Opinion
A152416
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ETIENNE NATALE URRUTY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16-NF-011661-B)
Defendant Etienne Natale Urruty was placed on probation after he pleaded no contest to two counts of possession of a firearm by a felon and one count of possession of ammunition by a felon. On appeal, he challenges the trial court's denial of his motion to quash a warrant to search his home and his motion to suppress evidence obtained during a warrantless search of his vehicle. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On September 16, 2016, a warrant authorizing a search of Urruty's residence was issued by a magistrate based on an affidavit by San Mateo County Sheriff's Detective Donald Burnett. According to the affidavit, earlier that day Detective Burnett pulled over a man who was driving a car with a badly cracked windshield. The detective immediately recognized the man as Joseph Verducci, whom he knew was on "Search and Seizure Probation."
Detective Burnett was also aware that Verducci had been contacted the week before at a nearby address on Aviador Avenue in Millbrae and had "stated he was living in the back bedroom." After confirming that Verducci still lived there, Detective Burnett and other law enforcement officers took Verducci to the Aviador Avenue residence to conduct a probation search.
Detective Burnett and another detective went to the back of the residence while a sergeant knocked on the front door. No one answered, but Detective Burnett saw "a younger female subject" looking at him from a back window. Detective Burnett announced himself and told her to open the door, but she disappeared. After ascertaining that Verducci did not have a key, the detective entered the house through the back door and announced himself again.
Detective Burnett then "arrived at the garage and noticed a locked door." He knocked on the door and, after he twice announced himself and ordered that the door be opened, he heard "a male voice state, 'We're coming out with our hands up.' " The detective heard the lock unlatch, and he opened the door to see Timothy Obler, whom he knew "from prior law enforcement contacts," sitting with a woman inside a small bedroom. While conducting "a protective sweep of the rest of the small bedroom for additional subjects," Detective Burnett saw "a live .22 caliber round on the top of a dresser," drug paraphernalia, and "numerous different calibers of ammunition and casings." The detective also learned from a records check that Obler was a convicted felon and had an outstanding arrest warrant.
Detective Burnett "continued with the protective sweep . . . and located another locked door in the hallway." Suspicious that "there was another barricaded subject inside," he broke down the door and discovered that it led to a closet. No one was inside, but the detective saw "numerous live rounds of ammunition, rifle cases[,] and magazines" on top of a safe. Verducci then told the detective that Urruty owned the Aviador Avenue house, and a subsequent search of the residence pursuant to the warrant uncovered 17 firearms in the closet safe.
The following day, September 17, 2016, Burlingame Police Officer Brett Leonard pulled over Urruty, who was driving a pickup truck with expired registration tags. After contacting Urruty, Officer Leonard ran a records check and learned he had an outstanding arrest warrant. Urruty "was sweating profusely, speaking rapidly, . . . and appeared constantly fidgety with his hands," and the officer suspected that he was "under the influence of a central nervous system" stimulant. After conducting drug-recognition tests, Officer Leonard concluded that Urruty was indeed intoxicated. The officer arrested Urruty on the outstanding warrant as well as for being under the influence of a controlled substance.
After the arrest, Officer Leonard searched Urruty's person and found a live .22-caliber cartridge in his front pants pocket. The officer then searched the passenger compartment of the pickup truck, which was about 15 to 20 feet from where Urruty was arrested, and found body armor on the front bench seat. "The interior of the body armor was moist to the touch" and Urruty's t-shirt was "drenched in sweat," which led Officer Leonard to believed that Urruty "had been wearing the body armor some time before [the officer] contacted him." The officer then looked in the vehicle's truck bed, where he found 50 ".9 millimeter cartridges of unfired ammunition."
Urruty was charged with 17 felony counts of possession of a firearm by a felon based on the firearms in the safe. He was also charged with two felony counts of possession of ammunition by a felon—one based on the ammunition found in his house, and the other based on the ammunition found after his arrest—and one misdemeanor count of driving under the influence of a controlled substance.
Urruty was charged under Penal Code sections 29800, subdivision (a)(1) (firearm possession) and 30305, subdivision (a)(1) (ammunition possession) and Health and Safety Code section 11550, subdivision (a) (driving under the influence). All further statutory references are to the Penal Code.
Urruty brought two motions under section 1538.5 attempting to exclude the evidence obtained from the searches: a motion to quash the warrant authorizing the search of his residence that uncovered the firearms in the safe, and a motion to suppress the evidence obtained from (1) the initial search of his residence and (2) the post-arrest search of his vehicle. After a hearing at which evidence about only the vehicle search was presented, the trial court denied both motions. The court concluded that Urruty lacked standing to challenge the evidence obtained from the initial search of his residence and, by extension, had failed to demonstrate any deficiency within the four corners of the warrant. It also concluded that the warrantless search of the vehicle was proper because it was incident to Urruty's arrest.
Although the motion to suppress purported to challenge searches on both "September 16 and 17," the statement of facts mentioned only that Urruty "was detained, searched[,] and arrested without benefit of a search warrant." Nevertheless, the motion to suppress was treated below as challenging the initial search of the residence as well.
Under a plea agreement, Urruty pleaded no contest to two counts of possession of a firearm by a felon and one count of possession of ammunition by a felon, all of which were based on the contraband found during the searches of his residence, and the remaining counts were dismissed. The trial court suspended imposition of the sentence and placed him on probation for three years.
II.
DISCUSSION
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Davis v. United States (2011) 564 U.S. 229, 236.) The analysis governing the lawfulness of a search depends in part on whether the search was conducted with or without a warrant. A search conducted with a warrant is "presumed valid," and the defendant has the burden of proving otherwise. (People v. Amador (2000) 24 Cal.4th 387, 393.) But a search conducted without a warrant is presumed invalid, and the People have the burden of proving otherwise. (Mincey v. Arizona (1978) 437 U.S. 385, 390-391.) In his appeal, Urruty challenges the trial court's rulings regarding the September 16 search of his residence pursuant to a warrant, and the September 17 search of his pickup truck conducted without one. Accordingly, we separately analyze the two rulings, both of which "may be challenged by an appeal from the judgment entered after [a] defendant's guilty or no contest plea." (People v. Leath (2013) 217 Cal.App.4th 344, 350; § 1538.5, subd. (m).)
Urruty continues to contend on appeal that the initial warrantless search of his residence was unlawful, in support of his claim that the warrant should have been quashed. He does not, however, challenge the trial court's denial of the motion to suppress evidence from that search on the ground that he lacked standing.
A. The Trial Court Properly Denied the Motion to Quash the Warrant for the Search of the Residence.
We begin by considering Urruty's contention that the trial court wrongly denied his motion to quash, which sought to exclude evidence obtained from the later search of the residence pursuant to the warrant. As described by Urruty, this motion posited that "there was an unlawful warrantless entry and search of his home, which led to the observations [in the affidavit] that could not serve as probable cause for the issuance of a warrant," and therefore "the subsequent search and seizure based upon that warrant were fruit of the poisonous tree." Urruty's contention, in other words, is that the search conducted pursuant to the warrant was unlawful because the supporting affidavit recited information obtained in the earlier, allegedly illegal, warrantless search.
"Probable cause to search exists when, based upon the totality of the circumstances described in the affidavit, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " (People v. Farley (2009) 46 Cal.4th 1053, 1098.) "A defendant moving to quash a warrant asserts the warrant on its face lacks probable cause. [Citation.] ' "[T]he warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit . . . ." ' [Citation.] Because of the strong policy supporting search warrants, deference should be paid to the magistrate's determination of probable cause [citation], especially in close cases." (People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7.) We independently review whether there was a substantial basis for the magistrate's finding of probable cause to support a search warrant. (People v. Camarella (1991) 54 Cal.3d 592, 600-601.) Applying these standards, we have little trouble rejecting Urruty's claim.
In contrast, "[a] defendant moving to traverse a warrant 'mount[s] a subfacial challenge, i.e., attack[s] the underlying veracity of statements made on the face of the search warrant application.' [Citation.] Generally, to prevail on a motion to traverse, the defendant must show: (1) the affidavit contained 'a false statement made "knowingly and intentionally, or with reckless disregard for the truth;" and (2) "the allegedly false statement is necessary to the finding of probable cause." ' " (People v. Heslington, supra, 195 Cal.App.4th at p. 957, fn. 7.)
We begin by addressing the Attorney General's contention that Urruty forfeited the particular claim he pursues on appeal. In the trial court, Urruty argued that the prosecution failed to prove that the law enforcement officers "were reasonable in their belief that Mr. Verducci was an occupant" of the Aviador Avenue residence. On appeal, however, Urruty argues that Detective Burnett's observations, as set forth in the affidavit, were made during a protective sweep whose scope was excessive. The Attorney General argues that because Urruty argued below only that "the initial entry was invalid," the People "had no opportunity to call Detective Burnett to elicit facts surrounding the protective sweep and scope of the probation search."
If Urruty challenged the trial court's denial of the motion to suppress as to the initial search of the residence, we would agree with the Attorney General that the claim was forfeited. (See People v. Oldham (2000) 81 Cal.App.4th 1, 15.) But Urruty contends that the affidavit was defective on its face, and the Attorney General does not explain how the taking of evidence would have been appropriate in ruling on a motion to quash, as opposed to a motion to traverse. We will consider the claim on the merits.
On appeal, Urruty claims that the scope of the search was not justified by either Verducci's probation conditions or the need for a protective sweep. Because we conclude that the affidavit established the warrantless search of the residence was justified as a protective sweep, we need not address whether it was within the scope of Verducci's search condition.
A probation search is among the exceptions to the warrant requirement. (See People v. Woods (1999) 21 Cal.4th 669, 674-675.) This exception generally authorizes a warrantless search of a home occupied by others in addition to the probationer so long as the search is limited to areas over which the probationer has "complete or joint control." (Id. at p. 682.) But a warrantless search of areas of a home over which a suspect does not have control is also permissible when the search is part of a protective sweep. "A 'protective sweep' is a quick and limited search of premises" whose purpose is "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.) Such a sweep is proper "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 . . . scene." (Id. at p. 337.)
Although Maryland v. Buie involved a protective sweep conducted incident to an arrest, subsequent decisions "have clarified that its holding is not limited to arrest situations." (People v. Ledesma (2003) 106 Cal.App.4th 857, 864.) In Ledesma, Division Five of this court held that a protective sweep "may properly precede a probation search." (Ibid.) The decision explained that "[a]mong the circumstances that are appropriately taken into account in evaluating a protective sweep are the type and location of the police action contemplated following the sweep." (Ibid.) If officers are about to conduct a probation search inside a home, there may be heighted safety concerns due to "the probable duration of the search, the fact that it would occur on their 'adversary's "turf" ' [citation], and the inherent distraction of conducting a careful examination of all the nooks and crannies of a probationer's bedroom." (Ibid.)
The facts recited in the affidavit here do not establish that the protective sweep was excessive in scope, much less unwarranted at all. When Detective Burnett went to the back of the Aviador Avenue house as part of an effort to contact any residents, he discovered that there was a woman inside who was being uncooperative. Although Urruty claims that there was no evidence that she posed any danger "requiring immediate entry into the residence," the entry was independently justified by the need to perform a probation search. When Detective Burnett entered and then knocked on the locked door by the garage, he confronted occupants who were also slow to comply with his orders. Finally, upon entering the small bedroom, he saw a large amount of ammunition and casings and discovered that the man inside had a felony conviction and an outstanding warrant. These discoveries unquestionably justified a continued protective search of the premises, including the opening of the closet where another person could have been hiding. In short, there was far more than a " 'mere abstract theoretical "possibility" that someone dangerous might be inside [the] residence.' " (People v. Ledesma, supra, 106 Cal.App.4th at p. 866.) Urruty has therefore failed to carry his burden to show that the warrant lacked probable cause on its face, and we conclude that the trial court did not err by denying the motion to quash.
B. The Trial Court Properly Denied the Motion to Suppress the Evidence Obtained from the Search of the Pickup Truck.
We next turn to consider whether the trial court erred in denying Urruty's motion to suppress the evidence obtained during the September 17 vehicle search. " '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. Redd (2010) 48 Cal.4th 691, 719.) We consider reasonableness under an objective standard without regard to the officer's subjective state of mind. (Scott v. United States (1978) 436 U.S. 128, 138.) And we may affirm a correct decision of the trial court denying a motion to suppress, even if it was based on an erroneous reason, "when 'the record fully establishes another basis for affirming the . . . ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory.' " (People v. Johnson (2018) 21 Cal.App.5th 1026, 1032 (Johnson).)
Urruty does not argue on appeal that he was wrongly pulled over, wrongly arrested, or wrongly subjected to a body search. Rather, he claims only that Officer Leonard lacked justification under any exception to the warrant requirement to search the pickup truck. (See Arizona v. Gant (2009) 556 U.S. 332, 337 (Gant) [warrantless searches are presumed to be unreasonable, " 'subject only to a few specifically established and well-delineated exceptions' "].) The Attorney General disagrees. He argues that the search of the vehicle's passenger compartment was lawful because it fell within the exception for a search incident to an arrest and that the search of the pickup bed was lawful because it fell within the exception applicable to automobiles. The Attorney General has the better argument.
We begin by questioning whether reversal would be required even if we were to conclude that the search of the pickup was unlawful. The only charge arising from the September 17 search was one count of possession of ammunition by a felon. Because Urruty does not claim that the .22-caliber cartridge found in his pants pocket should have been excluded, it is far from clear that he suffered prejudice even if the trial court improperly denied his motion to suppress the evidence of the additional ammunition found in the pickup truck. Nonetheless, we do not decide the prejudice issue, because the parties have not briefed it and we can affirm the trial court's ruling on the merits.
Turning first to the search of the pickup truck's passenger compartment, we agree with the Attorney General that it was lawful as a search incident to an arrest. "A search incident to a lawful arrest is a well-established exception to the general rule prohibiting warrantless searches." (Johnson, supra, 21 Cal.App.5th at p. 1032.) As Johnson explained, Gant "adopted a 'new, two-part rule under which an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) the police have reason to believe that the vehicle contains "evidence relevant to the crime of arrest." ' " (Johnson, at p. 1033, italics added.) A vehicle search incident to an arrest is limited to "the vehicle's passenger compartment and 'any containers therein.' " (People v. Nottoli (2011) 199 Cal.App.4th 531, 555-557; see also Gant, supra, 556 U.S. at pp. 343-344.)
We do not consider whether the search of the passenger compartment was also lawful under the automobile exception to the warrant requirement, an exception we discuss below in connection with the search of the truck bed.
Urruty argues that the search of the pickup's passenger compartment did not qualify as a valid search incident to an arrest because Officer Leonard had not "seen anything suggesting destruction of evidence that required him to conduct a full vehicle search, and none of the areas searched were within Urruty's immediate control at the time the search was conducted." In doing so, Urruty ignores the second part of Gant, under which an "arrestee's inability to access the [vehicle] does not preclude a search . . . if the police reasonably believe it contains evidence of the offense for which the individual has been arrested." (Johnson, supra, 21 Cal.App.5th at p. 1035.) In particular, where, as here, " 'a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence related to that crime might be found in the vehicle. [Citations.] It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver's car.' " (People v. Quick (2016) 5 Cal.App.5th 1006, 1012-1013.) Urruty fails to explain why the offense for which he was arrested did not give Officer Leonard reason to believe that relevant evidence might be found in the vehicle's passenger compartment.
Next, we consider and reject Urruty's argument that Officer Leonard's ensuing search of the bed of the pickup truck was unauthorized under the automobile exception to the warrant requirement. Under this exception, "[i]f there is probable cause to believe a vehicle contains evidence of criminal activity," law enforcement officials may search "any area of the vehicle in which the evidence might be found." (Gant, supra, 556 U.S. at p. 347.) In determining whether there was probable cause for the warrantless search, we apply a totality-of-the-circumstances test. (Illinois v. Gates (1983) 462 U.S. 213, 230-231, 238.)
Here, the totality of the circumstances show that Officer Leonard had probable cause to believe the pickup bed contained evidence of criminal activity. Even before he searched the passenger compartment, Officer Leonard had found a .22-caliber cartridge in Urruty's pocket and learned that Urruty had an outstanding arrest warrant. Although we need not decide whether these facts alone provided probable cause to search the pickup bed under the automobile exception, a case could be made that they did since it is unlawful to drive a vehicle with a loaded firearm. (§ 25850, subd. (a).) But even assuming Officer Leonard lacked probable cause to search the truck bed before he searched the passenger compartment, he certainly acquired it upon searching that compartment and finding the recently worn body armor. (See People v. Dey (2000) 84 Cal.App.4th 1318, 1322 [marijuana in passenger compartment provided probable cause to search trunk].) In short, the search of the truck bed was lawful under the automobile exception to the warrant requirement, and the trial court properly denied Urruty's motion to suppress.
Because Officer Leonard had probable cause to believe that Urruty might have been driving with a loaded firearm, we need not address Urruty's argument that Officer Leonard lacked probable cause because no evidence was presented that the officer "knew Urruty had any convictions that prevented him from possessing ammunition." Similarly, because we have concluded that the search of the pickup was lawful under the search-incident-to-arrest and automobile exceptions to the warrant requirement, we need not address Urruty's arguments that the search was unauthorized under other exceptions. --------
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.