Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE280127, Peter C. Deddeh, Judge.
HALLER, Acting P. J.
Brigitte Dudley pleaded guilty to possession of methamphetamine for sale and possession of methamphetamine. On appeal, she contends the trial court erred in denying her motion to suppress evidence seized by the police at her residence during a protective sweep. We reject this contention and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2008, the police acquired information that a male at a residence might have stolen a vehicle and that a female at the same residence might be selling drugs. Police detectives went to the residence and, during a protective sweep inside the residence, found Dudley in possession of methamphetamine and other indicia of drug sales. Dudley was arrested and charged with possession of methamphetamine for sale and possession of methamphetamine. Dudley moved to suppress the evidence seized by the police at her residence, contending that the warrantless entry and search of her residence was unlawful.
At the suppression hearing, Detective Robert Paul Wining described the events leading to the search at Dudley's residence. He testified that on the morning of May 2, the police went to a residence and found a stolen vehicle parked there. The police received information indicating that James Smith may have stolen the vehicle and that Smith was staying at a different residence located on 52nd Street. The police also had information "that the lady [who] lived [at the 52nd Street residence] may be involved in drug sales."
The police then went to the 52nd Street residence to look for Smith and investigate the auto theft. The detectives arrived at the residence at about 9:00 a.m., where they encountered a man who was leaving the house. The officers spoke to the man, and the man told them Smith was sleeping on the couch.
Three officers went to the front door of the residence. The officers were dressed in plain clothes and did not have their guns drawn. The officers knocked on the door, and Dudley's 19-year-old daughter (Heather Raus) opened the door. When Raus opened the door, Wining saw Smith laying on a couch directly behind Raus. Wining's police badge was hanging on his shirt, and his normal practice is to say he was from the police department. Wining pointed to Smith and stated to Raus, "I'd like to come in and talk to this guy." Raus stepped out of the way and the officers entered the home. Smith, who was awake, did not say anything objecting to their entry.
Detective Wining could not specifically recall whether he said this to Raus, but he testified that he "normally always [said] 'police department.' "
The officers detained and ultimately arrested Smith in the living room. Meanwhile, Wining conducted a protective sweep of the residence to "make sure that there [were] no other threatening people in the house." When he walked into the first bedroom around the corner from the living room, he found Dudley asleep on a bed. Wining called out to her, stating that it was the police department. Dudley looked at him, appearing startled. She then flipped over on the bed and grabbed something off the headboard. Not knowing what she grabbed, Wining pointed his gun at her and said, "Police, let me see your hands." After repeating this several times, Wining ran into the bedroom, holstered his gun, and grabbed her arms. With the assistance of another officer, Wining separated Dudley's hands to make sure she was not holding a weapon. While the other officer held her left hand, Wining opened her right hand and retrieved a bag of methamphetamine. The police detained Dudley in the living room, and then arrested her.
At the preliminary hearing (held prior to the suppression hearing), Detective Wining also testified that after finding the methamphetamine, he conducted an "arm's reach" search to see if there were any weapons in the area. During this search he found a digital gram scale. Other items (including a second digital gram scale, a box of baggies, and a "pay and owe" note) were later found in Dudley's bedroom, apparently after she gave consent to search. Apart from her overall challenge to the police entry into the residence and into her bedroom, Dudley does not challenge these subsequent searches.
Dudley's daughter, Raus, testified on behalf of the defense. She stated that she was in her bedroom when she heard a knock on the door. When she went to answer the door, Smith was sitting on the couch. Before opening the door, Raus asked who was there, and she heard the response "Bob." Raus looked through the door's peephole and saw the back of two men's heads. She again asked who was there and again heard "Bob." She opened the door because she thought it was one of her mother's friends.
Raus testified that the police were not dressed in their uniforms, but they had their guns drawn and pointed toward the ground. The police lifted up their badges and asked where Jimmy Smith was. Raus looked behind her at Jimmy. The police "asked [her] to sit down on the couch, " and Raus complied. The police then entered the residence, put handcuffs on Smith, and told him he was being arrested for grand theft. The police asked Raus if there was anyone else in the house, and she told them her mother was asleep in her bedroom. The police entered her mother's room and brought her out in handcuffs.
Raus testified she did not invite the police in or give them permission to enter or search the house. She testified that she sat down on the couch because "they are police officers and [she] figured [she] needed to."
To support her suppression motion, Dudley argued Raus did not give voluntary consent because the police did not request entry and Raus's conduct of stepping aside was ambiguous. Alternatively, Dudley asserted that even if there was voluntary consent, there was no justification for the protective sweep because the entry was for a detention, not for an arrest. In opposition, the prosecutor contended Raus gave the police consent to enter, and once the police were lawfully inside the residence they had a right to perform a protective sweep for dangerous persons because they were detaining and arresting Smith and they were aware there might be drug sales activity in the home.
The court denied the suppression motion. The court found the officers entered the home in response to Raus's conduct of stepping aside, and it was reasonable for them to assume they could walk into the house to contact Smith. Further, once inside the home they were entitled to conduct a protective sweep based on a concern that there were others in the home. The court stated the protective sweep was justified because the officers were in the home to contact a suspect who was ultimately arrested, and because the officers suspected there were drugs in the house.
After her suppression motion was denied, Dudley pleaded guilty as charged and received probation with a requirement that she serve one year in jail, which custody was stayed pending appeal. On appeal, Dudley challenges the denial of her suppression motion.
DISCUSSION
When reviewing a challenge to a suppression ruling, we defer to the trial court's express and implied factual findings if they are supported by substantial evidence, and we exercise our independent judgment in determining whether, on the facts so found, the search and seizure was reasonable under the Fourth Amendment. (People v. Woods (1999) 21 Cal.4th 668, 673-674; People v. Glaser (1995) 11 Cal.4th 354, 362.) Because the trial court is the finder of fact in a proceeding to suppress evidence, the trial court is "vested with the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences...." (People v. Woods, supra, at p. 673.) On appeal, we resolve all factual conflicts in the manner most favorable to the trial court's ruling. (Ibid.)
Dudley contends the record does not support the trial court's finding that Raus gave the police consent to enter their home. Alternatively, she contends that even if the police had consent to enter, there was no justification for the protective sweep.
Consent
A warrantless entry by the police into a home presumptively violates the Fourth Amendment proscription against unreasonable searches and seizures. (People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The prosecution can overcome the presumption of unlawfulness by showing by a preponderance of the evidence that voluntary consent to enter was given by a person who possesses authority over the premises. (Frye, supra, at p. 989; People v. James (1977) 19 Cal.3d 99, 106 & fn. 4.)
A person's consent must be the product of free will and not a mere submission to an express or implied assertion of authority. (People v. James, supra, 19 Cal.3d at p. 106.) Consent to enter may be expressed by actions as well as words. (People v. Harrington (1970) 2 Cal.3d 991, 995.) The voluntariness of consent is a question of fact to be determined in light of all the circumstances. (People v. James, supra, at p. 106.) The standard is objective reasonableness; i.e., what would a reasonable person have understood by the interaction between the officer and the person? (See People v. Cantor (2007) 149 Cal.App.4th 961, 965.)
Drawing all inferences in favor of the court's ruling, we assume the court credited Detective Wining's version of what occurred. According to Wining, when Raus opened the door, the police displayed no weapons. Wining told Raus he would "like to come in" and talk to Smith. Raus then stepped aside and the officers entered. The police did not engage in any physical display of force, and there are no facts suggesting they used a demanding tone of voice when stating they wanted to speak to Smith. Given the absence of physical or verbal force, the record supports the court's finding that a reasonable person would not view the encounter as coercive and would construe Raus's conduct of stepping aside as giving permission to enter. (See People v. Harrington, supra, 2 Cal.3d at pp. 996-997 [voluntary consent supported by facts that officer did not unholster gun or engage in any other potentially coercive action and occupant made gesture indicating permission to enter]; People v. Martino (1985) 166 Cal.App.3d 777, 791 [voluntary consent supported by facts that officer concealed drawn gun behind his leg and occupant stepped back and opened door wider].)
Dudley argues that the court's consent finding was erroneous because the officers made no request for entry. Although an explicit request for entry is a factor supporting voluntariness (see People v. Rivera (2007) 41 Cal.4th 304, 311), the absence of an express request does not necessarily show involuntary acquiescence. Again, there are no facts suggesting that the officers forcefully demanded entry. It was the trial court's role to determine what inferences to draw from the nature of the officer's statement to Raus about entry. The officer's statement that he would "like" to enter can reasonably be construed as a request—expressing a desire—rather than a demand. The trial court was not required to find involuntariness even though the officer did not make an explicit request to enter.
To support lack of consent, Dudley cites People v. Superior Court (Peck) (1974) 10 Cal.3d 645, noting that in that case the court stated the act of stepping back did not unambiguously express consent and might have been mere deference to an apparent assertion of authority. In Peck, the California Supreme Court affirmed a trial court's finding of no consent, based on the ambiguous nature of the conduct of stepping back, as well as the occupant's testimony refuting that he stepped back to permit entry. (Id. at p. 649.) In contrast here, we are reviewing a trial court's ruling finding consent. Because the trial court's finding of consent is supported by substantial evidence, we defer to that factual conclusion. (People v. James, supra, 19 Cal.3d at p. 107.)
Indeed, in Peck our high court noted that had the People, rather than the defendant, prevailed before the trial court, the officer's testimony that the defendant stepped back and opened the door wider in response to the officer's request for entry would have provided substantial evidence to support a finding of implied consent to enter. (Peck, supra, 10 Cal.3d. at pp. 648-649.)
Dudley also asserts the trial court's consent finding is unsupported because during the suppression hearing the court stated that the prosecution's version of the facts could be interpreted either to mean Raus stepped aside because she was intimidated by the police, or she stepped aside to give consent. Dudley posits that "where the [trial] court acknowledges two distinct interpretations of the evidence, the prosecution has not met its burden of proof by a preponderance." The contention is unavailing. The fact that at one point the trial court acknowledged two possible interpretations does not mean it ultimately concluded both interpretations were of equal weight. To the contrary, by finding there was consent, the court impliedly concluded this was the more convincing interpretation of the facts. Second, to the extent Dudley is alluding to the rule that a trier of fact must find in the defendant's favor if one reasonable interpretation of the circumstantial evidence points in that direction, this standard is applicable when the burden of proof is beyond a reasonable doubt. (See People v. Johnwell (2004) 121 Cal.App.4th 1267, 1272-1274.) In contrast, when, as here, the burden of proof on an issue is preponderance of the evidence, the prosecution need not exclude all other reasonable interpretations but need show only that its version of the facts is more likely than not the true version. (See id. at p. 1274; see also Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) The record supports the court's finding that it is more likely than not that Raus gave voluntary consent, and the fact that the court recognized another possible reasonable interpretation of the facts does not show the prosecution failed to meet its burden of proof.
The court made this comment in response to defense counsel's assertion that based on the evidence presented by the prosecution the consent was, at best, equivocal. The court stated, "I don't know about equivocal, I think it's subject to two interpretations, and one interpretation is that she was stepping aside to give consent. And the other—or stepping aside to let them come in and then the other is she was stepping aside because she was intimidated."
The record supports that the police lawfully entered Dudley's residence based on consent.
Protective Sweep
When the police are lawfully inside a home, a protective sweep of the residence is permissible based on a reasonable suspicion that there is a dangerous person present. (People v. Celis (2004) 33 Cal.4th 667, 678.) The protective sweep may not be based on a mere hunch, but must be supported by specific "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the... scene." (Maryland v. Buie (1990) 494 U.S. 325, 334.) The courts evaluate the totality of the circumstances to see whether there was a particularized and objective basis for the officer's suspicion. (People v. Ledesma (2003) 106 Cal.App.4th 857, 863; see People v. Wells (2006) 38 Cal.4th 1078, 1083.)
A protective sweep must be limited "to a cursory inspection of those spaces where a person may be found, " and must not last longer than necessary to allay the reasonable suspicion of danger and to complete the purpose for being on the premises. (Maryland v. Buie, supra, 494 U.S. at pp. 335-336; United States v. Miller (2d Cir. 2005) 430 F.3d 93, 100; United States v. Gould (5th Cir. 2004) 364 F.3d 578, 587.) However, if a person is found during the protective sweep, the police may detain and search the person to the extent reasonably necessary to ensure safety. (United States v. Scroggins (5th Cir. 2010) ___ F.3d ___, [2010 U.S.App. LEXIS 4551].) Further, if during the sweep circumstances develop which create probable cause and exigencies justifying further seizures or searches, the police may lawfully carry out these additional operations. (See Maryland v. Buie, supra, 494 U.S. at p. 330; United States v. Patrick (D.C. Cir. 1992) 959 F.2d 991, 997, 999 [during protective sweep police lawfully seized incriminating item in plain view, which item provided probable cause to arrest and to conduct search incident to arrest and to prevent destruction of evidence]; United States v. Miller, supra, 430 F.3d at p. 102; see also People v. Ledesma (2006) 39 Cal.4th 641, 704.)
Here, the officers lawfully entered the residence after obtaining Raus's consent, and they were in the process of detaining and arresting Smith based on their belief that he had committed auto theft. They also had information that a woman who lived at the residence might be engaged in drug sales activity. The courts have recognized that a protective sweep may be justified when the police reasonably believe that there is another person in a residence where narcotics activity is occurring. (See, e.g., People v. Ledesma, supra, 106 Cal.App.4th at p. 865 [protective sweep justified because firearms are tools of trade of narcotics business and police had reason to believe other persons were inside residence]; United States v. Patrick, supra, 959 F.2d at p. 996; compare People v. Celis, supra, 33 Cal.4th at p. 679 [no justification for protective sweep after police detained defendant outside residence for narcotics activity; at time of sweep police had no knowledge of presence of other persons in residence]; United States v. Moran Vargas (2d Cir. 2004) 376 F.3d 112, 116 [no justification for protective sweep based merely on generalized suspicion of narcotics activity but without basis to believe another person was inside residence].) The information acquired by the police informed them that there could be another person inside the residence and that this person might be engaging in an activity (drug sales) that is frequently associated with violent confrontations. These were specific and articulable facts that would warrant a reasonable officer to believe a dangerous individual might be at the residence.
The police were not required to conclude that the 19-year-old female (Raus) who answered the door was necessarily the woman who sold drugs. Moreover, according to Raus, she told the police her mother was in a bedroom.
Knowing that a person dealing drugs might be present in the home and that persons selling drugs may have weapons to protect themselves and further their illegal activity, it was reasonable for the police to perform a cursory sweep through the house to ensure that no one would jeopardize their safety while they completed their detention and arrest of Smith in the living room. Under these circumstances, it would have been unreasonable to expect the police to simply stay in the living room and run the risk of "an ambush in a confined setting" of a home. (Maryland v. Buie, supra, 494 U.S. at p. 333.) Once the officer observed Dudley in the bedroom, he was authorized to detain her until the police completed their business with Smith. Further, to ensure officer safety, the officer reasonably searched her clenched fist in response to her grabbing an object and hiding it in her hand upon his entry into the bedroom.
Dudley asserts a protective sweep of a residence is permissible only if the sweep is incident to an arrest inside the house. (See Maryland v. Buie, supra, 494 U.S. at p. 333 [protective sweep permissible as incident to in-home arrest].) The record is not fully developed on the issue of whether the police had probable cause to arrest Smith upon their initial entry into the home. At the suppression hearing, Detective Wining testified that he was not the detective in charge of the auto theft investigation and he was not certain whether there was probable cause to arrest Smith when they first entered the residence. The detective identified by Wining as the person in charge of the auto theft investigation did not testify at the suppression hearing. Raus testified that when the police entered the residence they handcuffed Smith and told him he was under arrest.
In any event, assuming arguendo the protective sweep cannot be construed as incident to a lawful arrest, numerous courts have concluded that a protective sweep is proper as long as the police are lawfully inside the residence and there is a reasonable suspicion of danger, regardless of the reason for the entry. (People v. Ledesma, supra, 106 Cal.App.4th at p. 864; United States v. Martins (1st Cir. 2005) 413 F.3d 139, 149-150; United States v. Gould, supra, 364 F.3d at pp. 584-586; United States v. Miller, supra, 430 F.3d at pp. 98-100; United States v. Taylor (6th Cir. 2001) 248 F.3d 506, 513; United States v. Garcia (9th Cir. 1993) 997 F.2d 1273, 1282; United States v. Patrick, supra, 959 F.2d at pp. 996-997.) We agree with this conclusion. As explained in Miller: "The restriction of the protective sweep doctrine only to circumstances involving arrests would jeopardize the safety of officers in contravention of the pragmatic concept of reasonableness embodied in the Fourth Amendment." (United States v. Miller, supra, 430 F.3d at p. 100.) Thus, regardless of the purpose of police entry into a residence, "the key is the reasonableness of the belief that the officers' safety or the safety of others may be at risk." (United States v. Martins, supra, 413 F.3d at p. 150; see State v. Bell (La.App. 4 Cir. 2009) 28 So.3d 502 [protective sweep not justified after entry to arrest for nonviolent misdemeanor and after suspect was secured and removed from residence].)
In Celis, the California Supreme Court noted the question of whether a protective sweep must be incident to an arrest, but did not need to reach the issue on facts showing there was no reasonable suspicion justifying the protective sweep (i.e., an arrest outside the residence for narcotics activity with no knowledge that there were persons inside the residence at time of sweep). (People v. Celis, supra, 33 Cal.4th at pp. 678-679.)
We note that in United States v. Davis (10th Cir. 2002) 290 F.3d 1239, 1242, fn. 4 and United States v. Reid (9th Cir. 2000) 226 F.3d 1020, 1027, the courts made statements suggesting a protective sweep must be incident to an arrest. However, in those cases the entry into the home was illegal, and the courts did not discuss whether a legal entry into a home for a purpose other than an arrest could support a protective sweep. (See discussions in United States v. Gould, supra, 364 F.3d at p. 586, fn. 6 and United States v. Davis (2008) 588 F.Supp.2d 693, 702-703.)
Dudley also argues there was no showing that the officers had a reasonable suspicion that drug sales activity was occurring at her residence. To the contrary, as stated, Detective Wining testified that the police had information that the woman who lived at the home may be selling drugs.
To the extent Dudley is challenging the reliability of the officers' information concerning drug activity (see People v. Rivera, supra, 41 Cal.4th at p. 308 [reliability of tip is relevant to reasonable suspicion determination]), we conclude Dudley has not sufficiently preserved this claim for review on appeal. In its written opposition to the suppression motion, the prosecutor described the source of the police information that there was drug activity at the home, stating that the police had acquired this information from the occupants of the residence where they went before going to Dudley's residence. A citizen's report of criminal activity given to an officer in a face-to-face communication can be a reliable basis for an officer to formulate reasonable suspicion. (People v. Coulombe (2000) 86 Cal.App.4th 52, 59; United States v. Valentine (3d Cir. 2000) 232 F.3d 350, 354 ["when an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor"]; see also People v. Wells, supra, 38 Cal.4th at p. 1083 [reasonable suspicion—which can arise from less reliable information than required for probable cause—can be created from citizen's tip].) Thereafter, at the suppression hearing, Detective Wining testified that the police had information that a woman was selling drugs at the residence, but he was not asked to describe how the police acquired this information. After his testimony, while the parties presented their arguments to the court, the prosecutor and trial court made statements reflecting their assumption that the officers were aware that there might be drug activity at the residence. Although in the defense reply memorandum defense counsel had briefly raised a challenge to the reliability of the drug sales information, at the suppression hearing defense counsel never argued that the information was unreliable and never questioned the prosecutor's and trial court's assumptions that the protective sweep should properly be evaluated in light of the drug sales information.
In its opposition memorandum, the prosecution stated that on the morning of May 2 the detectives were at a La Mesa residence conducting a probation search. When the police discovered a stolen vehicle parked in the driveway of the La Mesa residence, the occupants of that residence told them that Smith brought the car there; Smith lived at a residence on 52nd Street in San Diego; and a woman living with Smith might be engaged in the sale of controlled substances at the 52nd Street residence.
When Detective Wining testified that the police had information that a woman living at the residence might be selling drugs, defense counsel objected to the testimony as hearsay and asked that it be stricken. The trial court overruled the objection, stating that it was relevant to explain what the police did at the house.
The prosecutor argued that the police had a reasonable suspicion of danger because they were "aware that there is drug traffic and drug sales going on in" the residence. Similarly, the trial court commented, "If these officers have a right to be in the house, then they have the right to do a protective search, given the fact that there's drugs suspected of being in the house, et cetera."
In the defense reply memorandum, Dudley posited: "The prosecution references an uncorroborated claim that drugs were being sold from the residence, with no source given for this bald accusation."
In People v. Williams (1999) 20 Cal.4th 119, 130, our high court held that although the prosecution always has the burden to prove that a warrantless search or seizure was reasonable, once the prosecution has offered a justification for a warrantless intrusion the defendant must raise any arguments as to why the justification was inadequate or risk forfeiting the issue on appeal. The Williams court explained that if a defendant detects a critical gap in the prosecution's proof concerning its justification for the warrantless intrusion, the defendant should raise the issue before the trial court, and the defendant can not properly "remain[ ] completely silent until the appeal about issues the prosecution may have overlooked." (Id. at pp. 130-131.)
Once the prosecution offered its justification for the protective sweep based on the officers' awareness of the possible drug sales activity, it was incumbent upon Dudley to forthrightly challenge the reliability of the information if she wanted to preserve this claim on appeal. Although defense counsel made a passing reference to lack of reliability in the defense reply memorandum, at the suppression hearing defense counsel was silent concerning the reliability of the drug sales information even though the trial court was explicitly relying on this information when evaluating the lawfulness of the protective sweep. A party who fails to make an effort to obtain a hearing or ruling on an issue may be deemed to have waived or abandoned the issue. (People v. Braxton (2004) 34 Cal.4th 798, 813; People v. Brewer (2000) 81 Cal.App.4th 442, 459-462.) Application of this principle is appropriate here because if Dudley had pursued the issue of reliability at the suppression hearing, the prosecutor could have elicited further details from Detective Wining concerning the acquisition of the drug sales information. Having failed to do so, and because the record does not suggest the source of the information was inherently suspect, we conclude Dudley failed to preserve the issue for appellate review.
Given our holding based on the drug sales information, we need not decide whether the detention and/or arrest of Smith for auto theft could support a reasonable suspicion of danger warranting a protective sweep.
The trial court did not err in denying the suppression motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J. O'ROURKE, J.