P.v. Moore
Filed 1/18/13
P.v. Moore 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
MAURY
DAVID MOORE,
Defendant and
Appellant.
C065779
(Super. Ct. No. 08F03884)
Police
officers conducted a protective sweep after they arrested defendant pursuant to
a warrant and secured him in a police vehicle.
During that sweep, they found a rifle.
Defendant was charged with possession
of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))
(b)-(i); 1170.12) and service of three separate prior prison terms (§ 667.5,
subd. (b)).
Following
the denial of defendant’s suppression motion (§ 1538.5), he pleaded no contest
to the firearm possession charge and admitted the prior strike conviction in
exchange for the dismissal of the prior prison term allegation and an effective
term of 16 months (eight-month midterm doubled because of the strike) to run
consecutive to a 14-year sentence defendant was then serving.
On
appeal, defendant contends (1) the trial court erred in denying his suppression
motion, and (2) the evidence is insufficient to support the trial court’s
finding the rifle was in plain view during the protective sweep.
We
conclude that the entry into his residence cannot be justified as a protective
sweep and, therefore, his suppression motion should have been granted. Because the observation and seizure of the
rifle were the products of the illegal search, we need not address defendant’s
contention regarding the rifle being in plain view.
FACTS
FROM SUPPRESSION HEARING
On
April 26, 2008, Sacramento City Officer Derick Cannedy responded to a domestic
violence with injuries call at defendant’s apartment. There, Cannedy was met by Giselle Moore,
defendant’s wife, whose face was swollen and cut and bloody. There was also blood on the floor. Giselle said defendant attacked her and then
drove off in a white Ford Expedition.
Giselle told Cannedy that she, her daughter, and defendant resided at
the apartment.
On
May 14, 2008, Officers John Gresham, Ben Spencer, and Johnny Lopez went to
defendant’s apartment to execute a felony arrest
warrant for defendant based upon his attack on Giselle. At that time, Officer Gresham knew that
defendant had prior convictions for manslaughter and felon in possession of a
firearm, and that he drove a white Ford Expedition.
Officer
Gresham knocked on the front door while other officers circled around the
apartment. After “several minutesâ€
Giselle answered the door and identified herself. Officer Gresham told Giselle he wanted to
speak with defendant and asked if defendant could come to the front door. Giselle replied that “nobody was home†and
“[s]he was the only one there.†Officer
Gresham knew this was not true because while Officer Gresham was waiting for
someone to answer the front door, Officer Spencer had told him that he had
observed two people in a back bedroom of the apartment, one of whom looked like
defendant.
Defendant
eventually came to the door and was taken into custody outside the apartment
within “[a]pproximately an arm’s reach†of the apartment door.
Officer
Spencer testified he had taken up a position between a bush and a closed
bedroom window and was able to see into the bedroom through the partially open
slats in the vertical blinds. In the
mirror on a closet door Officer Spencer could see the reflection of a person
whom he thought was defendant, although he was not “one hundred percent†sure. The room was illuminated by the light of a
flickering television. Because it was
safer for the officers to have the person come out rather than the officers go
in after him, Officer Spencer called out to the person that police officers
were there and he should come out. The
person did not respond, but lay on the bed and several minutes later the
television was turned off. After the
television was turned off, Officer Spencer could no longer see the person.
Officer
Lopez was standing by to assist Officer Gresham in case the latter needed aid
in arresting defendant. Officer Lopez
heard defendant’s wife say defendant was not there and she repeated the
statement when Officer Lopez attempted to enter the apartment. Officer Lopez also was told by Officer
Spencer that he had seen an individual who matched defendant’s description, but
that he “couldn’t tell whether it was or was not him.†Officer Lopez was aware that defendant had a
felony warrant for domestic violence and had a felon in possession of a firearm
“charge against him.â€
After
defendant was arrested and taken to a patrol car, Officer Lopez and other
officers entered the apartment. Officer
Lopez explained that based upon defendant’s wife having lied about his not
being in the apartment, his having been violent with his wife, and his prior
weapons convictions, the officers feared that there could have been someone
else hiding in the apartment who could have had access to a weapon to harm the
officers who were still present and so they entered.
When
the officers approached the bedroom in which Officer Spencer had seen someone,
the entry door was “somewhat closed.â€
Officer Lopez “kind of opened†the door and “tried to look behind [it]
to make sure nobody was back there.†The
officers immediately entered and cleared the room. Because there was enough room behind the
entry door to conceal someone, Officer Lopez opened the door and looked behind
to make sure no one was there. That was
when he saw a rifle in plain sight leaning against the wall.
TRIAL
COURT’S RULING
In
denying the motion the trial court stated:
“Basically the facts in this case show that the officers appear there
with an arrest warrant for [section] 273.5.
They know the criminal history, or at least some of the criminal history
of the defendant. [¶] They appear there, told that the person is
not there. An officer sees someone in
the bedroom who he thinks may be the person, and apparently the wife continues
to say that he’s not there. And
eventually he does appear and is arrested at the front door. [¶] I
think the officers do have a right to do a protective sweep, especially of the
room in which they saw persons in, which is my understanding is the same room
as where the gun is found. [¶] On that basis I find there was a lawful
search. The [section] 1538.5 [motion]
will be denied.â€
DISCUSSION
Relying
on Maryland v. Buie (1990) 494 U.S. 325
[108 L.Ed.2d 276] (Buie) and
limit of a protective sweep search, defendant contends that because the
discovery of the rifle was the product of an unconstitutional search of his
apartment, his suppression motion should have been granted. We agree.
LAW RELATING TO PROTECTIVE SWEEPS
“When, as here, we review a ruling
on a defense motion to suppress evidence, we defer to the trial court’s factual
findings, but we independently apply the requisite legal standard to the facts
presented. [Citation.]†(Celis,
supra, 33 Cal.4th at p. 679.)
In
Buie, the seminal case regarding a
protective sweep, the defendant and another man, one of whom was wearing a red
jogging suit, robbed a restaurant.
Officers obtained an arrest warrant for the defendant and executed it at
the defendant’s residence. Once inside,
an officer shouted into the basement for everyone to come out. Defendant did so and was arrested. Another officer entered the basement in case
someone else was down there, and saw in plain sight a red jogging suit which he
seized. (Buie, supra, 494 U.S. at p. 328.)
The Supreme Court upheld the seizure of the jogging suit, stating: “We conclude that the Fourth Amendment would
permit the protective sweep undertaken here if the searching officer ‘possessed
a reasonable belief based on “specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrantedâ€
the officer in believing,’ [citation], that the area swept harbored an
individual posing a danger to the officer or others.†(Id. at
p. 327.)
In
Celis, the court expanded the
protective sweep authorized by Buie
to include a detention made outside the suspect’s home. “From the high court’s decision in
conclusions: A protective sweep of a
house for officer safety as described in Buie,
does not require probable cause to believe there is someone posing a danger
to the officers in the area to be swept.
(Buie, supra, at p. 327.) . . . A protective sweep can be
justified merely by a reasonable
suspicion that the area to be swept harbors a dangerous person. (Buie,
supra, at p. 327.)†(
original italics.)
The
facts of Celis are instructive. There,
law enforcement officers, including Detective John Strain, were investigating a
drug operation whose members were concealing and transporting drugs in large
truck tires. Defendant came under
suspicion and he and his residence were placed under surveillance. Defendant drove to a tire store where he
obtained an air pressurizing tank. Later
that day, he drove to the Mexican border, parked and walked across the border
and the agents lost sight of him. The
next day, accompanied by his wife, defendant drove around San Diego in an
evasive manner. Later defendant returned
to the same tire store where he obtained a deflated tire which was too big for
his vehicle. Still that same day,
defendant, accompanied by Luis Ordaz, returned to the tire store with an air
pressurizing tank, remained a while, then returned to defendant’s residence and
took the tank inside. (
pp. 671-672.)
About
40 minutes later, defendant emerged from his house rolling the previously
deflated tire toward the alley. Ordaz
drove into the alley in a pickup.
Believing the tire contained either money or drugs, Detective Strain,
along with other officers, detained defendant and Ordaz. Because Detective Strain was aware that
defendant lived with his wife and “ ‘possibly a male juvenile,’ †Detective
Strain and other officers entered defendant’s home “to determine if there was anyone
inside who might endanger their safety.â€
No one was found, but inside a wooden box, large enough to conceal
someone, they found packages of cocaine.
(Celis, supra, 33 Cal.4th at
pp. 672-673.)
reasonable suspicion justifying the protective sweep. The court reasoned that because the agents
had not kept track of who was in the house, they lacked knowledge that anyone
else was in defendant’s home. (
679.) Further, neither the defendant nor
Ordaz was armed at the time of the detention and no weapons had been found
during earlier investigations of the trafficking ring. (Id.
at p. 672.) Hence, under all of the
circumstances, the agents had no grounds to reasonably suspect there were other
persons present to threaten their safety.
(Id. at pp. 679-680.)
Here,
when the officers arrived at defendant’s apartment they were aware that
defendant, his wife Giselle, and a daughter lived in the apartment. They also knew defendant had been convicted
of manslaughter and felon in possession of a firearm, and that he had recently
beaten his wife. Thus, at the time the
officers approached defendant’s residence they clearly had good reason to fear
him, but no reason to fear either Giselle or the daughter. However, any basis for such fear totally
dissipated after defendant was handcuffed and placed in a patrol car.
Thus
the issue reduces to whether there were facts known to the officers which would
give rise to a reasonable suspicion that another person was in the residence
who posed a threat of harm to the officers.
Those facts, the People argue, are as follows: Because Giselle lied to the officers about
who was home, a “reasonable officer [would] . . . assume that she may be lying
about the presence of other persons in the apartment.†Although Officer Spencer had seen a person in
the master bedroom whom he believed to be defendant, he could not know for
certain that person was defendant because that person did not respond to
Officer Spencer’s calls for him to come out.
The officers were aware of defendant’s “violent history†and his being
an “ex-felon in possession of a firearm†which presented the “possible presence
of a person†and “possibility of a weapon in the home.†Finally, because the officers were serving a
warrant that “involved violence and severe injury, it was . . . reasonable for
the officers to believe that any individuals located inside the apartment may
also have posed a danger of violent reprisal.â€
The argument is not persuasive.
At
the time the officers went to defendant’s apartment, they were aware that two
adults lived therein -- defendant and his wife.
While at the door of the apartment, Officer Gresham testified he was
told by Officer Spencer that the latter had seen two people in the south
bedroom, one of whom looked like defendant.
Officer Spencer testified only to seeing one person in the south bedroom
whom he believed was defendant, but he “couldn’t make a hundred percent
positive identification at that time.â€
Officer Spencer did not testify to, nor did Officer Gresham claim to
have heard, Officer Spencer state the second person was a male. Indeed, it is inconceivable that if Officer
Spencer had seen two males that the prosecutor would not have elicited such evidence
because that would have settled the issue of the legality of the sweep in the
prosecution’s favor. Though not certain,
Officer Spencer left no doubt that he believed the person he saw was
defendant. We do not see, and the
Attorney General has not shown, how the possibility, in-and-of-itself, that
Officer Spencer could have misidentified defendant can give rise to a
reasonable suspicion that he did so.
That
Giselle lied about defendant being present when she was asked if he could come
to the door shows little more than an attempt by a wife to keep her husband
from being arrested, a not wholly unusual occurrence in domestic violence
cases, but such lying without more says nothing about a dangerous third party
being present.
As
to there being a greater threat of a firearm being present due to defendant’s
prior conviction of felon in possession of a firearm, that threat is
insufficient in the absence of a reasonable suspicion to believe that a third
person was present to use the firearm.
Certainly, defendant was not going to use it -- he was handcuffed in a
patrol car.
Similarly,
the Attorney General’s claim that because the arrest warrant was for a violent
offense it was “reasonable for the officers to believe that any individuals
located inside the apartment may also have posed a danger of violent reprisalâ€
again misses the point. Thus, the
posited danger arises only upon the existence of a reasonable suspicion that
there was another individual in the apartment, which defendant’s dangerousness does
not alone supply. And, even assuming
there were sufficient facts to support a reasonable suspicion there was someone
else inside of the premises, the officers articulated no facts that would
support a belief the person was dangerous.
(People v. Werner (2012) 207
Cal.App.4th 1195, 1206 [The Buie test
requires a reasonable suspicion both that another person is in the premises
evidence that anybody who may have been in the house intended any “ill will†to
the police.†Consequently, the protective sweep was without legal justification
and the suppression motion should have been granted.
DISPOSITION
The
matter is remanded to the Sacramento County Superior Court with directions to
vacate defendant’s plea of no contest to a violation of Penal Code section
12021, subdivision (a)(1), and to grant defendant’s Penal Code section 1538.5
motion to suppress the evidence relating to the rifle found during the search
of his apartment. If the People are
unable to proceed with the prosecution, the trial court is to dismiss the
matter.
NICHOLSON , Acting P. J.
We
concur:
BUTZ , J.
MURRAY , J.
name="_ftn1" title="">[1] Hereafter references
to undesignated sections are to the Penal Code.
