P. v. Franco

Filed 9/12/07 P. v. Franco CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Mario Franco, Jr., pled no contest to one count of possession for sale of a controlled substance (Health & Saf. Code,  11378), one count of possession of a deadly weapon (Pen. Code,  12020, subd. (a)(1)), and one count of maintaining a place for selling or using a controlled substance (Health & Saf. Code,  11366).

On appeal, Franco contends the trial court erred in denying his motion to suppress evidence. We agree with Franco that the initial warrantless "protective sweep" of his home was unlawful. Nevertheless, we conclude the subsequently issued search warrant is valid. After excising the tainted information, the remaining information in the warrant affidavit establishes probable cause for the search. We affirm.

FACTS

On April 13, 2004, Rudy Franco reported to the Oxnard Police that there had been a fight involving a gun. Franco said that at about 6:45 p.m., there was a knock on the door. When Franco answered it, Ricardo Figueroa called out to him from the front yard. Franco went into the front yard and began to fight with Figueroa. During the fight, Figueroa brandished a handgun and fired one round. The fight continued toward the street, and a second round was fired. Eventually, Franco was able to subdue Figueroa. Figueroa fled in a car that was later stopped by a police officer.

A witness told a police officer that a family member took the gun used by Figueroa into the house. When the police requested the gun, family members said they did not know where the gun was. After the police threatened to obtain a warrant to search the house, Mario Franco agreed to show the police where the gun was. Franco took an officer into the back yard of the residence and pointed over a wall. On the other side of the wall, the officer saw an open black bag. The bag contained a .45-caliber handgun and several plastic bags containing methamphetamine. Police found a spent .45-caliber round and a live .45-caliber round in the street in front of the house.

The police conducted a warrantless "protective sweep" of the Franco residence, looking for suspect and victims. During the sweep, the police saw an open safe containing baggies commonly used to store illegal drugs, a video surveillance system and a police scanner. Based on what they saw during the sweep, the police formed the opinion that the residents were conducting drug sales out of the house.

Based on this information, the police obtained a warrant to search the house. During the search pursuant to the warrant, the police found in the house drugs and other items indicative of drug sales.

Franco moved to suppress the evidence and quash the warrant on the ground that the evidence used to establish probable cause was found during an improper earlier protective sweep. In denying the motion, the trial court stated, in part: "[T]he officer now knows with an accumulation of information that there has been a fight, there has been gunshots, there has been a reluctance to produce the gun in the first place, and then when it is produced, i.e., in terms of indicating where it is, we not only have a gun, we've got bags with white substances in them. That's a new chapter in the story which has to cause the officer to wonder what's happening here. [] . . . [] [I]n the meantime, we find a spent .45-caliber casing, a live .45-caliber round in the street. These things do match the caliber of the gun. And the officers engage in a protective sweep, which at this time then is definitely an appropriate thing to do . . . ."

DISCUSSION

In reviewing the trial court's ruling on a motion to suppress, we give deference to the trial court's findings of historical facts that are supported by substantial evidence. (People v. Ayala (2000) 23 Cal.4th 225, 255.) We independently review the application of the law to the historical facts. (Ibid.)

I

The Attorney General argues the initial entry into the home can be justified as a protective sweep. The United States Supreme Court in Maryland v. Buie (1990) 494 U. S. 325 (Buie), stated: "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Id. at p. 337.) "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." (Id. at p. 327.) "A protective sweep . . . occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime." (Id. at p. 333.) It allows the arresting officers to take "steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." (Ibid.)

Unlike an entry based on exigent circumstances, a protective sweep does not require probable cause. (People v. Celis (2004) 33 Cal.4th 667, 678.) Instead, a protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person. (Ibid.) But it may not be based on an inchoate and unparticularized suspicion or a hunch. (Ibid.) It must be supported by "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonable prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Id. at p. 677, quoting Buie, supra, at p. 334.)

Here the protective sweep was not "incident to an arrest." (Buie, supra, 494 U. S. at p. 327.) Nor was it conducted as "an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime." (Id. at p. 333.) The police were at the scene because it was reported that Rudy Franco had been the victim of an assault. There is nothing to suggest the police took anyone at the Franco residence into custody until after the sweep and the search pursuant to the warrant.

Nor are there articulable facts and inferences that would warrant an officer in believing the area swept harbors a dangerous person. The warrant affidavit states only that the sweep was conducted to look for suspects or victims. The affidavit does not state the police believed there were suspects or victims in the house, no less on what facts that belief might be based. At the time of the sweep, the police had uncontradicted information that the assailant had fled without the gun.

The Attorney General points out that the Franco family was initially evasive about the location of the gun. But the police had possession of the gun before conducting the sweep. It was no longer a danger to anyone.

The Attorney General argues it was not clear at the time the police had the same gun that was used in the shooting. But the only information the police had at the time of the sweep was that the gun they had was the one used in the assault. This information was corroborated by the .45-caliber casing and live round found at the scene. More importantly, nowhere in the affidavit do the police attempt to justify the sweep on the ground that the gun may be in the house. The affidavit in support of the warrant states only that the sweep was for "additional suspects and/or victims."

Because the protective sweep was unlawful, the information obtained during the sweep cannot support the warrant. (See People v. Ormonde (2006) 143 Cal.App.4th 282.)

II

The Attorney General contends that even if the information obtained during the protective sweep is tainted, the warrant may nevertheless be upheld under the doctrine of inevitable discovery.

The doctrine of inevitable discovery provides that illegally obtained evidence is admissible if it would have been inevitably discovered independent of the improper police conduct. (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136.) The test is whether there is a reasonably strong probability the police would have discovered the tainted evidence. (Ibid.)

The Attorney General claims the police had probable cause to search the house based solely on facts observed outside the house. Franco argues, however, that probable cause is insufficient by itself to invoke the doctrine of inevitable discovery. (Citing U. S. v. Mejia (9th Cir. 1995) 69 F.3d 309, 319-320.) If probable cause by itself were sufficient to sustain a search under inevitable discovery, the police would never bother to obtain a warrant. (Ibid.)

But here the police did obtain a warrant, albeit one supported by an affidavit containing information that was the product of an unlawful sweep. The question is whether, after excising all tainted information, the warrant affidavit contains sufficient remaining information to establish probable cause. (People v. Morton (2003) 114 Cal.App.4th 1039, 1049.)

Prior to the sweep, the police learned that the gun used in the assault may have been taken into the Franco house. When the police demanded the gun, Franco took them into the backyard and pointed to the neighbor's yard. There the police saw the gun in an open black bag. The bag not only contained the gun, but also what appeared to be methamphetamine.

The most probable conclusion is that someone in the Franco household put the gun in the bag and tossed it into the neighbor's yard in anticipation of the arrival of the police. Franco knew where the gun could be found. The gun linked the black bag and the methamphetamine found therein to the Franco household. The police would have to be unduly nave not to conclude it probable that more contraband would be found in the Franco house. Thus excised of the tainted information, the warrant affidavit supports probable cause for the search.

Franco points out that the People did not raise the question whether the warrant could be sustained by excising the tainted information. Instead, this court raised the issue for the first time on appeal. Franco cites Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, for the proposition that the prosecution is prohibited from advancing a new argument to uphold the search on appeal.

In Lorenzana, the defendant sought to suppress evidence obtained as a result of a warrantless police surveillence of the interior of his home. The People requested if the Supreme Court concludes the surveillance violated constitutional requirements, that the case be remanded to the trial court to allow the People to argue inevitable discovery. The court concluded the search was invalid, but denied the People's request for a further hearing. The court stated to allow the reopening of the question of admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage the parties from presenting all evidence in the trial court. (People v. Lorenzana, supra, 9 Cal.3d at p. 640.)

But in Greene v. Superior Court (1985) 40 Cal.3d 126, 137-139, the court limited the holding in Lorenzana. The court pointed out that in Lorenzana, the People's new theory was not supported by the record, and would have necessitated the taking of considerably more evidence. (Id. at pp. 137-138.) The court stated: "Where, as here, the record fully establishes another basis for affirming the trial court's ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory, we hold that the failure to have urged the theory below does not preclude our reliance on it to affirm the trial court's ruling." (Id. at pp. 138-139, fn. omitted.)

Franco argues that the prosecutor offered no theory below to support the search. He claims that had counsel or the trial court focused on the theory we suggested on appeal, he could have introduced evidence on the discovery of the backpack and its connection to him.

But in a search pursuant to a warrant, the burden is on the defendant to show the warrant was improperly issued. (4 Witkin & Epstein, Criminal Law (3d ed. 2000) Illegally Obtained Evidence,  360, p. 1046.) The prosecution had no burden below to assert any theory in support of the warrant.

Moreover, the discovery of the backpack and its connection to Franco are obvious issues to be considered in mounting an attack on the validity of the warrant. Neither the court nor the prosecutor prevented Franco from calling witnesses on those issues or any other issue at the suppression hearing. Instead, Franco stipulated that the suppression motion would be decided on the preliminary hearing transcript, moving papers and points and authorities. There is nothing to suggest Franco had any additional evidence pertaining to an attack on the warrant under any theory.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Bruce A. Clark, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller, David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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