a danger to them, and the presence of Officer Palado and Officer Sarmiento in the backyard, within sight of the window of defendant’s locked bedroom, was lawful.
While the record lacks a copy of Patrick’s probation search condition, defendant does not dispute the probation officer’s right to enter the Fousek residence to conduct a probation search of Patrick.
Accordingly, the key issue in this case is whether the probation officers could lawfully perform a limited protective sweep of defendant’s locked bedroom while they were in the backyard, by looking through the bedroom window from the vantage point of a step stool outside the window, based on the facts pertinent to reasonable suspicion. These facts, as set forth in the search warrant affidavit, include the discovery of five boxes of cold medicine containing pseudoephedrine hidden in a computer case in Patrick’s bedroom, his admission that he had recently used methamphetamine and would test positive, and Don’s statement that the locked bedroom belonged to defendant and only defendant had a key. Moreover, although Patrick had been detained in his bedroom, defendant’s whereabouts were not confirmed, and, in conjunction with the evidence of methamphetamine use and the presence of a large quantity of cold medication indicating possible methamphetamine manufacturing, defendant’s absence arguably created a reasonable suspicion that he could be hiding in the locked bedroom from which he could launch an attack. (Buie, supra, 494 U.S. at p. 327.)
Based on these facts, we believe that the probation officers had a justifiable interest in assuring themselves that the Fousek residence did not harbor a dangerous person who could unexpectedly launch an attack on them while they were performing the probation search. (Buie, supra, 494 U.S. at p. 333.) Under Buie, the probation officers were therefore authorized to make “a cursory visual inspection of those places in which a person might be hiding,” which included looking in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” (Id. at p. 334.) Here, the places in which defendant might have been hiding in the vicinity of Patrick’s in-home arrest included defendant’s locked bedroom. We see no distinction between an officer who lawfully opens a closet to make a visual inspection of a place in which a person might be hiding, and a probation officer who stands on a step stool to look through the window of a locked bedroom in order to ensure that no dangerous person is hiding there.
Defendant’s reliance on decisions in Celis, supra, 33 Cal.4th 667 and People v. Ormonde (2006) 143 Cal.App.4th 282 (Ormonde) is misplaced because those decisions are distinguishable. In Celis, the defendant was detained outside his house on suspicion of narcotics possession while the police officers performed a protective sweep inside the house because they had noticed that the defendant’s wife and possibly a male juvenile lived with defendant. During their sweep the officers found a box containing cocaine. (Celis, supra, 33 Cal.4th at pp. 672-673.) The California Supreme Court ruled that the protective sweep was unlawful because the officers did not have a reasonable suspicion that the area to be swept harbored a person posing a danger to officer safety. (Id. at pp. 679-680.) The court explained that the officers had not kept track of who was in the house and, therefore, when they entered the house they had no “ ‘information as to whether anyone was inside the house.’ ” (Id. at p. 679.)
In Ormonde, a detective responding to a radio call about a domestic violence incident drove to the apartment complex where the suspect was supposed to be located. (Ormonde, supra, 143 Cal.App.4th at p. 286.) Believing that the domestic violence incident had occurred either inside or outside an apartment, and feeling vulnerable because he did not know if someone was going to come out of the apartment with a weapon, the detective entered the apartment and eventually obtained the defendant’s consent to recover drugs from his bedroom. (Ormonde, supra, 143 Cal.App.4th at pp. 286-288.) The defendant moved to suppress evidence on the ground that the detective’s initial entry into the apartment was not justified either by exigent circumstances or as a protective sweep. (Ormonde, supra, 143 Cal.App.4th at p. 290.) In regard to the protective sweep, this court concluded that the detective did not have reasonable suspicion to believe that there were potentially dangerous persons inside the apartment because the detective had testified that he was attempting to determine if anyone was in the apartment. (Id. at pp. 294-295.)
Thus, in both Celis and Ormonde, the officers had no information about the presence of dangerous individuals in the house. “[C]ourts have consistently refused to permit this lack of information to support a ‘possibility’ of peril justifying a sweep.” (People v. Ledesma, supra, 106 Cal.App.4th at p. 866.) In contrast, in Ledesma, where the officer’s factual observations prior to conducting a probation search included vehicles parked close to a residence that appeared to be the site of ongoing narcotics activity, the appellate court concluded that these facts created “a reasonable, not simply a theoretical, possibility of the presence of others” and therefore the protective sweep of the probationer’s roommate’s bedroom was lawful. (Id. at p. 866.)
The facts in the present case are closer to the facts in Ledesma. Here, the Fousek residence appeared to be the site of ongoing narcotics activity, based upon the probation search revealing that Patrick had recently used methamphetamine and was hiding a large quantity of cold medication containing pseudoephedrine. The probation officers were also informed that defendant, Patrick’s twin brother, inhabited the locked bedroom. Moreover, while Patrick, his father Don, and Patrick’s son had made their presence known to the probation officers, defendant had not appeared.
We therefore determine that the protective sweep of defendant’s locked bedroom by the probation officers while they were lawfully in the backyard was justified because there were “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 [scene].” (Buie, supra, 494 U.S. at p. 334; Celis, supra, 33 Cal.4th at p. 677.)
For these reasons, we conclude that the evidence presented to the magistrate in Detective Sanders’ search warrant affidavit regarding the officers’ observations of methamphetamine manufacturing in defendant’s bedroom were lawfully obtained and sufficient to support the magistrate’s finding of probable cause to believe that evidence of a crime would be found in the Fousek residence. (Buie, supra, 494 U.S. at p. 333; Celis, supra, 33 Cal.4th at p. 677.)
Alternatively, even if we were to assume that the evidence used to support the search warrant was illegally obtained and the search warrant was invalid on that ground, we determine that the motion to quash the search warrant was properly denied on the grounds of the good faith exception to the exclusionary rule, as discussed below.
D. Does the Good Faith Exception Apply?
In United States v. Leon, supra, 468 U.S. 897 (Leon), the United States Supreme Court ruled that “the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” (Id. at p. 900.) The officer’s reliance must be “objectively reasonable.” (Id. at p. 926.) Reliance is not objectively reasonable where the affidavit was “ ‘so lacking in indicia of probable cause’ ” that it would be “ ‘entirely unreasonable’ ” for an officer to believe such cause existed. (Id. at p. 923.)
The relevant inquiry is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” (Leon, supra, 468 U.S.. at p. 922, fn. 23.) Regarding the search warrant affidavit, the question is “whether a reasonable and well-trained officer ‘would have known that his [or her] affidavit failed to establish probable cause and that he [or she] should not have applied for the warrant.’ [Citation.]” (People v. Camarella (1991) 54 Cal.3d 592, 605-606 (Camarella).)
In Camarella, an anonymous informant called a deputy sheriff to report that the defendant was selling cocaine. The informant had purchased cocaine from the defendant in the past, and one of her relatives had recently purchased cocaine from the defendant. The informant provided the name of the bar where the defendant worked and described his residence as located near a specific golf course. Before preparing a search warrant affidavit, the deputy sheriff performed an additional investigation in which he discovered that a confidential informant had previously provided similar information about the defendant. The deputy sheriff also discovered that the defendant had a previous arrest for possession of cocaine, and that at the time of that arrest the defendant had records of controlled substance sales that indicated he was selling cocaine. He confirmed that the defendant worked at the named bar and that the defendant lived near the specified golf course. (Camarella, supra, 54 Cal.3d at pp. 598-599.) The results of the deputy sheriff’s investigation were included in the search warrant affidavit, which was submitted to a deputy district attorney in draft form. After the deputy district attorney approved the search warrant affidavit, it was submitted to a local magistrate who found probable cause and issued a search warrant. (Id. at p. 597.)
On the facts before it, the Camarella court upheld the search because the court concluded that “a well-trained officer reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause. [Citations.]” (Camarella, supra, 54 Cal.3d at p. 606.) The court determined that “[i]t is plain from the affidavit that [the deputy] conducted more than a mere ‘bare bones’ investigation [citations]. He obtained substantial corroborating information that, although stale, was sufficient to make the probable cause determination a close question for any objectively reasonable and well-trained officer, and, indeed, for reasonable judicial officers as well [citation]. [The deputy] thereafter submitted the affidavit to a deputy district attorney, who approved it. Under these circumstances, we conclude [the deputy] acted reasonably when he took this affidavit to a judicial officer for determination. His subsequent reliance on the warrant that was issued was thus objectively reasonable under Leon, and suppression of the evidence is not required.” (Id. at pp. 606-607.)
The California Supreme Court has also instructed that “in determining whether the good faith exception applies, ‘[i]t is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination.’ [Citation.]” (People v. Willis (2002) 28 Cal.4th 22, 31.) “Thus, courts must determine ‘on a case-by-case basis’ whether the circumstances of an invalid search pursuant to a warrant require the exclusionary rule’s application. [Citation.]” (Id. at p. 32.)
There are two questions in the present case that must be answered in order to determine whether the good faith exception applies. The first question is whether Officer Palado and Officer Sarmiento acted reasonably when they provided Detective Sanders with information regarding their observations of defendant’s locked bedroom that was material to Detective Sanders’s probable cause determination. (People v. Willis, supra, 28 Cal.4th at p. 31.) We determine that Officer Palado and Officer Sarmiento acted reasonably because a reasonable well-trained officer could have believed that (1) the officer’s presence in the backyard was authorized pursuant to Patrick’s probation search condition; and (2) a protective sweep of defendant’s locked bedroom was justified since, as we have discussed, there were articulable facts (the presence of a large amount of cold medication, Patrick’s admission that he had used methamphetamine, and a locked bedroom over which defendant exercised sole control), and rational inferences from those facts (defendant could be hiding in the locked bedroom, from which he could launch an attack, in a house with narcotics activity) that would cause a reasonable suspicion that the locked bedroom harbored an individual who posed a danger to the officers and others at the scene. (Buie, supra, 494 U.S. at p. 333; Celis, supra, 33 Cal.4th at p. 677.)
The second question is whether Detective Sanders acted reasonably when he took his search warrant affidavit to a magistrate and subsequently executed the search warrant. We believe that he did. Like the deputy sheriff in Camarella, Detective Sanders obtained substantial corroborating information that was sufficient for any objectively reasonable and well-trained officer to make the probable cause determination. After learning from Officer Palado and Officer Sarmiento that their visual search of defendant’s locked bedroom during the protective sweep had revealed a chemical odor and items that were consistent with a clandestine methamphetamine lab, Detective Sanders conducted his own investigation. He discovered a chemical odor emanating from defendant’s bedroom and observed various items in the bedroom (including a propane blowtorch, a one-gallon jug of muriatic acid, a one-gallon metal chemical container, and a glass coffee carafe with white residue). As a result of his investigation, Detective Sanders corroborated the probation officers’ findings and also their suspicion that the chemical smell and the items in defendant’s bedroom indicated the presence of a clandestine methamphetamine lab.
Under these circumstances, we conclude, pursuant to the California Supreme Court’s decision in Camarella, that Detective Sanders acted reasonably when he took his affidavit to a judicial officer for a probable cause determination. (Camarella, supra, 54 Cal.3d at p. 606.) Detective Sanders’s subsequent reliance on the warrant that the neutral magistrate had issued was thus objectively reasonable under Leon, and suppression of the evidence is not required. (Camarella, supra, 54 Cal.3d at pp. 606-607.)
Having reached this conclusion, we need not address defendant’s alternative contentions that (1) the plain view doctrine did not apply to validate the search warrant, because the probation officers viewed defendant’s bedroom from an illegal vantage point; and (2) the plain smell doctrine did not apply because it was the officers’ visual observations, not the strong chemical odor emanating from defendant’s bedroom, that formed the basis for the search warrant application. We also need not address the People’s contention that defendant’s suppression motion was properly denied pursuant to the inevitable discovery doctrine.
IV. DISPOSITION
The judgment is affirmed.
I CONCUR: MIHARA, J.
McAdams, J., concurring.
On the basis of the good faith exception set forth in United States v. Leon (1984) 468 U.S. 897 and People v. Camarella (1991) 54 Cal.3d 592 only, I concur in the judgment.