P. v. Wolfe
Filed 5/22/13 P. v. Wolfe CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
BRADLEY
ALLEN WOLFE,
Defendant and Appellant.
A135878
(Sonoma
County
Super. Ct.
No. SCR612853)
Appellant
Bradley Allen Wolfe pleaded no contest to unlawful
possession of an assault weapon (former Pen. Code, § 12280, subd. (b))
court denied his motion to suppress evidence seized during a search of his
bedroom. On appeal, he contends the
trial court erred in refusing to suppress the evidence. We affirm.
I.
FACTUAL AND
PROCEDURAL HISTORY
On
August 16, 2010, Sonoma
County deputy sheriffs came across
a locked bedroom while performing a parole search of the Rohnert
Park home of appellant’s brother, Steven Wolfe.
name="_ftnref2" title="">[2] As described in more detail below, the
officers entered the room and did a protective sweep. Although no one was in the room at the time,
the officers saw documents suggesting that the room was inhabited by Bradley. After learning that Bradley was on probation,
the officers searched the room and found weapons and ammunition. The issues in this appeal arise out of the
legality of the officers’ entry into the bedroom.
The
decision to search Steven’s house was made earlier in the day by Deputy Sheriff
Marcus Holton who had received information that Steven possibly had been
watching the home of a police chief in a nearby town. Steven had a history of assaulting law
enforcement personnel and was on parole for threatening a police officer
(§ 69). Holton assembled a search
team, consisting of him and five other officers, supported by a sheriff’s
helicopter.
When
the search began, the officers’ first objective was to secure the single-story
residence by performing a protective sweep.
The officers encountered no one and saw nothing unusual, except they
discovered a locked bedroom door. They
knocked on the door, but no one responded.
An officer attempted to look into the room through an outside window,
but the blinds were shut.
The
locked door gave Holton a heightened concern for the officers’ safety. His concern was partly due to Steven’s
history of violence against law enforcement officers, but it was also because
Holton noticed a strong odor of “green†(as opposed to burnt) marijuana coming
from the room, which raised the possibility that someone would have weapons to
protect cash or drugs. In addition,
officers searching other parts of the house had found a flare gun and pepper
spray. Holton believed that a person in
the bedroom could fire bullets through the door or walls or come out with a
weapon.
One
of the officers was posted outside of the locked bedroom while others continued
to search different parts of the house.
At one point, Holton was told that Steven was at the Cotati Police
Department and was claiming that the locked room was inhabited by his brother,
Bradley. Holton had no other information
from which he could determine whose bedroom it was, and he did not know where
Bradley was at the time.
The
officers decided to enter the bedroom to make sure no one was hiding in it, and
an officer kicked the door open. Holton
estimated that they entered the bedroom approximately 15 to 20 minutes after
completing the initial protective sweep of the house. Another officer at the scene, Deputy Sheriff
Bryan Jensen, estimated that the amount of time it took before entering the
locked room was “pushing†ten minutes.
Once
in the bedroom, the officers saw a fishing license and a California
identification card with Bradley’s name on them. Jensen also noticed mail addressed to Bradley
from the County of Solano. He left the
room and called the sheriff’s department dispatch, from which he learned that
Bradley was on probation for a felony conviction in Solano County. Jensen then called and spoke with Bradley’s
probation officer, who provided an address that matched Steven’s and who
explained that Bradley was subject to warrantless searches as a condition of
his probation.
The
officers then searched the bedroom.
Holton found an AR-15 rifle hidden in a closet. An ammunition magazine inserted into the
weapon was empty, but Holton found additional magazines, at least one of which
was loaded. The search also uncovered
several large “ziploc†bags containing marijuana, several jars containing
marijuana, three samurai swords, and a police scanner.
Bradley
was charged in a felony complaint by the
County District Attorney with unlawful possession of an assault weapon
(Colt AR-15 rifle) (former § 12280, subd. (b)), felon in possession of a
firearm (former § 12021, subd. (a)(1)), and felon in possession of
ammunition (former § 12316, subd. (b)(1)).
He pleaded not guilty and moved to suppress evidence, including the AR-15
rifle.
The
trial court heard the suppression motion in conjunction with the preliminary
hearing. Officers Holton and Jensen
testified. In denying the motion to
suppress, the court found that it was reasonable for the officers to believe
that someone might have been hiding behind the locked bedroom door. Although the court had initially been
concerned with the delay between the start of the protective sweep of the house
and the time the locked bedroom was finally entered, it found that the delay
was sufficiently explained by the officers.
The court stated, “Only after failing to secure the room from any other
source did they make forcible entry to effectuate the protective sweep.â€
Bradley
renewed his motion to suppress after the information was filed. The trial court again denied the motion, finding
the officers had adequately articulated reasons to enter the locked room,
“[w]hether it took five minutes, 10 minutes, 15 minutes or 20 minutes.â€
After
the trial court again denied his motion to suppress, Bradley changed his plea
to no contest to the assault weapon charge.
The other charges were dismissed.
The trial court sentenced Bradley to 16 months in county jail.
II.
DISCUSSION
“The
standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the
trial court’s factual findings, express or implied, where supported by
substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.†(People
v. Glaser (1995) 11 Cal.4th 354, 362.)
Warrantless
searches and seizures inside
a home are presumptively unreasonable under the Fourth Amendment of the United
States Constitution. (People v.
Troyer (2011) 51 Cal.4th 599, 602.)
There are, however, a number of exceptions to this rule, and two of them
are implicated in this case. The first
allows officers to perform a protective sweep without a warrant, and the second
allows officers to search areas under the complete or joint control of a
parolee or probationer who has agreed to warrantless searches as a condition of
supervision.
In this
case, the prosecutor argued that the entry into the bedroom was justified under
both of these exceptions because it was a legitimate part of Steven’s parole
search, and it was part of a lawful protective sweep. The trial court, however, never ruled on
whether the entry was permissible as a part of Steven’s parole search because
it concluded that it was part of a lawful protective sweep. On appeal, the parties limit their arguments
to the correctness of the trial court’s ruling regarding the protective-sweep
issue.
“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.†(Maryland
v. Buie (1990) 494 U.S. 325, 327.) A
protective sweep can be justified by a “reasonable belief†that the area to be
swept harbors a dangerous person. (
articulable facts, together with the rational inferences from those facts. (Id.
at pp. 333-334; see also People v. Celis
(2004) 33 Cal.4th 667, 678 (Celis).)
Bradley
contends the totality of the circumstances failed to justify the protective
sweep of his bedroom. He recognizes that
the parole search of Steven’s house preceded by a protective sweep of the areas
under Steven’s control was “arguably†justified. (See People
v. Ledesma (2003) 106 Cal.App.4th 857, 864 [protective sweep may precede a
probation search]). But he maintains
that the officers needed a warrant to enter his bedroom. He argues that a protective sweep of the
bedroom was unwarranted and unnecessary because the officers knew that Steven
was at the Cotati police station, had reason to believe the bedroom was not
Steven’s because it was locked, had minimized safety risks by posting a deputy
outside the bedroom door, and had not heard any sounds coming from inside the room. He contends that the officers were facing no
real threat, but only an abstract, theoretical possibility of one. (Id.
at p. 866 [abstract theoretical possibility someone dangerous might be inside
residence does not justify protective sweep].)
We
believe, on the contrary, that the safety concerns articulated by Holton and
Jensen were reasonable. Steven had a
history of assaulting law enforcement officers, and his residence was being
searched because he may have been surveilling the home of a police chief in a
nearby town. The officers had reason to
be extra careful. At the hearing on the
motion to suppress, Holton testified, “My concern was that somebody was hiding
inside the bedroom, you know, just it makes your hair on the back of your neck
stand up when you search an entire house, here’s this locked bedroom of a
parolee’s residence who has assaults against law enforcement.†Holton also mentioned that, in his
experience, there is usually someone hiding inside a locked room when he comes
across one during a search.
Other
facts added to the legitimacy of the officers’ concerns about the potential
dangerousness of the locked room. The
odor of marijuana coming from the room raised the possibility that someone was
in it and hiding and may have had weapons to defend cash or drugs. Moreover, officers had found a flare gun and
pepper spray in another bedroom of the house.
While posting an officer outside the bedroom was prudent to help secure
the room, it did not eliminate all threats.
Holton, a firearms instructor and SWAT team member, testified that
bullets fired from inside the room would have gone through the door or the
walls.
The
officers’ reasonable security concerns would not have been eliminated simply
because the officers discovered that Steven, while at the Cotati Police
Department, had said that the bedroom was Bradley’s. First, Bradley’s whereabouts were unknown,
which raised a reasonable possibility that, if the room was his, he was in it. Second, officers are not required to
unquestionably accept the assertion of a suspect—one whose residence is being
searched while he is in custody and has little reason to be cooperative and
truthful—that a locked room in the premises is someone else’s. As Holton pointed out, there was “no
indication that [the bedroom] belonged to . . . anybody else
other that Steven Wolfe saying it belonged to his brother.â€
The
fact that between 10 and 20 minutes elapsed before the officers entered the
bedroom does not render the entry unlawful.
Substantial evidence was
presented to the trial court showing that the delay was explained by Holton’s
practice of being cautious when searching areas of a house that may not clearly
belong to the suspect, and the officers’ efforts to gather information about
the locked room. In any event, nothing
was revealed in those 10 to 20 minutes that alleviated reasonable concerns that
someone with weapons might be hiding in the bedroom.
Bradley
cites Celis, supra, 33 Cal.4th 672 in
support of his arguments. In
found that a protective sweep of a house was unreasonable because the officers
had no information that anyone was inside the house or that anyone associated
with the house was armed. (
here: the officers knew that Steven was
at the police station, they had no knowledge that anyone was in the bedroom,
and there was no indication that anyone associated with the room was armed.
But
the facts in Celis are
distinguishable. In Celis, the police were conducting surveillance on the residence of
a man suspected of transporting drugs in truck tires. When they saw the man rolling a truck tire
down the alley behind his house, they detained him. The officers decided to enter the house after
a detective noted the man’s wife and possibly a “ ‘male juvenile’ â€
lived in it. (Celis, supra, 33 Cal.4th at p. 672.) Under these facts, the Supreme Court
expressed uncertainty that a protective sweep was permissible following the
detention outside the residence. (
issue, and instead found the facts known to the officers “fell short of what [
(Ibid.)
In
contrast to the officers in Celis, supra,
33 Cal 4th 667, Holton and his team were lawfully in the residence, and the
home belonged to a parolee who had a history of violence against law
enforcement officers. A case more on
point is People v. Ledesma, supra, 106 Cal.App.4th
857, in which the court approved a protective sweep in conjunction with a
probation search: “The officers’ safety
concerns were increased by the probable duration of the search, the fact that
it would occur on their ‘adversary’s “turf†’ [quoting
conducting a careful examination of all the nooks and crannies of a
probationer’s bedroom.†(
“turf†’ †is particularly apt to describe the situation here given
Steven’s history of conflict with law enforcement agents.
Bradley
also relies on People v. Ormonde
(2006) 143 Cal.App.4th 282. Once again,
however, the facts of Ormonde involve
an arrest outside of a residence and are easily distinguishable from the facts
in this case. In Ormonde, the police received a domestic violence report, went to
the address they were given (an apartment building), and arrested the suspect
outside the building. A detective on the
scene believed that the suspect had come from a nearby apartment. He decided to enter the apartment because he
felt “ ‘vulnerable’ †and thought somebody might come out with a
weapon, even though there was no information that there was another suspect,
that the victim was in the apartment, or that any weapons were involved. (Id.
at pp. 286-287.) The appellate court
concluded neither the specific facts nor a general apprehension about domestic
violence justified entering the apartment for a protective sweep. (Id.
at p. 295.)
For
the same reasons Celis, supra, 33
Cal.4th 667 is not on point, neither is People v.
Ormonde, supra, 43 Cal.App.4th 282.
The Sonoma County sheriffs’ deputies were lawfully in Steven’s residence
to perform a parole search. And, as
discussed above, they had reasonable and legitimate safety concerns that
justified a protective sweep of the locked bedroom.
We
conclude the trial court properly denied the motion to suppress evidence.
III.
DISPOSITION
The
judgment is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
Penal Code.
Since the brothers share the same surname, they will be identified solely by
their first names throughout the remainder of this opinion.
