PEOPLE v. IKEDA (Abated on death of defendant; no oral argument to be heard.)Appellant’s Petition for ReviewCal.March 11, 2013mE ep BRfey ROP ge ow a C o ah. IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, )' i) Plaintiff and Respondent, ) ) N) V. ) ) Ct.App. 2/6 B238600 ARNOLD IKEDA ) ) Ventura County Defendantand Petitioner. ) Super. Ct. No. 2011007697 ) SUPREME COURT FILED PETITION FOR REVIEW OF A PUBLISHED OPINION 8 ee Be MAR 11 2033 Seeking review ofan order Frank A. McGuire Clerk denying a motion to suppress by the Deputy Honorable Ronald Purnell and a motionto set aside the Information by the Honorable Charles Campbell STEPHENP. LIPSON,Public Defender MICHAEL C. MCMAHON(SBN 71909), Chief Deputy Public Defender State Bar Certified Specialist - Criminal Law andAppellate Law michael.mcmahon@ventura.org (805) 477-7114 *CYNTHIA ELLINGTON (SBN 163502), Senior Deputy Public Defender State Bar Certified Specialist - Criminal Law cynthia.ellington@ventura.org (805) 654-3040 800 South Victoria Ave. Ventura, California 93009 Attorneysfor petitioner, Arnold Ikeda IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, V. ARNOLD IKEDA Defendant and Petitioner. S Ct.App. 2/6 B238600 Ventura County Super. Ct. No. 2011007697 N e e e e e e e e e e e e e e e e e e S e ” PETITION FOR REVIEW OF A PUBLISHED OPINION Seeking review of an order denying a motion to suppress by the Honorable Ronald Purnell and a motionto set aside the Information by the Honorable Charles Campbell STEPHENP. LIPSON, Public Defender MICHAEL C. MCMAHON (SBN 71909), Chief Deputy Public Defender State Bar Certified Specialist - Criminal Law and Appellate Law michael.mcmahon@ventura.org (805) 477-7114 *CYNTHIA ELLINGTON (SBN 163502), Senior Deputy Public Defender State Bar Certified Specialist- Criminal Law cynthia.ellington@ventura.org (805) 654-3040 800 South Victoria Ave. Ventura, California 93009 Attorneysfor petitioner, Arnold Ikeda TABLE OF CONTENTS Issue Presented ..........ccssccesscccesceceeesseeceeseeeeseeeeseseeeseaaeeesssseesseeeeeseeenenseneseeneass 1 Necessity Of ROVICW.......:ceccceeescesseereesereesereesessnsessesseesseeensessecseseresseeeneensees 2 Statement of the Case........ccccsssccccccsscesencecessssaeeeesesnneeseeseeessesesesseesseeseeroe 2 Statement ofFacts...sccsuvscsesaessscsessseseesesaeseceuenssacessesesensseseeeeeaesateas 3 ALQUMEDLA...ec eessccenecenneeneeseesssnneceseacesseesssteesseeseeesesuecesresseesereesenessaeessaeenaes 6 I. The Fourth Amendmentrequires more than a mere reasonable suspicion where law enforcementofficers seek to enter a home and conducta protective sweep after the detention of a suspect effectuated outside of his residence. ...c.c.cccescssesesssscssesesessescecsssseeueseseeseeneaeeneaeeneeees 6 II. The law enforcement officers who detained Mr. Ikeda did not have reasonable suspicion to conducta protective sweep inside of his hotel roOM. 00... ceeects eeeerteetseneseetesneeeeenees 10 COnclusiOn.........cccccsscccscceseeccstneeeeeeseeseesneeecessnesssneesseusecesssesessseeesneeseaeesenaeeenaes Certificate of Word Count... ceeccceeeeseeeeesceeesneesesserscssaeeseseeesssssessesensaesenns People v. Ikeda (2d Crim. No. B238600) «0... ssssessesssesesereeeeesAppendix A TABLE OF AUTHORITIES CASES Florida v. Royer, 460 U.S. 491 ciccccscececcssseesseesessesseneseestereeeaereeeetaergeeseneens 9 Katz v. United States (1967) 389 U.S. 347 oo ceesccsseseesseeteesseessneesssnessneees 7 Maryland vy. Buie (1990) 494 U.S. 325 woeecssssussiseesssesssssuseeesseenee 7,8, 11 Maryland v. Pringle (2003) 540 U.S. 366 wesccecerastssesesvensenvessneens 8 Payton v. New York (1980) 445 U.S. 573 ccecccesceseseseeeeeeeeeseeneeeseersesseenes 2,7 People v. Celis (2004) 33 Cal.4th 667 ......scseseeeerhescaceeeeeeseeeeeeeeess passim People v. Russell (2000) 81 Cal.App.4th 102.0... eeeeseeeeeserenseeesennetereraess 9 People v. Werner (2012) 207 Cal.App.4th 1195...esseeeeeeeees 9,12, 13 - Welsh v. Wisconsin (1984) 466 U.S. 740 ..icccecccesesseesneeeneesteeseneeettseetneees 10 CONSTITUTIONS US. Const. . ceccccecesscsccssscccececcsssecesseseeeeeeeeessnaeeeeeeseeneseseasseaeesseanseesensenssnnesennes 7 Ath Amend.........ccccececcescssesseecececcecseseseceeececnaceeeeaaesasaaaucaeaueeseneneneneeeeeea 7, 10, 11 L4th Amend. oo... ccecccsssesssscccesseseeceeesesenseseceeueeseesesesneaaneessenseessseeeeneneesenees 7 Cal. Const., art. 1, §13. .ccccececcccccseecseeeseeeseeecesceseceeeseeeseecsnesseseesenesseeeeseneetey 7 STATUTES AND RULES California Rule of Court, rule 8.500(D)(1) ....... cece eecseesetseseseeseeeseeeeesetenaeenes 2 California Rule of Court, rule 8.500(€) 0... eeeeeeeesseessseeeesseteeseesesseeeeseeeees 1 Health and Safety Code section 11378 .......ccccecseseseeeteeesetseesneseesees 2,3 Health and Safety Code section 11550(a).......csessseseereeeeesteeteteeseteeeneeaeesens 2 Penal Code section 496 ........eeeseeccssesseteeeteeesenneeesceesdeeeeeeeeseaaeeetesnnedeesenseesenen 2 Penal Code section 1538.5 0. .ccccesesseeeeeesseeeseseeesseeesersaeeeesseeeeseeeseesaneesseesees 2 ii IN THE SUPREME COURTOF CALIFORNIA Ventura County Defendantand Petitioner. Super. Ct. No. 2011007697 THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S v. ) ) Ct.App. 2/6 B238600 ARNOLDIKEDA, +) ) ) ) TO THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Defendant and petitioner Arnold Ikeda respectfully petitions for review ofthe published decision of the Court of Appeal for the Second District, Division Six, affirming the decision of the Superior Court. The Court of Appeal decision, whichis attached as Appendix A, wasfiled on January 30, 2013. Petitioner filed a petition for rehearing on February 11, 2013, which was | denied on February 15, 2013. This petition is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED e Is reasonable suspicion sufficient to constitutionally justify the entry into a suspect’s residence in order to conduct a protective sweep, where a suspectis detained outside? NECESSITY OF REVIEW Review is necessary to settle an important question oflaw. (California Rules of Court, rule 8.500(b)(1).) The Court of Appeal opinion herein concludes that reasonable suspicion is sufficient to support officers’ warrantless entry into a suspect’s homeafter detaining the suspectoutside of his home. This holding is not supported by the Fourth Amendmentofthe United States Constitution, which has drawna firm line at the entrance to a house which may not reasonably be crossed without a warrantor exigent circumstances. (Payton v. New York (1980) 445 U.S. 573, 590.) Petitioner therefore respectfully requests review of the Court of Appeal decision. STATEMENTOF THE CASE In a complaint filed on March 4, 2011, the Ventura County District Attorney charged petitioner with violations of Penal Code section 496! (receiving stolen property; count 1); Health and Safety Code section 11378 (possession for sale of a controlled substance; count 2), and Health and Safety Code section 11550, subdivision (a) (being under the influence ofa controlled substance;count 3). (CT 1.) On June 3, 2011, petitioner filed a motion to suppress evidence pursuant to section 1538.5. (CT 13.) The prosecution filed an opposition to the motion to suppress on July 11, 2011. (CT 25.) The motion to suppress was heard at the August 4, 2011 preliminary hearing, and denied by the Honorable Roland N. Purnell. (CT 14.) Petitioner’s motion to suppress and motionto set aside the information rested upon his contention that the items underlying the prosecution were seized during an illegal protective sweep ofthe inside ofhis hotel room, made in conjunction with his detention outside the room. ' Unless otherwise indicated, all future statutory references will be to the Penal Code. On August 15, 2011, the prosecution filed an information, charging petitioner as originally charged in the complaint. (CT 42.) Petitioner pled notguilty to all counts on August 18, 2011. (CT 45.) On September29, 2011, petitioner filed a motion to set aside the information pursuant to section 995. (CT 48.) The prosecution filed an opposition to the motionto set aside the information on October 11, 2011. (CT 59.) On October 25, 2011, the ~ motion was heard and was denied by the Honorable Charles W. Campbell. (CT 77.) On December7, 2011, petitioner withdrew his not guilty plea as to count 2, and pled guilty to possession for sale of a controlled substance in violation of Health and Safety Code section 11378. (CT 78.) On January 6, 2011, petitioner was sentenced by the Honorable Bruce A. Youngto 300 days in the Ventura County Jail, and was released on formal probation for 36 months. (CT 99-100.) Counts 1 and 3 were dismissed. (CT 101.) Petitionerfiled a timely notice of appeal on January 17, 2012. (CT 103.) On January 30, 2012, the Court of Appealfiled its opinion (Appendix A) concludingthat there was noerrorin the denial of either petitioner’s motion to suppress, or petitioner’s motion to set aside the information. Petitioner sought rehearing before the Court of Appeal, which relief was denied on February 15, 2013. STATEMENT OF FACTS In February 2011, Scott Hardy, a Detective with the Ventura County Sheriff's Department, was investigating an allegation ofa stolen laptop computer from Elias Vasquez. (CT 108-09.) During the course of his investigation, Detective Hardy discovered that the computer was equipped with a GPStracking device, andthat an investigator with the company that monitored the GPS device was monitoring the location of the computer, and was able to monitor key strokes and IP addresses (CT 110). The investigator gave Detective Hardy the IP address and the protocoladdress for the computer, and informed Hardythat the IP address belonged to AT&T. (CT 110-11.) Detective Hardy contacted AT&T, who confirmedthat the IP address was AT&T’s, but required a search warrantto release any further information. (CT 111.) Detective Hardy obtained a search warrant, and received information showingthat the laptop had been used on February 21, 2011, at a location of 181 Santa Clara Avenueandthat that the password on the computer had been changed to “Arnold Ikeda.” (CT 111-112.) On Tuesday, March 1, 2011 Detective Hardy contacted the investigator at the company that was monitoring the computer’s GPSlocation. (CT 111-12.) Theinvestigator informed Detective Hardythat the computer was loggedin at a location on Schooner Drive. (CT 111-112.) Detective Hardy then conducted a records check on the name of Arnold Ikeda andlocated a booking photograph, a DMV photograph and address ofpetitioner. (CT 113.) He andhispartner, Detective Kevin Lynch, then droveto the SchoonerDrive address.” (CT 115.) Theyarrivedat around 2:00 p.m. (CT 132.) They did not secure, nor did they attempt to secure, either a search warrant for the room or an arrest warrant for Mr. Ikeda. (CT 132.) Upon Detective Hardy’s arrival at the Schooner Driveaddress, he entered the lobby of the Holiday Express and spoke to the manager. (CT 114.) He provided the manager the name of ArnoldIkeda, and she confirmed that someone by that name was checkedin at the Four Points Sheraton? (CT 114.) Hardy showedher the DMVphotograph ofpetitioner, and she confirmed that she thought it was the same person. (CT 114.) The manager informed * Two separate hotels share the address of 1050 Schooner Drive in Ventura: the Holiday Inn Express, and the Four Points Sheraton. 3 The Holiday Inn Express andthe Four Points Sheraton at the Schooner Drive location use the same computer system. The manager at the Holiday Inn Express confirmed that Mr. Ikeda was checkedinto the Four Points Sheraton. Detective Hardy thatpetitioner was currently checked into room 104, that he had been staying there for several days, and that he had been changing ground floor rooms every day. (CT 114.) She also told him that there was a female whowasassociated with the room, and that there was a key card currently at the desk for that female. (CT 114.) Again, Detective Hardy chose notto secure either a search warrant or an arrest warrant, despite it being the middle of the afternoon on a Tuesday, and despite the less than 5 mile proximity to the courthouse. (CT 132.) Atthe preliminaryhearing, the magistrate was careful to note that judges are available 24 hours a day to review and sign warrants. (PHTp.27, 11. 2-4.) Detective Hardy discussed the information with Detective Lynch, and they then requested a uniformedpatrolto officer cometo the location. (CT 115.) Deputy Johnsonarrived on scene. Theofficers then located room 104. (CT 115.) Detective Hardy and Deputy Johnson approached the front door of the hotel room, and Detective Lynch went aroundthe building to the rear sliding door of the room. (CT 115.) . Detective Hardy listened at the door, and thought he heard “two male subjects” having a conversation inside the room. (CT 115.) He then knocked on the door, and announced he waswith the sheriff's department. (CT 116.) Petitioner responded with “hold on a moment,” but then exited the hotel room throughthe back sliding door. (CT 116.) Detective Lynch informed Deputy Johnsonofpetitioner’s exit, and Deputy Johnson went aroundthe building to assist Detective Lynch. (CT 1 16.) Detective Lynch told petitioner that he wasbeing detained, anddirected him to put his hands behind his back. (CT 117.) Petitioner complied. (CT 117.) Petitioner informed Detective Lynch that there was a BB guninsidethe hotel room. (CT 117.) In the meantime, Detective Hardy remainedat the front door. (CT 116.) After several minutes, Detective Hardy went aroundto the back of the building to see what was going on. (CT 117.) There he saw Deputy Johnson standing with petitioner, who wasin handcuffs in a grassy area away from the room. (CT 117, 130.) Detective Hardy then decided that there may be a “female or somebodyelse inside” the room, despite the female’s card key remainingat the front desk, and proceeded to engage in a “protective sweep” of the room based onthe information that he had gathered by that pointin the investigation (CT 117-118), including: 1. Whenhefirst arrived at the hotel room door, he “thought” he had heard two male subjects inside the room; 2. Petitioner informed Deputy Johnson that there was a BB gun inside the hotel room; 3. There was a female associated with the hotel room, whose key card wascurrently at the front desk of theHolidayInn Express; and 4, Petitioner had changed roomsseveral times within the previous few days, leading the officer to suspect drug transactions may be occurring within the room. Detectives Hardy and Lynch then performeda protective sweep ofthe hotel room. (CT 118.) Deputy Hardy remained inside the one-bedroom, one-bathroom hotel room for 45 minutes to an hour. (CT 119, 136.)* Once inside, the detectives observed in plain view a computerthat matched the description of the stolen laptop, a crystal substance which appearedto be methamphetamine, and related drug paraphernalia. (CT 118-19.) Detective Hardy then exited the room totalk to petitioner, and told Deputy Johnson to remain inside the room. (CT 121.) At that time, Detective Hardy asked the defendant for consent to search the hotel room. (CT 112.) Petitioner agreed. (CT 122.) Detective Hardy then returned to the hotel room and collected the * Approximately 15 minutes into the protective sweep, a female subject arrived at the hotel room and was placed underarrest by Detective Lynch. (CT 135-36.) items he had previously observed in plain view during the protective sweep. (CT 122.) Petitioner was then placed under arrest. (CT 123.) ARGUMENT 1. The Fourth Amendment requires more than a mere reasonable suspicion where law enforcementofficers seek to enter a home and conduct a protective sweep after the detention of a suspect effectuated outside of his residence. _ The Fourth Amendmentto the United States Constitution, made applicable to the states through the 14th 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 ... .” (U.S. Const., 4th Amend.) The California Constitution provides identical protection. (Cal. Const., art. I, § 13.) Warrantless searches inside a homeare presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 586 (hereafter, Payton).) This presumption of unreasonableness may be overcomeby the showingthat one ofthe “specifically established and well-delineated exceptions” to the warrant requirementis present. (People v. Celis (2004) 33 Cal.4th 667, 676 (hereafter, Celis) [quoting Katz v. United States (1967) 389 U.S. 347].) A “protective sweep”of a residence, conductedin orderto protect the safety of police officers or others on scene, is one such exception that may support a search inside a home. (Celis, supra,33 Cal.4th at pp. 676-77.) A protective sweep after law enforcementare already legallyjustifiedfor being inside the home by meansofhaving secured an arrest warrant may be based on reasonable suspicion that the area to be swept harbors a dangerousperson. (Maryland v. Buie (1990) 494 U.S. 325, 337 (hereafter, at times, Buie).) 1. Protective sweeps incident to an arrest inside the home may be based on reasonable suspicion. Anarrest must be supported either by an arrest warrant, or by probable cause. (Celis, supra, 33 Cal.4th at 673.) Probable causeis present when“the facts knowntothe arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (Ibid.) ““The substanceofall definitions of probable cause is a reasonable groundforbeliefof guilt,’ and that belief must be ‘particularized with respect to the personto be ... seized.’” (Jbid., citing Maryland v. Pringle (2003) 540 U.S. 366, 371.) Therefore,when a protective sweep is conducted incidentto a valid arrest, there is necessarily either an arrest warrant that has already been issued by a neutral and detached magistrate, or the presence of probable cause to believe that the arrestee is guilty of having committed a crime. | The Court of Appeal decision here relied on Buiein its proclamation that“[iJt is settled officers may conducta protective sweep of a house whena suspectis arrested outside the house and theofficers have a reasonable articulable suspicion that the house harbors a person who poses a threat to officer safety.” (Opinion page 3.) As noted, the arrest in Buie was effectuated in-home, pursuantto an arrest warrant (Buie, supra, at p. 328; Celis, supra, 33 Cal.4th at p. 677), not outside. The court of appeal appearsto have concluded that Mr. Buie wasarrested outside his homeandofficers subsequently went inside his home to conduct a search of the basement. The Maryland Court of Appeals made a similar error: “The Maryland Court of Appeals was underthe impression that the search took place after ‘Buie was safely outside the house, handcuffed and unarmed.’ 314 Md. 151, 166, 550 A. 2d 79, 86 (1988). All of this suggests that no reasonable suspicion of danger justified the entry into the basement.” (Maryland v. Buie, supra,494 U.S. 325, 338.) The court of appeal in People v. Werner (2012) 207 Cal.App.4th 1195, 1206 (hereafter, Werner) did indicate, however, that an entry into a housefor a protective sweep conducted after an arrest outside the home might be constitutional where the sweep was requiredforthe safety of the officers effectuating the arrest. However, evenin those cases there first necessarily exists either a warrant or probable cause to justify an arrest. > Here, of course, petitioner was only detained andnotarrested until a thorough search ofhis hotel room was conducted. 2. Protective sweeps incident to a detention outside the home are unconstitutional. A detentionofa citizen does not require probable cause, but rather requires merely “‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engagedin that activity.” (Celis, supra, 33 Cal.4th. at p. 674.) The function of an investigative detentionis to permit the officers to diligently pursue a means of “investigation designed to confirm ordispel their suspicions quickly.” (See People v. Russell (2000) 81 | Cal.App.4th 102.) Hence, extending the authority to conduct a warrantless sweep after a detention extends the authority to invade a home before thereis any probable causethat a crime has been committed. As the United States Supreme Court enunciated in Florida y. Royer, 460 U.S. 491, “in the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or °Asstated in appellant’s reply brief, the court in People v. Werner, misstated the high court’s opinion in People v. Celis, supra, 33 Cal Ath 667, 680, in asserting that: “A protective sweepis notlimited to situations immediately following an arrest, but one which may occur in conjunction with a suspect’s detention.” (Werner, supra, 207 Cal.App.4th. at 1206 [Citing dicta in Celis,supra, 33 Cal.4th at 679].) other effects. Nor may police seck to verify their suspicions by meansthat ~ approachthe conditionsof arrest.” (Id. at 499.) Thereis a critical distinction between arrests and detentions outside the home. A detention does not require the probable cause demanded by an arrest. A detention outside of the home does not require the exigency demandedby a detention inside the home. A detention of an individual outside of his home should not authorize mere reasonable suspicion to cross the firm line drawn by the United States Supreme Court in Payton to conducta protective sweep.” Surely the Fourth Amendmentprovides stronger protection. “It is axiomatic that the ‘physical entry of the homeisthe chief evil against which the wording of the Fourth Amendmentis directed.’” (Celis, supra, 33 Cal.4th at p. 676 [citing Welsh v. Wisconsin (1984) 466 U.S. 740, 880].) Although it goes without saying that officers must be protected during the performanceoftheir duties, “[s]ociety’s interest in protecting police officers must .. . be balanced against the constitutionally protected interest of citizens to be free of unreasonable searches and seizures.” (Celis, supra, at p. 680.) Oneofthe oft-cited exigent circumstances justifying a warrantless entry into a homeis “therisk of dangerto the police or to other personsinside or outside the dwelling.” (/d. at p. 676.) This belief that a dangerouspersonis inside the home, however, must be based on probable cause unless the police are already inside the home, in whichcase reasonable suspicion mayprevail in some circumstancesas noted above. (/d.atp. 680.) The Court of Appeal’s decision effectively lowers the standard for entry into a home from probable causeto the much reduced standard of reasonable suspicion whenpolice have no other legal reason for being inside. © Payton v. New York (1980) 445 U.S. 573 [stating “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendmenthas drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not be reasonably crossed without a warrant.”] 10 Petitioner also disagrees with the Court of Appealthat the California Supreme Court in Celis “assumed, without deciding, that the Buie reasonable suspicion standard applied to a detention wherean officer detained defendant outside his house and conducted a protective sweep.” The Celis court found it unnecessary to decide whether probable cause or reasonable suspicion would be required because the officers in Celis failed to meet either standard, nothing that because “the lower standard wasnotsatisfied here,it followsthat the higher standard requiring probable cause wasnot meteither.” (Celis, supra, 33 Cal.4th at p. 680.) In fact, the Celis court expressly acknowledgedthatit was not deciding the propriety of an in-home protective sweep conducted after an out- of-homedetention: “Would that rationale [that in some circumstances, a detention taking place just outside a home may pose an equally serious threat to the arresting officers as one conducted inside the house] also apply when officers enter a home to conduct a protective sweep after lawfully detaining a suspect outside the residence? [Citation.] That is an issue weneed not resolve here because the facts known to the officers when they entered defendant’s house fell short of the reasonable suspicion standard necessary to justify a protective sweep under Buie [citation].” (People v. Celis, supra 33 Cal.4th at p. 679.) The Court of Appeal’s decision unconstitutionally expandsthe police power to make a warrantless entry into a home.It sanctions the circumvention of the warrant requirement of the Fourth Amendment and allows law enforcementto simply surveil a citizen’s residence, waiting for him to exit, and then detaining him based on reasonable suspicion. Theofficer would then be free to make warrantless entry into the suspect’s home so long 11 as she couldarticulate a reasonable suspicion that another person wasinside posing a potential, if hypothetical, danger. The potential for abuse of authority is clear, but most importantly the decision sanctions searches based merely on suspicion. I. The law enforcement officers who detained Mr. Ikeda did not have reasonable suspicion to conduct a protective sweep inside of his hotel room. A protective sweep requires a reasonable suspicion that (1) another personis in the premises; and (2) that person is dangerous. (Werner, supra, 207 Cal.App.4th at p. 1206.) This suspicion must be supported by “articulable facts considered together with the rational inferences drawn from those facts.” (Celis, supra, 33 Cal.4th at p. 379.) | In this case law enforcementofficers did not have sufficient reasonable suspicion from which inferences could be derived justifying a protective sweep. First, the reported criminal conduct wastotally non-violentin nature. Detective Hardy’s suspicions that narcotics activities might be involved did not elevate the investigation to one of a violent crime in progress. Second, Detective Hardy lacked reasonable suspicion that another person was present in the hotel room. Hardy testified at the preliminary hearing that he conducted the protective sweep because he thoughtthat there may be a “female or somebodyelse inside” the room. Asdiscussed, the “articulable facts” were thin, if non-existent: 1. Hebelieved he had heard two male subjects inside the room; 2. There was a female associated with the hotel room,but her key card wascurrently at the front desk of the Holiday Inn Express. 12 In Celis, “while police had information that two other people lived with the defendant, they had no information that anyone wasinside the home when they detained the defendant outside.” Here, no surveillance was conducted and other than what Deputy Hardy thought he heard, the police had no information that anyone was inside the room when they detained the defendant outside. In fact, at the preliminary hearing, Deputy Hardytestified that it was an “unknown”in his mind whether anybody wasinside (PHTp.31, 1. 21) and only that “there could be.” (PHT p. 1.) Further, he articulated no specific facts as to why a person who might possibly be inside posed a danger to police. . The “articulable facts” presented by Deputy Hardy as to why a person inside the room poseda threat to the officers was that petitioner changed groundfloor rooms frequently which “made him wonder”if there were “possible drug transactions going on.” (PHTp. 10, ll. 8-27.) The officers had no plausible information aboutthat possibility, which was only speculation on their part; the investigation involved only a stolen laptop computer. The lynchpin of the court of appeal’s argument seemsto be that petitioner admitted there was a BB guninside the room. As the deputy public defender argued in the trial court, the BB gun did not transmute into a reasonable suspicion that the BB gun was a dangerto police or that a person inside intendedto useit. “The mere abstract possibility that someone dangerous might be inside a residence does not constitute “articulable facts” justifying a protective sweep.” (People v. Werner, supra, 207 Cal.App.4th, 209.) 13 CONCLUSION The undisputed facts in this case reveal that appellant was the subject of an investigative detention for a non-violent crime; he was not near the room after his detention; he was handcuffed, posed no harm and had indicated no one else wasinside the room. Neither the police nor anyoneelse observed anyoneinside the room. By allowing protective sweepsafter a suspect is safely detained well away from his home on the suspicion there may be someoneelse inside the homeposing a danger, the court has carved out a new exception to the warrant requirementbased on police officer “experience and specialized training.” (Opinion, page 4). Asthe court in Werner summed up: “It does not appear to be enough, under Celis, that the police were genuinely apprehensive of danger based on past experience with domestic battery situations or large scale drug operations... . [T]o say that the warrantlessentry into defendant's homein this case wasjustified because of a police officer’s past experiences with domestic violence arrests would be tantamountto creating a domestic violence exception to the warrant requirement. This we cannot do. [Citation.]” (People v. Werner (2012) 207 Cal.App.4th 1195, 1209.) The court here has attempted to carve out an exception based only on hypothetical small scale drug operations that may possibly attend the theft of one laptop computer. For the foregoing reasons, petitioner respectfully requests that Respectfully Submitted, STEPHEN P. FIPSQN, Bublic Deferider By: CYNTHIA ELLINGTON, Senior Deputy Public Defender Attorney for petitioner, ARNOLD IKEDA this court grant review. Dated: March 8, 2013 14 CERTIFICATE OF WORD COUNT I, , certify pursuant to the California Rules of Court that the word count for this document is 4,599 words, excluding the tables, this certificate, and any attachment permitted underrule 8.204 subsection (d). This document was prepared in Microsoft Word, and this is the word count generated by the program for this document. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Ventura, California, on March8, 2013. STEPHENP. LIPSON, Public Defender Anna Twitty, TPAmm 22 Public Defender’s Office (805) 654-3516 15 APPENDIX A 16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX _ THE PEOPLE, , 2d Crim. No. B238600 - (Super. Ct. No. 2011007697) Plaintiff and Respondent, . . (Ventura County) y | COURTOF APPEAL-SECONDDIST, ARNOLD IKEDA : ir.| L & oS . 7 JAN 3 9 2018 Defendant and Appellant. , JOSEPH A, LANE, Clerk Wehold that where a personis detained outside but near his residence, the police may conduct a “protective sweep" inside the residence when there is a reasonable suspicion that a person therein poses a dangerto officer safety. Arnold Ikeda appeals his conviction by plea to possession of methamphetamine for sale (Health & Ins. Code, § 11378), entered afterthetrial court denied a motion to suppress evidence (Pen. Code, § 1538.5). The trial court found that the protective sweep of appellant's motel room, madein conjunction with appellant's detention outside the room, did not violate his Fourth Amendment rights. Weaffirm. Facts & Procedural History On February 14, 2011 the namedvictim reported that his laptop computer equipped with a GPS tracking device was stolen. On March 1, 2011,the tracking company notified Ventura County Deputy Sheriff Hardy that someone had changed the computer password to "Arnold Ikeda"and was using the laptop at the Holiday Inn Express in Oxnard. Deputy Hardy went to the motel and showed the motel manager appellant's photo. The manager said that appellant was in room 104,that appellant changed roomsevery day, and that he had left a card key at the front desk for a woman who came and went. Based onhis training and experience, Deputy Hardy was concerned because the room change was consistent with someoneselling narcotics. Room 104 was on the ground floor and had a curtained rear glass sliding doorto the parkinglot. Deputies Hardy and Johnson wentto the front door and Detective Lynch positioned — himself outside the rear sliding door, Deputy Hardy heard two male voices inside the room, knocked, and announced "Sheriff'sDepartment." A voice responded "One moment." A minute later, Detective Lynch saw the reat glass door openand appellant step out. _ Detective Lynch detained and handcuffed appellant for officer safety purposes. Appellant said that a BB gun was in theroom. Appellant claimed no one was in the room. This was inconsistent with Deputy Hardy having heard voices before knocking. He believed a woman or someoneelse was in the room. Deputy Hardy and Detective Lynch announced "Sheriff's Department," pulled back the door curtain, and conducted a protective sweep. A laptop computer was in plain view and matchedthe description of the stolen laptop. A crystalline substance that resembled methamphetamine was on the counter and a scale, pay/owe sheet, and cash were on the bed. Appellant was arrested and consented to a search of the room. The officers seized the BB gun. After advisement and waiverofhis constitutional rights, appellant admitted selling drugs and using methamphetamine. . Appellant brought a motion to suppress evidence on the theory thatthe protective sweep violated his Fourth Amendmentrights. The trial court denied the motion to suppress becausethe officer had a reasonable suspicion that someone was hiding in the room and posed a dangerto officer safety. . Protective Sweep On review, we defer to the trial court's express and implied factual findings which are supported by substantial evidence and independently determine whether the protective sweep was reasonable under the Fourth Amendment. (People v. Ledesma (2003) 106 Cal.App.4th 857, 862.) It is settled officers may conduct a protective sweep of a house whena suspectis arrested outside the house andthe officers have a reasonable, articulable suspicion that the house harbors a person who posesa threat to officer safety. (Maryland v. Buie (1990) 494 U.S. 325, 335-336 [108 L.Ed.2d 276, 287].) , Appellant argues that a protective sweep is not permitted unless the officer is lawfully inside the houseor the sweepis incidentto an arrest outside the house. In | _ People v. Celis (2004) 33 Cal.4th 667 (Celis), our Supreme Court assumed, without deciding, that the Buie reasonable suspicion standard applied to a detention where an officer detained defendantoutside his house and conducted a protective sweep.(/d., at pp. 679.) In Celis, officers watched defendant's housefor two days and had no information that anyone else was in the house when defendant was detainedin the backyard. "The facts known to the officers before they performedthe protective sweep fell short of what Buie requires, thatis, ‘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.]" Ud., at pp. 679-680.) | Wereject the argument that protective sweeps must be incident to a lawful arrest, as opposed to a detention outside his house. Consistent with Buie and Celis, - courts have concluded that a protective sweep may be conducted in conjunction with a suspect's detention where there is a reasonable suspicion that the area to be swept harbors a dangerous person. (People v. Werner (2012) 207 Cal.App.4th 1195, 1206 [rule allowing protective sweep in conjunction with suspect's detention recognized but suppression motion should have been granted because no reasonable suspicion that a dangerous person wasinside the residence]; see also United States v. Garcia (9th Cir. 1993) 997 F.2d 1273, 1282.) Reasonable Suspicion Appellant asserts that the officers lacked a reasonable suspicion that someone was hiding in the room and poseda risk of harm to the officers. Although Deputy Hardy was investigating a computertheft, the motel clerk said that appellant _ changed roomsdaily and always requested a groundfloor room. Theofficers were told that appellant had left a card key at the front desk for a woman who cameand went. | Deputy Hardy heard male voices in the room and knocked. Someonein the room said “one moment"and appellant exited the rear sliding door, was detained, and said there was a BB gun in the room. Basedonthe voices, the card key at the front desk, the report that a woman came and wentto the room, appellant's use of motel rooms | consistent with drugtrafficking, and appellant's statement that a gun wasin the room, a reasonably prudent officer would entertain a reasonable suspicion that a protective sweep of the foom was required for officer safety purposes. Although appellant was detained and handcuffed, the rear door wasajar about two feet and the door curtain blocked everyone's view into the room. Detective Lynchtestified: "I was concerned that there might be another individual inside the room, coupled with the fact that Mr. Ikeda told me there was, in his words, a BB gun,I didn't feel safe. I don't feel secure in being able to investigate in the manner we were doing withoutfirst ensuring there was nobody in the room that could hurt us." "Reasonable suspicion"is an abstract concept, not a finely-tuned standard. (People v. Ledesma, supra, 106 Cal.App.4th at p. 863.) The United States Supreme Court has repeatedly warned that reasonable-suspicion determinations must be based on "the totality of the circumstances'.... [Citation.] This process allowsofficers 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]." (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 749-750].) Conclusion The Fourth Amendmenthas never been, and should notbe, interpreted to require that police officers take unreasonablerisks in the performanceoftheir duties. We again borrow from the words of Presiding Justice Pierce,i.e., the lawrequires police officers, "live ones," to enforce constitutional statutory, and decisional law. Here, we have balanced competing rights and concludethat "officer safety" must carry the day. (See e.g., In re Richard G. (2009) 173 Cal.App.4th 1252, 1255, citing People v. Koelzer (1963) 222 Cal.App.2d 20, 27.) .) - : | The judgment(order denying motion to suppress)is affirmed. CERTIFIED FOR PUBLICATION YEGAN,J. “We concur: GILBERT,P.J. PERREN,J. Charles W. Campbell, Judge . Superior Court County ofVentura Stephen P. Lipson, Public Defender; Michael C. McMah on, ChiefDeputy and Cynthia Ellington, Senior Deputy Public Defender, for a ppellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant A ttorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez , Deputy Attorney General, for Plaintiff and Respondent. PROOFOF SERVICE Case Name: People v. Arnold Ikeda Case No. S 3; (B238600; 2011007697) On March8, 2013, I, ANNA TWITTY,declare: I am overthe age of 18 years and not a party to this action. I am employed in the Office of the Ventura County Public Defender. My business address is 800 South Victoria Avenue, Ventura, California 93009. . Onthis date, I personally served the following namedpersonsat the places indicated herein, with a full, true, and correct copy of the attached document: PETITION FOR REVIEW: Gregory Totten, District Attorney Hon. Ronald Purnell, Judge, and Attn: Michael Schwartz, Spec. Asst DA Hon. Charles Campbell, Office of the District Attorney Ventura County Superior Court Hall of Justice, 3rd Floor Hall of Justice, 2nd Floor 800 South Victoria Avenue 800 South Victoria Avenue Ventura, CA 93009 Ventura, CA 93009 Clerk of the Court California Superior Court, Ventura 800 South Victoria Avenue Ventura, CA 93009 Onthis date, I enclosed full, true, and correct copyofthe attached document: PETITION FOR REVIEW OF A PUBLISHED OPINION in a sealed envelope or package addressedto the personsat the addresses listed below, and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the County of Ventura’s practice for collecting and processing correspondencefor mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am employedin the county where the mailing occurred. The envelope wasplaced in the mail at Ventura, California. Clerk of the Court . Kamala Harris, Attorney General Second District Appellate Court, Mary Sanchez, DAG Division 6 Office of the Attorney General 200 East Santa Clara Street 300 South Spring Street Ventura,.CA 93001 North Tower- Fifth Floor Los Angeles, CA 90013-1230 Arnold Ikeda Address of Record (Defendant-Petitioner) I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. STEPHEN P. LIPSON, Public Defender a ?c(LAE ANNA TWITTY,» EPA Public Defender's Office (805) 654-3516
