P. v. Potter
Filed 11/14/13 P. v. Potter CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
BENJAMIN POTTER,
Defendant and
Appellant.
F066244
(Super.
Ct. No. BF141853B)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
Benjamin
Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael
P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Benjamin
Potter appeals from the denial of his Penal Code
his subsequent plea. He contends the
trial court erred in denying his motion to suppress because the warrantless
search of his home violated the Fourth Amendment to the
States Constitution. Specifically, he
contends there was a lack of probable cause and no exigency or emergency aid
exception to the warrant requirement. He
also asserts the protective sweep was impermissible because he was merely
detained and that detention occurred outside his home. We will affirm.
PROCEDURAL BACKGROUND
In an
information filed August 21, 2012,
the Kern County District Attorney alleged defendant willfully and unlawfully
possessed marijuana for the purpose of sale (Health & Saf. Code, § 11359,
count 1) and willfully and unlawfully cultivated marijuana (
defendant was armed with a firearm during the commission of the offenses within
the meaning of section 12022, subdivision (a)(1).
On August 31, 2012, defendant was
arraigned and entered pleas of not guilty and denied all allegations.
On September 21, 2012, defendant
filed a motion to suppress evidence
pursuant to section 1538.5. The People
opposed the motion. Testimony was taken
and the motion was heard and argued on October 5,
2012. The trial court denied
the motion on October 9, 2012.
Thereafter,
defendant pled no contest to cultivation of marijuana (Health & Saf. Code, § 11358,
count 2) and admitted the firearm allegation (§ 12022, subd. (a)(1)).
On November 27, 2012, imposition
of sentence was suspended and defendant was placed on three years’ formal
probation. Further, he was ordered to
serve 120 days on the work release program. Various fines and fees were also imposed.
Defendant
filed a timely notice of appeal.
FACTUAL BACKGROUND
In response
to a call about two individuals engaged in a verbal altercation, and the
possibility of an involved firearm, Sergeant Michael Grant with the Stallion
Springs Police Department proceeded to a home located on Ack
Ack Court in Tehachapi,
California.
Upon arrival, Grant observed two male subjects arguing in the front yard
of the home. One of the subjects was
defendant; the other was later identified as defendant’s brother Jason Potter.
When Grant
asked defendant to put his hands on his head and walk towards him, he noticed a
black semiautomatic handgun in defendant’s waistband. Defendant stated, “The gun is loaded. There’s one in the chamber, and there’s a
shotgun in the trunk of the car.†Defendant
was detained and the handgun was seized.
Jason Potter was also detained. Jason
Potter advised Grant he had called police and that no shots had been fired.
After
detaining both defendant and his brother, Grant observed movement inside the
house. More particularly, Grant noted a
curtain in a window to the left of the front door “moved about mid length at a
diagonal as if somebody may have taken a hand and brushed them aside.†The window was large, extending to knee
height at the bottom. Grant asked
defendant whether anyone was inside the home; defendant replied “no.â€
Although
Grant did not see or hear anyone inside the home, he was concerned someone was inside. However, he did not walk up to the home to
knock or look inside the window as he was the only officer on the scene. Grant called for additional units. He believed someone was inside the home who
could be armed or injured. While waiting
for backup to arrive, he spoke with both defendant and his brother. During that period, the curtains inside the
home moved another four or five times. Approximately
20 minutes later, other officers arrived on scene.
The
officers then approached the home. A
sheriff’s deputy knocked on the door, and the officers’ presence was announced,
but no one responded. Grant was unable
to see into the home through the window.
Although Grant had the keys to the home, they did not work and another
officer kicked in the front door. The
officers entered the home, and a large dog ran out.
Grant
called down the hallway for anyone inside the home; there was no response. After waiting less than a minute, the
officers proceeded down the hallway to the left of the front door, toward the
room where Grant had observed movement of the curtains. He detected an odor of marijuana in the
hallway. The door to the room in the
front of the home was open. No one was
present inside the room, however, Grant observed marijuana plants. More marijuana plants were found in a second
bedroom. The rest of the home and the
backyard were searched; other than two cats, no one was found inside.
After
exiting the house with the other officers, Grant contacted the narcotics
division. While waiting for narcotics officers
to arrive, Grant retrieved the shotgun from defendant’s vehicle parked in the
driveway.
About 30
minutes later, Mike Booker, a Kern County deputy sheriff assigned to the HIDTA
(High Intensity Drug Trafficking Area) task force, arrived. Grant relayed to Booker the circumstances of
the entry and information regarding the plants he had observed inside. Booker understood Grant and the other
officers entered to clear the home of other individuals and check for possible
victims.
Booker went
inside the home after speaking with Grant and the Potter brothers. He wanted to ensure the search warrant would
be accurate and wanted to include the number of plants and a description of the
equipment used to grow the plants. He
was experienced in narcotics activity and did not want to base the information
provided in the search warrant solely on another officer’s testimony.
The
information Booker gathered was included in his affidavit accompanying the
search warrant. Ultimately, the search
warrant was granted following a telephonic application and request to Judge
Marquez. Thereafter, the marijuana
plants were seized from the residence.
DISCUSSION
Applicable Legal Standards
The United
States and California Constitutions prohibit unreasonable searches and
seizures. (U.S. Const., 4th & 14th
Amends.; Cal. Const., art. I, § 13.) A warrantless entry is “presumptively
unreasonable.†(Payton v. New York (1980) 445 U.S. 573, 587.) The presumption may be overcome by
specifically establishing one of the few well-delineated exceptions to the
warrant requirement. (
347, 357.) One of those exceptions
includes “‘the risk of danger to the police or to other persons inside or
outside the dwelling.’†(
Entry into a home on the basis of
exigent circumstances requires probable cause to believe that the entry is
justified. (Ibid.)
“‘Our
review of issues related to the suppression of evidence seized by the police is
governed by federal constitutional standards.’ (People
v. Lenart (2004) 32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28,
subd. (f)(2).) ‘In reviewing a trial
court’s ruling on a motion to suppress evidence, we defer to that court’s
factual findings, express or implied, if they are supported by substantial evidence.
[Citation.] We exercise our independent judgment in
determining whether, on the facts presented, the search or seizure was
reasonable under the Fourth Amendment.’ (Lenart,
at p. 1119.)
“‘The
touchstone of Fourth Amendment analysis is whether a person has a “constitutionally
protected reasonable expectation of privacy.â€â€™ (California
v. Ciraolo (1986) 476 U.S. 207, 211, quoting Katz v. United States[, supra,]
389 U.S. 347, 360 (conc. opn. of Harlan, J.).)†(Robey
v. Superior Court (2013) 56 Cal.4th 1218, 1223-1224.)
Section
1538.5 provides, in relevant part, that “[a] defendant may move … to suppress
as evidence any tangible or intangible thing obtained as a result of a search
or seizure†if the search or seizure “without a warrant was unreasonable†or
where there was an absence of “probable cause for the issuance of the warrant.â€
“‘“‘A
proceeding under … section 1538.5 to suppress evidence is one in which a full
hearing is held on the issues before the superior court sitting as a finder of
fact.’ [Citation.]†[Citation.] … In such a proceeding the power to judge the
credibility of the witnesses, resolve any conflicts in the testimony, weigh the
evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise
of that power, and the trial court’s findings on such matters, whether express
or implied, must be upheld if they are supported by substantial evidence. The trial court also has the duty to decide
whether, on the facts found, the search was unreasonable within the meaning of
the Constitution. Although that issue is
a question of law, the trial court’s conclusion on the point should not lightly
be challenged by appeal or by petition for extraordinary writ. Of course, if such review is nevertheless
sought, it becomes the ultimate responsibility of the appellate court to
measure the facts, as found by the trier, against the constitutional standard
of reasonableness.’ [Citation.]†(People
v. Green (1996) 46 Cal.App.4th 367, 372.)
The Exigency Exception
Defendant
contends the warrantless entry into his house was not supported by probable
cause to believe someone inside the home posed a danger to those present. The People contend the initial entry was
justified based upon exigent circumstances.
“‘Exigent
circumstances’ … refers to ‘an emergency situation requiring swift action to
prevent imminent danger to life or serious damage to property, or to forestall
the imminent escape of a suspect or destruction of evidence.’ [Citations.] ‘There is no ready litmus test for determining
whether such circumstances exist, and in each case the claim of an
extraordinary situation must be measured by the facts known to the officers.’ [Citation.]†(People
v. Ortiz (1995) 32 Cal.App.4th 286, 291-292; see also People v. Thompson (2006) 38 Cal.4th 811, 818 [exigent
circumstances include hot pursuit of fleeing felon, imminent destruction of
evidence, the need to prevent suspect’s escape, or the risk of danger to police
or other persons inside or outside home]; People
v. Celis (2004) 33 Cal.4th 667, 676.)
“The Fourth
Amendment does not require police officers to delay in the course of an
investigation if to do so would gravely endanger their lives or the lives of
others.†(Warden v. Hayden (1967) 387 U.S. 294, 298-299.)
“‘As a general rule, the reasonableness of an officer’s
conduct is dependent upon the existence of facts available to him at the moment
of the search or seizure which would warrant a man of reasonable caution in the
belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted
reasonably, due weight must be given not to his unparticularized suspicions or “hunches,â€
but to the reasonable inferences which he is entitled to draw from the facts in
the light of his experience ….’ [Citation.]â€
(People
v. Duncan (1986) 42 Cal.3d 91, 97-98.)
The standard to be applied is an objective one: “An action is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state of mind, ‘as long as the
circumstances, viewed objectively, justify [the] action.’ [Citation.] The officer’s subjective motivation is
irrelevant. [Citation.]†(Brigham
City v. Stuart (2006) 547 U.S. 398, 404, italics omitted.)
Here, Sergeant
Grant responded to a report of two suspects fighting. When he arrived on scene, one of the two
suspects—defendant—was armed with a handgun.
Defendant advised Grant that the handgun was loaded with “one in the
chamber†and also indicated there was a shotgun in the trunk of his car. Once Grant had defendant and his brother
detained in the front yard, he observed movement inside the defendant’s
residence. More specifically, Grant
observed a curtain in a window at the front of the house, to the left of the
front door, move “about mid length at a diagonal as if somebody may have taken
a hand and brushed them aside.†The
window was large and extended to about knee height. Grant, who initially responded to the
dispatch alone, called for assistance.
While waiting for other officers to arrive, Grant observed the curtain
move four or five more times. Grant was
concerned there was someone inside who could be armed or that an individual
inside could be injured.
Sergeant
Grant’s conduct was reasonable in light of the facts available to him. Those facts included defendant being armed
with a loaded handgun and admitting to having a shotgun in the trunk of his car
when Grant arrived on scene, and Grant’s observation of continued movement at a
front window inside the home over the course of 20 minutes. We believe these facts would “warrant a man
of reasonable caution†to believe entry into the home was necessary to ensure
officer safety and/or rule out injury to another. Grant’s suspicions were particularized in
light of the weapon in defendant’s possession and the continued movement of the
curtain inside the home. His conduct was
not the product of a hunch, but rather a reasonable inference he was entitled
to draw from the facts known to him and in light of his experience. (People
v. Duncan, supra, 42 Cal.3d at
pp. 97-98.) Notably, while the evidence
reveals a large dog ran out of the house once officers entered and that two
cats were also inside the home, there was no evidence or testimony indicating
Grant was advised of either of these two possibilities while he waited for
assistance. Thus, he could not have
known the movement he was observing might be the result of the home’s pets.
Defendant
argues in cursory fashion that any exigency was created by the police. We do not agree. In Kentucky
v. King (2011) 563 U.S. ___ [131 S.Ct. 1849], to which defendant cites in
the absence of any analysis, police set up a controlled buy of crack
cocaine. After the deal occurred, undercover
officers directed uniformed officers to follow the suspect and stop him before
he reached a nearby apartment. (
they heard only a door closing. They had
no idea whether the suspect entered the apartment on the left- or right-hand side. The undercover officer advised via radio that
the suspect ran into the apartment on the right, but the uniformed officers had
already left their patrol cars; they were thus unaware of this fact. Smelling the odor of burning marijuana near
the apartment to the left, the uninformed officers knocked loudly and announced
their presence. In response to their
knock, they could hear people inside and believed “‘things were being moved
inside the apartment.’†(
destroyed and entered the home after kicking in the door. The occupants of the apartment were smoking
marijuana, and a protective sweep revealed powder cocaine in plain view. Subsequently, cash, drug paraphernalia and
crack cocaine were also located. (
circuit court finding probable cause.
The Kentucky Court of Appeals affirmed, yet the Kentucky Supreme Court
reversed. The nation’s high court
granted the state’s petition for writ of certiorari. (Id.
at pp. __ [131 S.Ct. at pp. 1854-1855[.)
The
circumstances rule, warrantless entry is allowed where the police did not
create the exigency by engaging or threatening to engage in conduct that
violates the Fourth Amendment. (Kentucky
v. King, supra, 563 U.S. at p. __
[131 S.Ct. at p. 1858].) In this case, nothing
in the testimony or evidence offered at the hearing on the motion to suppress
indicates Sergeant Grant or the other officers responding to his call for
assistance engaged or threatened to engage in conduct violating the Fourth
Amendment. As we noted above, Grant
responded reasonably to the facts before him, including the fact defendant was
armed when Grant arrived on scene, and that even after Grant detained defendant
and his brother, he detected movement behind a front window of the home when he
had been advised no one was inside. After
calling for the assistance of other officers, Grant waited, and during that
wait, noted the continued movement of the curtain in a front room. He testified that movement occurred “as if
somebody may have taken a hand and brushed†the curtain aside.
Defendant
relies upon People v. Ormonde (2006) 143
Cal.App.4th 282 in support of his argument.
In that case, a woman called from the corner of the block where the
defendant’s apartment was located to report that she had gotten in a fight with
her estranged husband, Christopher Olson, and that Olson had pushed her and
kicked her in the stomach. When two
officers arrived at the defendant’s apartment, Olson was standing next to a car,
10 feet away from the apartment’s open front door. After arresting Olson, an officer entered the
apartment and took three steps inside before the defendant, his girlfriend, and
a small child came out from the back of the apartment. The officer had them step outside and
eventually he obtained permission from the defendant to search a dresser and a
backpack. Drugs belonging to the
defendant were found as a result of that search. (Id.
at pp. 286–289.)
In
reversing the denial of the defendant’s suppression motion, the
circumstances did not justify the initial entry into the house because the
domestic violence victim was outside of the apartment, the estranged husband
was arrested outside the apartment, none of the officers who testified
articulated any reason to believe there were any other victims or suspects
inside the apartment, and none of the violence was reported to have occurred
inside the apartment. (
from the instant case. While the alleged
argument between the Potter brothers occurred in the front yard of the home and
both brothers were detained outside, here Sergeant Grant, unlike the officers
in Ormonde, had reason to believe, and
testified that, an additional victim or suspect could be inside. The curtain in a front room of the home
continued to move for a period of about 20 minutes, despite the brothers
advising Grant no one was inside.
For the
foregoing reasons, we conclude the court did not abuse its discretion when it
denied defendant’s motion to suppress.
The Emergency Aid Exception
Defendant
also contends the search of his home was not justified under the emergency aid
exception to the warrant requirement.
“Under the ‘emergency
aid’ exception, … ‘officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from
imminent injury.’†(Kentucky v. King, supra, 563
U.S. at p. __ [131 S.Ct. at p. 1856].) In People
v. Troyer (2011) 51 Cal.4th 599, the state’s high court stated:
“The ‘“emergency aidâ€â€™ exception to the warrant
requirement ‘does not depend on the officers’ subjective intent or the
seriousness of any crime they are investigating when the emergency arises.’ [Citation.]
Rather, the exception ‘requires only “an objectively reasonable basis
for believing …†[citation] that “a person within [the house] is in need of
immediate aid.â€â€™ [Citation.] ‘We are to approach the Fourth Amendment …
with at least some measure of pragmatism.
If there is a grave public need for the police to take preventive action,
the Constitution may impose limits, but it will not bar the way.’ [Citation.]†(People
v. Troyer, supra, 51 Cal.4th at
p. 606.)
The Troyer court
noted that in balancing an individual’s right to privacy against legitimate
governmental interests as to the reasonableness of a search, the court “must be
mindful of what is at stake. The
possibility that immediate police action will prevent injury or death outweighs
the affront to privacy when police enter the home under the reasonable but
mistaken belief that an emergency exists.†(People
v. Troyer, supra, 51 Cal.4th at
p. 606.) Here, while Sergeant Grant was
advised by the Potter brothers that no one was inside the residence, he was not
required to take them at their word.
Further, after being advised there was no one inside the home, the
curtain in a front window continued to move as if pulled back by someone’s
hand. Considering this together with the
fact defendant had been armed with a handgun prior to Grant’s arrival on scene,
it was not unreasonable for Grant to believe the situation required entry to
prevent possible injury or death or to render aid. Hindsight does not negate the reasonableness
of Grant’s belief in that need. He could
not have known what events transpired prior to his arrival on scene.
Even though
defendant cites a number of cases involving facts indicating the potential for
emergency aid was greater than those presented here, that does not mean the
facts available to Sergeant Grant were inconsequential or that those facts
rendered Grant’s action unreasonable.
The United States Supreme Court has cautioned that investigating
officers need not have “ironclad proof of ‘a likely serious, life-threatening’
injury†in order to apply the emergency aid exception to the warrant
requirement. They need only an
objectively reasonable basis to believe medical assistance is needed, or that
someone inside is in danger. (
The Protective Sweep
Finally, defendant
maintains a protective sweep of his home was impermissible as he was merely
detained outside the home and police lacked the required reasonable suspicion.
In
follows:
“A protective sweep of a house for officer safety as
described in [Maryland v.]
believe there is someone posing a danger to the officers in the area to be swept. [Citation.] A Buie
sweep is unlike warrantless entry into a house based on exigent circumstances (one
of which concerns the risk of danger to police officers or others on the
scene); such an entry into a home must be supported by probable cause to believe that a dangerous person will be found
inside. [Citation.] A protective sweep can be justified merely by
a reasonable suspicion that the area
to be swept harbors a dangerous person. [Citation.] Like the limited patdown for weapons …, a
protective sweep may not be based on ‘a mere “inchoate and unparticularized
suspicion or ‘hunch ….’â€â€™â€ (
Reasonable suspicion is determined on a case-by-case basis, looking
at the “totality of the circumstances†to ascertain whether the the officer had
“a particularized and objective basis†for his or her suspicion. (United
States v. Arvizu (2002) 534 U.S. 266, 273.)
In
1195, the Sixth Appellate District addressed the propriety of a protective
sweep where a defendant was arrested outside his home and police subsequently
performed a search of that home:
“A protective sweep is not limited to situations
immediately following an arrest; it may occur in conjunction with a suspect’s
detention …. And in some instances,
an entry of a residence solely to conduct a protective sweep may be justified
to ensure the safety of officers effectuating arrests just outside. [Citations.]
‘“[I]n some circumstances, an arrest taking place just outside a home
may pose an equally serious threat to the arresting officers†as one conducted
inside the house. [Citations.]’ [Citation.]
The facts known to the officers before they perform such a protective
sweep must still satisfy Buie; 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.]’ [Citations.]†(People
v. Werner, supra, 207 Cal.App.4th
at p. 1206, fn. omitted.)
Unlike the officers in Werner
and Celis, Sergeant Grant had
reasonable suspicion to believe another person was inside the home and the
person could pose a danger to officer safety. Grant arrived to a call concerning two
individuals fighting. One of the
individuals was personally armed and advised Grant that a shotgun was in the
trunk of his car. After detaining both
suspects in the front yard of the home, Grant, who responded to the dispatch
call alone, noted movement inside the residence. More particularly, Grant observed movement in
the curtain of a front window to the left of the home’s entry door. The window was fairly large, extending to
knee height. The curtain “moved about
mid length at a diagonal as if somebody may have taken a hand and brushed them
aside.†Although no shots had been fired
during the dispute between the individuals, they also advised there was no one
inside their home. And yet, movement
consistent with another person inside the home persisted despite their claims
to the contrary. Considering the
totality of circumstances here—defendant was personally armed and another
weapon was purported to be in the trunk of his car, coupled with the movement
of a curtain in the front window—Sergeant Grant rationally inferred that an
individual was inside the home and posed a danger to police. Grant’s suspicion was not based on “‘mere
inchoate and unparticularized suspicion or ‘hunch.’†(People
v Celis, supra, 33 Cal.4th at p.
678.)
In sum, we
find the trial court properly denied defendant’s motion to suppress evidence on
this basis as well.
Fruit of the Poisonous Tree
Defendant
claims Grant’s observations of the marijuana plants growing inside his home
were the product of an illegal search because none of the exceptions to the
exclusionary rule apply and there was no independent source of that information
justifying a warrant. He thus concludes
the evidence obtained from the search should have been suppressed.
“Under
the ‘fruit of the poisonous tree’ doctrine, both direct and indirect products
of an unreasonable search are subject to exclusion. (Wong
Sun v. United States [(1963)] 371 U.S. [471,] 484–485; Murray v. United States (1988) 487 U.S. 533, 536–537.) As explained by the California Supreme Court, ‘“[C]onducting
an illegal warrantless search and including evidence found in this search in an
affidavit in support of a warrant is an activity that the exclusionary rule was
meant to deter.†[Citation.] Moreover, because “the exclusionary rule also
prohibits the introduction of derivative evidence, both tangible and
testimonial, that is the product of the primary evidence, or that is otherwise
acquired as an indirect result of the unlawful search’ [citation], the rule
logically ought to bar the use of such evidence to support the issuance of a
search warrant.’ (People v. Machupa (1994) 7 Cal.4th 614, 628; see
29 [probable cause to support issuance of search warrant cannot be based upon
observations made after warrantless unlawful entry].)†(People
v. Werner, supra, 207 Cal.App.4th
at p. 1213.)
Because we
have already concluded Sergeant Grant had probable cause to believe an exigent
circumstance existed—an individual inside the home either could be in need of
emergency aid or could be armed and present a threat to officer safety—there is
no reason to require the exclusion of evidence here.
The
marijuana plants observed in defendant’s home were not the product of an
illegal or unreasonable search, and his Fourth Amendment rights were not
violated. Therefore, the fact those
observations were included in the affidavit to the search warrant application
does not require exclusion of the evidence.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before
Levy, Acting P.J., Cornell, J. and Peña, J.
name="_ftn2" title="">[1]All
further statutory references are to the Penal Code unless otherwise indicated.
