P.v. Cato

Filed 6/26/07 P.v. Cato CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

Prior to entering a plea of guilty to possession of an assault weapon (Pen. Code, 12280, subd. (b); further undesignated references are to this code) and resisting or obstructing a police officer ( 148), defendant Dennis Dwight Cato, Jr. filed, and the trial court denied, a motion to suppress evidence obtained after a warrantless entry and search of defendants residence. ( 1538.5.)

On appeal, defendant contends the warrantless entry violated the Fourth Amendment because there were no exigent circumstances to justify it and, even if the entry was permissible, there was no justification for the warrantless search. We shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Stockton Police Officer Gary Benevides was on patrol in an unmarked vehicle at 10:00 p.m. on the night of June 4, 2006. He was wearing a modified uniform -- i.e., a mesh armored vest with the words Stockton Police in white lettering on the back, the word Police and a large police department patch on the front, a black T-shirt, blue jeans and a duty belt. Benevides noticed a vehicle driven by the defendant going nearly twice the legal speed limit in a residential neighborhood, screeching its tires and tilting as it turned, and took up chase.

Benevides followed the vehicle for a period of time, trying to catch up with it. Eventually, he activated the solid red and flashing blue lights mounted on the front of the windshield mirror, but did not turn on the siren. He notified other officers of his location and direction as he followed the defendants car.

The defendant pulled into a residential driveway, stopped and got out of the car. Benevides pulled in behind him, got out and announced loudly that he was Stockton Police, and told the defendant to get back into the car.^[2] The defendant looked at Benevides and then turned and ran inside the house, closing the security screen door and the front door behind him as Benevides continued to demand that he stop.

While Benevides waited for backup, he positioned himself such that he could view both the front and side yards of the residence. He noticed a light go on and off and movement inside a room in the southeast corner of the house and communicated that observation to the other officers.

Police backup arrived minutes later. They went to the front door with Benevides, knocked on the door, announced they were Stockton Police and told the occupant(s) to come to the door. After about 30 seconds, defendants father, Dennis Cato, Sr. (Cato, Sr.), opened both doors and asked what was going on. When one of the officers told him that somebody had just run from the car into the house, Cato, Sr. acted surprised, as if he did not know anything about it. Behind Cato, Sr. stood the defendant, who Benevides recognized as the person who had run from the car into the house.

Police entered the house and Benevides placed the defendant in handcuffs. Defendant acted like he did not know what was going on, denying having driven or run from the car and saying he did not know what the police were talking about.^[3] Benevides asked defendant whether anyone else was in the house other than Cato, Sr. The defendant indicated his girlfriend was there. Benevides again announced for anyone in the house to come out.

When Officer Sean Johansen arrived, the defendant was sitting outside the residence in handcuffs. Johansen was directed to do a protective sweep of the residence because a suspect was inside and he had been informed that someone was seen in the southeast bedroom of the residence.^[4]

After defendant was secured outside the house, Benevides, Johansen and several other officers conducted a search to clear[] the house. Benevides searched the southeast bedroom where he had observed movement earlier. Johansen searched the northeast bedroom. Looking into an open closet, Johansen discovered an open rifle case containing an AK-47 assault rifle with a 30-round magazine inserted in the chamber in plain view.

Defendants girlfriend, Jennifer Bohn, testified at the preliminary hearing that she was alone sleeping in one of the bedrooms when she was awakened by the sound of banging on the door and voices yelling, Stockton Police. She stood by the bedroom door and listened momentarily until she heard one of the officers ask if anyone was in the house. She then walked out into the hallway, where she was met by police and led outside.

Cato, Sr. testified that he was watching television in the southeast bedroom when he heard someone beating on the door, saying Stockton Police Department, open up. According to Cato, Sr., it was the defendant who opened the door and walked outside, at which point he was handcuffed and taken into custody. Only then did the police enter the house. Cato, Sr. testified that when he told the police they needed a warrant to come into the house, one of the officers slapped him in the face. When he put his hand up to protect himself, the officers took him down and handcuffed him, telling him to calm down.

Defendant testified that he did not know the car following him was a police car. When he pulled into his driveway, he got out of the car and walked toward the house. When he was about halfway to the front door, he heard Benevidess car come screeching into the cul-de-sac, but did not see any lights at that time. When he put his key in the security door, he looked back and saw that Benevides had gotten out of the car, but was partially hidden behind the drivers side door. The defendant testified he heard Benevides say, Police. Come over here, and only then saw the lights flashing on the car. Not recognizing the car as a police car, and having heard that there had been some recent home invasion robberies in the neighborhood, defendant said, You are not the police, and went inside the house, closing the door behind him. He then went into the northeast bedroom and peered out the blinds. When a marked police car arrived and defendant heard pounding on the door, he opened the door and walked outside, where he was handcuffed and placed in a patrol car.

Defendant was arrested and charged with cultivating marijuana (Health & Saf. Code, 11358 Count 1), possession of an assault weapon ( 12280, subd. (b) Count 2), evading a police officer (Veh. Code, 2800.1 Count 3) and resisting, delaying or obstructing a police officer ( 148 Count 4).

Defendant filed a motion pursuant to section 1538.5 to suppress the evidence obtained during the warrantless entry and search of his home. That motion, which was heard in conjunction with the preliminary hearing, was denied. Defendant entered a plea of guilty to Counts 2 and 4 in exchange for dismissal of the remaining charges against him, jail time equal to presentence custody credit and formal probation. The court suspended imposition of judgment and placed defendant on formal probation for five years.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that because there were no exigent circumstances, the exception to the warrant requirement does not apply to the entry by police into his residence. He urges further that, even if the warrantless entry was permissible to make the arrest, there was no justification for the warrantless search that followed. We disagree with the first contention, but find merit in the second.

In moving to suppress evidence obtained via an unreasonable, warrantless search or seizure, a defendant has the initial burden of raising a Fourth Amendment issue by showing that the search or seizure was conducted without a warrant and explaining why it was unreasonable. The burden then shifts to the prosecution to prove reasonableness by a preponderance of the evidence. (People v. Williams (1999) 20 Cal.4th 119, 127129; People v. James (1977) 19 Cal.3d 99, 106.)

We first review the trial courts factual findings underlying the denial of a motion to suppress for substantial evidence. We then independently review the determination of whether the search or seizure was reasonable in light of those facts. (People v. Woods (1999) 21 Cal.4th 668, 673674; People v. Memro (1995) 11 Cal.4th 786, 846.)

The presumption of unreasonableness that attaches to a warrantless entry into the home can be overcome by a showing of one of the few specifically established and well-delineated exceptions to the warrant requirement [citation], such as hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling [citation]. (People v. Thompson (2006) 38 Cal.4th 811, 817-818.) One type of exigent circumstances has been recognized where an arrest or detention based on probable cause has begun in a public place, but the suspect retreats into a private place in an attempt to thwart the arrest. (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1428 (Lloyd)[defendants refusal to comply with lawful detention for traffic violations justified hot pursuit into house to prevent defendant from frustrating arrest].)

Defendant led Benevides on a 50-mile-per-hour chase late at night through a residential neighborhood, during which Benevides displayed solid red and flashing blue lights. When the defendant finally stopped in his driveway, Benevides identified himself as a police officer and instructed the defendant to get back in the car. Instead, the defendant turned and ran into the house despite Benevidess continued demands that he stop.

The defendant instigated the chase by speeding -- a traffic infraction. He then compounded that violation by refusing to heed Benevidess instructions. Defendants refusal to comply with Benevidess attempt to detain him in a public place for the traffic infraction committed in Benevidess presence provided probable cause for the arrest, and hot pursuit of the defendant into his house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement. (Lloyd, supra, 216 Cal.App.3d at p. 1429; In re Lavoyne M. (1990) 221 Cal.App.3d 154, 159 (Lavoyne).) Because the reasons for prohibiting people from driving drunk (People v. Hampton (1985) 164 Cal.App.3d 27, 33-34) and ignoring stop signs and driving without a license (Lavoyne, supra, at p. 158) are the same as those for prohibiting people from speeding and driving erratically, the minor nature of the offense here does not impact the applicability of that exception. (Lloyd, supra, 216 Cal.App.3d at p. 1430; Lavoyne, supra, 221 Cal.App.3d at p. 159; People v. Abes (1985) 174 Cal.App.3d 796, 807.)

Although the court recognized the discrepancy in testimony as to where the defendant was standing when he was arrested, it accepted Benevidess version of events that police had to cross the threshold and walk into the house to arrest the defendant because he was standing inside the house behind his father. We conclude there is sufficient evidence to support that determination.

We do, however, find error in the trial courts denial of defendants motion to suppress as it relates to the warrantless search following defendants arrest.

If reasonable fear for officer safety justifies a warrantless entry, the officers may lawfully do a protective sweep of the premises to search for persons and weapons. If they detect evidence of a crime or contraband in plain view during a protective sweep, they may lawfully seize that evidence. (Maryland v. Buie (1990) 494 U.S. 325, 327, 330 [108 L.Ed.2d 276, 281-283].) A protective sweep is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (Ibid.)

Here, there was no evidence to suggest that the police officers were in any danger. The defendant was handcuffed and removed from the premises. Although Cato, Sr. became combative with Officer Holley, he was quickly subdued, handcuffed and removed from the house as well. Defendants girlfriend, Bohn, was escorted out of the house as soon as she made her presence known by stepping from her bedroom into the hallway.

Furthermore, Benevides was pursuing the defendant for speeding and driving erratically. Although defendants attempt to evade arrest by running into the house added an element of suspicion and danger to the situation, there was no testimony from either Benevides or Johansen, nor is there any evidence in the record, that the circumstances themselves presented a situation so dangerous as to warrant a protective sweep of the house, such as a fleeing felon running into a building known for frequent drug activity or a gang member attempting to escape arrest by hiding out in a residential neighborhood known for gang activity.

Benevides testified he was certain the defendant had driven the car and run into the house. However, because defendant denied any knowledge of the incident and because Benevides suspected that someone might still be inside the house, he conducted a protective sweep to make sure it was safe and nobody else was going to come out while they were dealing with people at the front door. Johansen also testified that the protective sweep was necessary based on information he received regarding movement in the southeast bedroom. Even if the officers suspicions were correct, there simply was no evidence that a protective sweep was necessary after securing defendants arrest and removing Bohn and Cato, Sr., particularly in light of the nature of the initial offense -- a traffic infraction -- and the absence of evidence to demonstrate the officers had a reasonable belief, based on specific and articulable facts which, taken together with the rational inferences from those facts, that the area swept harbored an individual posing a danger to the officers or others. (Michigan v. Long (1983) 463 U.S. 1032, 1049-1050 [77 L.Ed.2d 1201, 1220], quoting Terry v. Ohio (1968) 392 U.S. 1, 21 [20 L.Ed.2d 889, 906].) We conclude the evidence was not sufficient to justify the warrantless search of defendants residence. As such, the denial of the motion to suppress with respect to that search was error.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court to grant the motion to suppress consistent with this opinion.

BLEASE , Acting P. J.

We concur:

HULL, J.

ROBIE , J.

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^[1] The facts are summarized from the preliminary hearing (held in conjunction with defendants section 1538.5 motion), from which the court found a factual basis for the plea.

^[2] Benevides could clearly see that the individual who ran from the car to the house was a white male, bald and wearing a green shirt.

^[3] When the police took defendants statement later at the police station, defendant admitted he saw the car behind him with the lights on but thought a friend might be playing a prank on him. He explained that he ran into the house because he had outstanding warrants and thought that if he ran inside, locked the door and stayed there the police would eventually go away as they had done in the past.

^[4] On his way into the house, Johansen observed Cato, Sr. in an argument with Officer Holley in front of the house. When Cato, Sr. made a fist and advanced toward Holley, Johansen and another officer assisted in controlling him, placing him in handcuffs as well.