Opinion
F069863
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JORGE ARTURO MENDOZA, Defendant and Appellant.
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRL011603)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Judge. Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Jorge Arturo Mendoza pleaded no contest to corporal injury of a cohabitant (Pen. Code, § 273.5, subd. (a); count 1), felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), possession of ammunition (§ 30305, subd. (a)(1); count 3), and possession of a short-barreled rifle or shotgun (§ 33215; count 4). He was sentenced to a term of three years eight months in prison. On appeal, defendant challenges the trial court's denial of his section 1538.5 motion to suppress on the basis that a protective sweep performed by law enforcement officers of his residence was not supported by reasonable suspicion. We agree and will reverse the judgment and remand the matter for further proceedings.
All further statutory citations are to the Penal Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The following facts are derived from the reporter's transcript of the June 6, 2014, hearing on defendant's motion to suppress.
All dates are in 2014 unless otherwise indicated.
On February 22 at approximately 12:22 a.m., Los Banos Police Sergeant Justin Melden was dispatched in response to a call reporting a domestic disturbance. The caller reported a female subject had sustained some type of injury to her face. It had also been reported the suspect had a firearm.
When police arrived, the male suspect and the female victim were not present. The victim's mother told police they had returned to their home on Friguglietti Street. She also told police the victim, Vicky Navarro, had either been taken against her will by the male subject, defendant, or her daughter had willingly accompanied him.
Sergeant Melden called Navarro using her mother's cell phone. Navarro told Melden the incident was only a verbal argument. She made no statements about being forced to go to the Friguglietti residence against her will. Sergeant Melden could hear a boisterous, rambunctious male in the background during the call. He told Navarro that she and defendant should walk out of their residence with their hands in the air.
When Sergeant Melden arrived at the Friguglietti residence, defendant had already been handcuffed and was seated on a curb in the front of the home. Navarro was on the side of the garage speaking to officers. Defendant was yelling and cursing, acting aggressive, hostile, and argumentative.
Navarro told Sergeant Melden she wanted to be removed from the scene because she was fearful of defendant and asked the police to make it look like she was arrested. She also told Sergeant Melden there was someone else inside the residence. When police checked the front door, they discovered it was locked. Defendant told Sergeant Melden he had locked the front door of the residence because he did not want officers inside the house. He denied anyone else was inside.
At the suppression hearing, Navarro denied telling Sergeant Melden anyone else was inside the home.
When Sergeant Melden knocked on the front door, a male subject inside the house reluctantly responded. The male came out after officers announced they were going to enter the residence. Sergeant Melden "[became] concerned there [were] additional persons inside, or possibly somebody in need of assistance."
Based on the facts the lights were on inside the residence, the male subject was reluctant to come outside of the home, and defendant falsely told police no one else was inside the home, Melden decided to conduct a protective sweep of the residence. According to Melden, "oftentimes people on scene aren't always honest. People on scene, especially argumentative subjects, are not forthcoming with their information [and] there's a potential for hazard to officers at that point." The fact defendant was "deceptive of the presence of others inside of the house ... coupled with the fact that there was mention of [a] firearm and that [the victim was] taken from one place to another or potentially taken against [her] will ... [presented a] grave concern there was still [a] potential threat to officers on scene ...."
During the sweep, Sergeant Melden observed contraband in plain view.
Postarrest Proceedings
On February 26th, defendant was charged by complaint.
On May 14th, the trial court began a joint preliminary hearing and hearing on a section 1538.5 motion to suppress filed by defendant. Before the court issued a ruling on the suppression motion, the People moved to dismiss the case. The People's motion was granted.
On May 16th, the People filed a new criminal complaint alleging the same violations as previously charged.
On May 28th, the court conducted a preliminary hearing and found sufficient cause to hold defendant to answer on all counts except on the charge of attempted battery on a peace officer. At the preliminary hearing, shortly after the court concluded defendant would be held to answer on the charges, trial counsel asked the court if he could present a suppression motion based on the documents previously filed in the dismissed case without refiling them. The trial court agreed, and the People so stipulated, provided they received notice so they could respond to the motion.
On June 6th, the trial court heard the suppression motion.
On June 18th, the People filed the information. Later that same day, the trial court issued its ruling denying defendant's motion to suppress. The court found significant the fact police officers were positioned in front of the home, a dangerous location, Sergeant Melden's testimony that Navarro told him someone else was inside the home, the firearm reported was not yet recovered, and the fact that a third individual did, in fact, eventually emerge from the residence. The court stated:
"[B]ased upon the person who ran out of the house, the third person, ... there may have been indeed other people, who knows how many, in the
house and it appears ... the victim was not being truthful when she said that there was one person or that there were no persons, we don't know which. All of those things, and the inferences from them, would give reasonable peace officers cause to be concerned about whether there was someone else in the house with a firearm."
That same day, defendant waived arraignment on the information and entered a plea of no contest. The court sentenced defendant to three years eight months in state prison.
On August 1st, defendant filed a notice of appeal and request for certificate of probable cause.
On March 11, 2015, defendant filed his opening brief with this court. The Attorney General subsequently filed a motion to dismiss, contending the suppression motion issue had not been adequately preserved for appellate review. After granting defendant leave to file a response to the Attorney General's motion and considering the parties' arguments, this court denied the motion.
ANALYSIS
On appeal, defendant contends the trial court improperly denied his motion to suppress evidence pursuant to section 1538.5. He specifically contends the search of his residence was not justified as a protective sweep or under the exigent circumstances requirement. For the reasons discussed below, we conclude defendant preserved the issue for appellate review. We further conclude the protective sweep was not supported by reasonable suspicion.
I. Defendant Preserved His Claim for Appellate Review
The Attorney General argues defendant's challenge to the trial court's denial of his motion to suppress was not preserved for appeal because defendant failed to renew his motion in the superior court. The Attorney General specifically claims the filing of the information transfers jurisdiction from the municipal court to the superior court, and because defendant's suppression motion was not renewed once the information was filed, his claim is not reviewable on appeal. We disagree.
Discussion
Section 1538.5, subdivision (m) provides in relevant part:
"A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." (Italics added.)
In People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal), our Supreme Court held the phrase "at some stage of the proceedings" means the proceedings in the superior court, rather than the municipal court. Thus, to appeal a ruling on a motion to suppress following a no contest or guilty plea requires the motion to have been brought in the superior court. (Id. at pp. 896-897.)
Lilienthal was decided prior to the passage and enactment of Proposition 220, a measure the electorate passed in June 1998 permitting voluntary unification of municipal and superior courts. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 763.) However, the Lilienthal rule continues to apply even after unification. (People v. Richardson (2007) 156 Cal.App.4th 574, 586 (Richardson); People v. Garrido (2005) 127 Cal.App.4th 359, 364 (Garrido) ["The unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court"].)
The Third District Court of Appeal examined application of the Lilienthal rule in a postunification criminal proceeding in Richardson, supra, 156 Cal.App.4th 574. There, a superior court judge, sitting as a magistrate, denied the defendant's suppression motion prior to the defendant's preliminary hearing. Before the magistrate could proceed with the preliminary hearing, the defendant pleaded guilty under section 859a and agreed to immediate sentencing. (Id. at pp. 581-582.)
On appeal, the defendant challenged the trial court's denial of his suppression motion. (Richardson, supra, 156 Cal.App.4th at p. 582.) After examining the parameters of a magistrate's role, the rationale underlying the Lilienthal rule, and the history of the Lilienthal rule post-court unification, the Richardson court held "the Lilienthal rule continues to apply even in the wake of trial court unification." (Richardson, at p. 589.) The court explained, "[The Lilienthal] rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges—a distinction that remains valid even following unification." (Ibid.) The Richardson court further held the rule applied even though a superior court judge acting in the role of magistrate denied Richardson's suppression motion. According to the court, "the Lilienthal rule requires a defendant to raise the search and seizure before a superior court judge acting as a superior court judge to preserve that issue for appellate review." (Id. at p. 591.)
Section 859a authorizes a magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. Rather than having the superior court judge certify the case to himself, the parties agreed to proceed with immediate sentencing by the judge. (Richardson, supra, 156 Cal.App.4th at p. 590.) By electing to be sentenced in this manner, defendant forfeited his right under section 859c to have another judge review the earlier ruling on his suppression motion. (§ 859c ["Procedures under this code that provide for superior court review of a challenged ruling or order made by a superior court judge or a magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order, unless agreed to by the parties."].)
The superior court judge acted as a magistrate when he decided the defendant's motion to suppress before the preliminary hearing, but he acted as a superior court judge by sentencing the defendant. (Richardson, supra, 156 Cal.App.4th at p. 590.) The Richardson court held the defendant could not rely on the fact the same judge was both the magistrate and superior court judge to justify deviating from the Lilienthal rule. (Richardson, at p. 594.)
Here, unlike Richardson, defendant's motion to suppress was filed after his preliminary examination hearing. Defendant was held to answer on the charges, his motion to suppress was deemed filed by stipulation of the parties, the motion was heard by the court, the People filed the information, and then the court issued its ruling denying defendant's motion. In order to take immediate advantage of a court-indicated sentence, defendant waived arraignment on the information and pleaded no contest to the charges against him.
It is well-settled that a superior court judge sits as a magistrate when he or she presides at a preliminary hearing. (Richardson, supra, 156 Cal.App.4th at p. 584.) What the parties disagree upon here is precisely when the judge assumed his responsibilities as a superior court judge, rather than as a magistrate. If the judge sat as a magistrate until the information was filed, defendant was required to renew his motion to suppress, because the suppression motion never came before a superior court judge acting as a superior court judge. On the other hand, if the judge sat as a superior court judge when he heard defendant's suppression motion, then defendant's motion did not have to be renewed because it was heard by a superior court judge acting in that capacity.
Relying on Garrido, supra, 127 Cal.App.4th at page 364, the Attorney General asserts that in a post-unification proceeding, a matter is not "'at some stage of the proceedings prior to conviction'" until an information is filed in the superior court. Garrido does not suggest the filing of the information is the point at which a judge begins to act as a superior court judge rather than a magistrate. Garrido concluded only that "[t]he unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court." (Garrido, at p. 364.) Nonetheless, there is support for the Attorney General's assertion. (See People v. Smith (1986) 187 Cal.App.3d 1222, 1224 [timely filing of a valid information gives the superior court jurisdiction to try an accused]; see also Richardson, supra, 156 Cal.App.4th at p. 590 ["for statute of limitations purposes, prosecution of a felony is commenced when (among other things) '[a]n indictment or information is filed' or '[a] case is certified to the superior court'"].)
To conclude the filing of the information was the triggering point here, however, is illogical in light of the nature of the suppression hearing held by the trial court. In a felony case initiated by complaint, section 1538.5 allows motions to suppress to be made: (1) "at the preliminary hearing" (§ 1538.5, subd. (f)); (2) "at a special hearing" "prior to trial" when "the defendant was held to answer at the preliminary hearing" (id., subd. (i)); and (3) "during the course of trial" when "opportunity for th[e] motion did not exist or the defendant was not aware of the grounds for the motion" "prior to the trial" (id., subd. (h)). Under the second option, section 1538.5, subdivision (i) permits a defendant who has been held to answer at the preliminary hearing to "renew or make the motion [to suppress] at a special hearing relating to the validity of the search or seizure." The special hearing must occur before trial "and at least 10 court days after notice to the people." (§ 1538.5, subd. (i).) Defendant contends this was the nature of the hearing conducted by the trial court.
Although his motion was deemed filed shortly after the preliminary hearing, the record supports the inference the trial court heard defendant's suppression motion as if it were made at a special hearing. Defendant's suppression motion could not be heard at the preliminary hearing because defense counsel did not provide the People with a five-day notice of the motion, as is required by section 1538.5, subdivision (f)(2). A lengthy colloquy occurred between the parties and the trial court, manifesting an understanding the suppression motion would be heard at a subsequent hearing.
The court raised the issue of the 10-day notice requirement under section 1538.5, subdivision (i) when defendant's trial counsel asked that the suppression motion be heard at the earliest opportunity: "Because the preliminary examination is now complete, I think the ten-day notice requirement is still—that it now kicks in. ... I think now we have a ten-day notice since it's post preliminary examination." The People agreed to waive the 10-day requirement so the motion could be heard by June 6th. Thus, the parties understood the original suppression motion would be deemed refiled, the People would be given formal notice of the motion, although the 10-day requirement was waived, and the motion would be heard at a "special hearing."
A special hearing occurs before a judge acting as a superior court judge. This is because after a special hearing is held, any review of a defendant's suppression motion may only be raised upon a showing of good cause at trial, or prior to trial by an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. (§ 1538.5, subd. (i); Madril v. Superior Court (1975) 15 Cal.3d 73, 77 ["determination of a [section] 1538.5 motion at a special hearing in the superior court ... deprives that court of jurisdiction to reconsider the matter"].) Because the trial court has no jurisdiction to entertain a defendant's motion after a special hearing, a special hearing must therefore occur before a superior court judge acting in that capacity.
Section 1538.5, subdivision (i): "[T]he defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. ... If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. ... After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing."
This conclusion is also supported by the plain language of subdivision (i) of section 1538.5, which sets forth when a superior court judge may make factual findings at the special hearing. The findings made by a magistrate at a preliminary hearing are "'binding ... as to evidence or property not affected by evidence presented at the special hearing.'" (People v. Bishop (1993) 14 Cal.App.4th 203, 209, quoting § 1538.5, subd. (i).) However, "'Where additional evidence is presented, the findings of the magistrate, to the extent they are affected by the additional evidence, are not binding on the superior court.'" (Ibid.) Thus, the plain language of section 1538.5 makes clear that a special hearing occurs before a superior court judge.
While a special hearing did not actually occur here because the suppression hearing occurred before the information was filed, we conclude the judge was, nonetheless, acting as a superior court judge at defendant's suppression hearing. At the hearing, the judge heard the testimony of witnesses, including Navarro and Sergeant Melden, and made findings of fact based on evidence not introduced at the preliminary hearing. We fail to see why the filing of the information—which is within control of the People and did not occur until several weeks after the preliminary hearing—should control. Rather than waiting for the People to file the information, the judge here was entitled to move seamlessly from the role of the magistrate to the role of a superior court judge to conduct the post-preliminary examination suppression hearing.
As Richardson explained, the reason for why only proceedings in the superior court must be considered "some stage of the proceedings prior to conviction" under section 1538.5, subdivision (m) is that "'it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention.'" (Richardson, supra, 156 Cal.App.4th at p. 583.) The suppression issue here was, in fact, called to the superior court's attention. Defendant's suppression motion is therefore reviewable on appeal.
Because the suppression hearing occurred after defendant's preliminary examination hearing, the Attorney General is correct that this court's review is limited to evidence adduced at the June 6th suppression hearing. Section 1538.5, subdivision (i) provides, "evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing." We note the parties did object to the evidence presented at the June 6th hearing.
II. The Protective Sweep Was Not Justified by Reasonable Suspicion
The standard of review of a trial court's ruling on a motion to suppress is governed by well-established principles. (People v. Ormonde (2006) 143 Cal.App.4th 282, 290 (Ormonde).) When there is no controversy concerning the underlying facts, the only issue is whether the law, as applied to the facts, was violated. (People v. Werner (2012) 207 Cal.App.4th 1195, 1203 (Werner).) Thus, we defer to the trial court's factual findings and independently apply the requisite legal standard to the facts presented. (People v. Celis (2004) 33 Cal.4th 667, 679 (Celis).)
The Fourth Amendment to the federal Constitution and our state Constitution prohibit unreasonable searches and seizures. (Cal. Const., art. I, § 13; Maryland v. Buie (1990) 494 U.S. 325, 331 (Buie).) When determining reasonableness, a balance must be struck between the intrusion on an individual's Fourth Amendment rights and promoting legitimate governmental interests. A search of a home, for example, is generally unreasonable without a warrant supported by probable cause. Nevertheless, because of the need to balance these competing interests, there are well-delineated exceptions where neither probable cause nor a warrant is required. (Buie, at p. 331.) One such exception is the protective sweep.
A protective sweep is limited to a cursory visual inspection of spaces "where a person may be found." (Buie, supra, 494 U.S. at p. 335.) The purpose of the protective sweep is to protect officers from an immediate risk of harm at the site of an arrest. (Id. at p. 333 [analogizing the safety concerns of a protective sweep to those associated with a frisk as established in Terry v. Ohio (1968) 392 U.S. 1, or a search of a car for weapons in Michigan v. Long (1983) 463 U.S. 1032].) "[A]n in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings." (Ibid.)
A protective sweep does not require probable cause, but is justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person. (Celis, supra, 33 Cal.4th at p. 678.) However, a protective sweep cannot be based on an inchoate and unparticularized suspicion or a hunch. (Buie, supra, 494 U.S. at p. 332; Celis, supra, at p. 678.) "Where an officer has no information about the presence of dangerous individuals, ... courts have consistently refused to permit this lack of information to support a 'possibility' of peril justifying a sweep." (People v. Ledesma (2003) 106 Cal.App.4th 857, 866.) The belief that an additional person might be present is insufficient to justify a protective sweep under Buie. (U.S. v. Sunkett (N.D.Ga. 2000) 95 F.Supp.2d 1367, 1372, 1380 [a protective sweep was unreasonable where officers had knowledge weapons might be in a home but no reason to believe any other person was present].)
In Buie, the defendant and another man robbed a business. One of the robbers was wearing a red jogging suit. Police obtained an arrest warrant for the defendant and executed it at his house. At the defendant's home, one officer shouted into the basement for everyone to come up. When the defendant did so, he was arrested. Another officer subsequently entered the basement "'in case there was someone else' down there." (Buie, supra, 494 U.S. at p. 328.) When he entered, the officer saw a red jogging suit in plain view. (Ibid.)
Charged with robbery, the defendant moved to suppress the jogging suit. The decision was appealed to the United States Supreme Court. The court explained that as incident to an 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." (Buie, supra, 494 U.S. at p. 334.) Beyond that, an inspection undertaken outside the immediate area of the arrest must be supported by "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." (Ibid.)
The court remanded the case to the Maryland Court of Appeals to reconsider whether the prosecution's evidence at the suppression hearing was sufficient to justify the officer's entry into the basement as a "protective sweep" under the standard articulated in Buie. (Buie, supra, 494 U.S. at p. 337.) The Maryland Court of Appeals concluded the protective sweep was justified by the officer's reasonable belief the defendant's accomplice might have been hiding in the basement, and that the accomplice might have been armed. (Buie v. State (Md.Ct.App. 1990) 320 Md. 696.) Officers could reasonably suspect Buie and his accomplice came to the house 48 hours after the robbery, and could also infer both might be in the basement with the gun used in the robbery. (Id. at pp. 703-704.)
In Celis, supra, 33 Cal.4th at page 672, officers detained the defendant and his accomplice outside his residence, which had been under surveillance for drug trafficking. The officers then entered the home to conduct a protective sweep based solely on one-day-old surveillance observations showing the defendant's wife and a male juvenile in the house. Officers found a box, large enough to hold a person, which contained cocaine. (Ibid.) Our Supreme Court held the facts known to the officers when they entered the house fell short of a reasonable suspicion necessary to justify the sweep. (Id. at pp. 679-680.) The court reasoned that officers had no knowledge anyone was inside the home on the day the defendant was detained, there was no indication the suspects were armed, and the officers had no indication the house harbored a dangerous person. (Id. at p. 679.)
In Ormonde, supra, 143 Cal.App.4th at page 287, officers responding to a domestic violence call detained a suspect outside the defendant's apartment and conducted a protective sweep of the apartment. Although the officer had no reason to believe anyone was in the apartment, he conducted a sweep to ensure the safety of the officers based on a general concern about the dangerous nature of domestic violence calls. (Id. at p. 294.) The court held that a general apprehension of danger, based solely on the nature of the call, was not enough to amount to a reasonable suspicion that a potentially dangerous person was inside the apartment. (Id. at p. 295; see Werner, supra, 207 Cal.App.4th at p. 1209 [a mere abstract possibility a dangerous person might be present is not enough to justify a protective sweep].)
Here, as in Celis, the facts known to officers prior to the protective sweep "fell short of what Buie requires, ... a reasonable suspicion that the area to be swept harbor[ed] a person posing a danger to officer safety." (Celis, supra, 33 Cal.4th at pp. 679-680.) While officers had information defendant was possibly armed, unlike the officers in Celis, Buie requires "a reasonable suspicion both that another person is in the premises and that that person is dangerous." (Werner, supra, 207 Cal.App.4th at p. 1206.)
Sergeant Melden failed to articulate facts that, taken together with the rational inferences from those facts, would warrant a reasonable officer in believing the area to be swept harbored a dangerous person. While Sergeant Melden stated he was initially unsure Navarro was the victim, he also testified Navarro and defendant were outside the home when he arrived on scene. Thus, both the victim and defendant, the only individuals he was aware of involved in the disturbance, were detained before the protective sweep was conducted.
Sergeant Melden stated "[he] had a belief there was an additional person inside [the residence], due to [Navarro's] statement." Navarro apparently told Sergeant Melden "there was somebody inside the house." (Italics added.) Defense counsel clarified at the suppression hearing that Navarro used the term "somebody" in the singular sense, implying she had stated only one person was inside. Once the third subject came out of the home, it is unclear how Sergeant Melden's belief anyone else could be inside the home could be based on more than a hunch, speculation, or a mere abstract possibility. The fact defendant was dishonest about the presence of another person inside the home, without more, does not justify the inference that yet another individual could be inside the home.
The concurring and dissenting opinion notes the fact Melden had experience with argumentative subjects not being forthcoming with information, particularly with respect to the presence of additional persons inside a home. (Conc. & dis. opn., post, at pp. 2-3.) Melden testified he had "experience with investigations that have uncovered multiple subjects inside. And although [a subject] may say one ... or two people are present, the house has 15 inside." According to Melden, "It's a continuing practice that I've ... gone through personally and experienced in my ... career that has made me want to go make sure that it is secure." Taken to its logical conclusion, however, this would make every home susceptible to a protective sweep based on the subjective experience of one officer. --------
Further, although Sergeant Melden expressed concern an attack could have been launched against officers as they were standing in front of the home, we emphasize that a general apprehension of danger is insufficient to establish such reasonable suspicion. (Ormonde, supra, 143 Cal.App.4th at p. 295.) We conclude the search of defendant's residence was not justified under the protective sweep doctrine, and all evidence seized as a result of the unlawful search must be suppressed.
DISPOSITION
The judgment is reversed and the cause is remanded to the superior court with directions to vacate the order denying the motion to suppress and enter a new order granting the motion, and to permit defendant to withdraw his guilty plea, should he decide to do so.
/s/_________
PEÑA, J. I CONCUR: /s/_________
SMITH, J. DETJEN, Acting P.J., Concurring and Dissenting.
I concur in my colleagues' conclusion Jorge Arturo Mendoza (defendant) preserved his claim for appellate review. I respectfully dissent, however, from their analysis of defendant's challenge to the constitutionality of the protective sweep of his residence. While I agree with the majority's statement of the law, I conclude the law enforcement officers here reasonably suspected defendant's residence harbored a dangerous person.
"A protective sweep [of a residence] can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person. [Citation.]" (People v. Celis (2004) 33 Cal.4th 667, 678, citing Maryland v. Buie (1990) 494 U.S. 325, 327.) Thus, while an officer's hunch or inchoate suspicion is insufficient to justify such a sweep, absolute knowledge of a dangerous person's presence, or even probable cause to believe such a person is present, is not required. (Buie, supra, at pp. 327, 332; Celis, supra, at p. 678.) Rather, there must be " 'articulable facts' considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety. [Citation.]" (Celis, supra, at pp. 679-680, citing Buie, supra, at pp. 327, 334.) The requisite reasonable suspicion "is evaluated on a case-by-case basis by looking at the ' "totality of the circumstances" ' to ascertain whether the police had or whether the officer has 'a "particularized and objective basis" ' for his or her suspicion. [Citation.]" (People v. Werner (2012) 207 Cal.App.4th 1195, 1206.) "[T]he officer's training and experience can be critical in translating observations into a reasonable conclusion." (People v. Ledesma (2003) 106 Cal.App.4th 857, 866.)
Los Banos police sergeant Melden was dispatched to a "physical domestic" at "about 12:22 a.m." on February 22, 2014. During his investigation, he received information defendant had a firearm, was violent enough to have caused visible injury to his victim, and may have taken the victim against her will. When Melden contacted the victim by cell phone, he could hear defendant in the background, and described defendant as being "boisterous, rambunctious," and "kind of argumentative." At this point the victim told Melden the argument was only verbal.
When Melden arrived at defendant's house, defendant and victim were outside, in contrast to a normal domestic violence call, in which responding officers contact the parties inside the home. Defendant, who was sitting on the curb, was aggressive, hostile, and argumentative. He was cursing and laughing at the officers' presence. Asked if anyone else was inside the house, defendant said no. However, the victim said someone was inside the house. Defendant told Melden he had shut the door and locked it because, "I don't want you in my house." The victim asked officers to remove her from the scene and make it look like she was being arrested, because she was afraid of defendant.
Approximately six officers were on the scene, and they were occupied by the two subjects outside. Defendant's aggressive, loud demeanor was diverting the officers' attention, and Melden did not consider the scene to be safe. Based on the victim's statement somebody was inside, Melden believed the residence harbored an additional person or persons. He did not request a search warrant because, in his experience, the process to obtain one — even telephonically — took roughly an hour, and, at that point, "the scene was still very much active."
Melden banged on the front door several times. Only after officers announced they were going to enter did another male reluctantly exit the residence. All three people, of whom Melden was aware with certainty, were outside. However, the lights inside were on, defendant had secured the residence against police entry when he and the victim had exited it, and the second male initially would not come out. Melden had prior investigations in which he was told one or two people were inside a house, only to discover there were several more. He also had experience with people on a scene — especially argumentative subjects — not being forthcoming with information. He had seen video of officers "shot . . . through the front of residences," exactly where his officers were. In addition, he was concerned by the victim's desire to be removed from the scene because she was afraid, and the possible presence of a firearm.
Given the totality of the circumstances known to Melden, I conclude — as did the court that heard the evidence — the protective sweep was justified by the requisite reasonable suspicion the house harbored a person posing a danger to the officers. This is so — and the sweep was constitutionally valid — despite the fact defendant was already outside. (See People v. Werner, supra, 207 Cal.App.4th at p. 1206; People v. Maier (1991) 226 Cal.App.3d 1670, 1675.)
I would uphold the trial court's denial of the suppression motion and affirm the judgment.
/s/_________
DETJEN, Acting P.J.