Opinion
2d Crim. No. B228459 Super. Ct. No. 2009026185
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR LUIS ENRIQUEZ, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Following a bench trial, appellant Hector Luis Enriquez was convicted of possession of a controlled substance for sale. (Health & Saf. Code, § 11351). The parties stipulated that he had a prior conviction for first degree burglary (Pen. Code, § 459) which constituted a strike within the meaning of sections 667, subdivisions (c)(1), (e)(1), and 1170.12, subdivision (c). The trial court denied probation and imposed the low term of two years in state prison, doubled to four years. Appellant appeals the denial of his motion to suppress evidence. (§ 1538.5.) We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Shooting at El Rio Plaza School
On July 16, 2009, a shooting occurred at approximately 3:00 p.m. at Rio Plaza School in the El Rio neighborhood in Ventura County. Brandon Kelton lived on Helsam Avenue, approximately one-half block away from the school and two blocks from Simon Way. He was walking towards his house when he heard five or six gunshots coming from the direction of the school. A couple of people ran down Helsam Avenue, and others ran towards Simon Way. One person was running and screaming, "'[h]elp me, help me.'" Two people were chasing him yelling something like, "'[y]ou want to disrespect.'"
A gray car almost struck Kelton. It was headed towards the person that was screaming "help me." The driver was female and the vehicle might have been an Acura. It stopped and the person who was fleeing jumped into the car. It pulled into a nearby driveway, tried to pull back out and hit a brick wall next to Kelton's house, damaging the rear passenger side. It accelerated and sped off toward Simon Way.
Kelton did not directly testify to this fact, but it was established through other testimony.
After jumping into his neighbor's yard, Kelton hopped his back fence, called the police and returned to his neighbor's house. Kelton flagged down the first unit he could and explained what had happened. He believed some of his neighbors had also called 911.
Appellant and Yana Ceja were roommates. On the day of the shooting, Ceja was driving by the school in a gray Acura when she saw her brother, Oscar Monduhano, running towards her car. Two people were chasing him, but were far away. She was on Helsam Avenue, near her home on 926 Simon Way. Monduhano yelled at her to stop and jumped inside the car, saying people were shooting at him. Ceja put the car in reverse but lost control and hit a wall on Helsam Avenue. She turned around and sped off in the opposite direction to her home on Simon Way. Also in the car were Ceja's son, sister and nephew.
Monduhano did not testify.
While driving towards her house, Ceja called a friend, Esmeralda, who lived nearby. Esmeralda called 911, reported the shooting and collision and gave Ceja's address to the 911 operator. When Ceja arrived at her house, she parked in the driveway and she and her brother and the other passengers waited there for the deputies to arrive.
Deputy Mark Rush Responds to Simon Way
Dispatch broadcast a report of a car accident and requested units to respond to 926 Simon Way. Deputy Mark Rush arrived at the address. He had heard another broadcast that a gray Acura had recently left the scene of a shooting at Rio Plaza School at a high rate of speed, hit a retaining wall and had possible rear end damage. When Rush reached Simon Way, he saw a vehicle parked in the driveway which matched the description on the broadcast. He contacted dispatch to report he had possibly located the car that had fled the scene of the shooting.
Deputy Rush approached Ceja, who was standing in the driveway. He obtained her name, and learned that she had been driving the Acura. He had not obtained a complete statement from her when other units began to arrive. They began a security sweep of the house. Rush continued questioning Ceja and found that she was not the shooter. He also spoke to Ceja's sister, but did not speak to her brother. At the conclusion of the sweep, Rush informed the other deputies of Ceja's lack of involvement in the shooting.
Deputies Whittaker and Flores Respond to School and Simon Way
Deputy Brian Whittaker is a detective with the gang unit. He responded to the Rio Plaza School following a report of the shooting. Upon his arrival, he began searching the classrooms to make sure the shooter was not inside with the children. He was then contacted by either by radio or on his department-issued cell phone and told to go to Simon Way. He did not recall if he was contacted by his supervisor, Sergeant Schierman, Deputy Solay or Deputy Skaggs. Deputy Victor Flores also responded to the report of a shooting at Rio Plaza School. While at the school he "received information" that a victim vehicle or suspect vehicle was located at Simon Way. Whittaker and Flores proceeded to that address in their separate vehicles.
When Flores arrived at Simon Way, Sergeant Schierman was already on the scene and other deputies were still arriving. Flores began questioning people in the driveway to find out what had occurred. In the front yard were patrol deputies who had responded to the call.
Whittaker arrived at Simon Way and saw 10 to 15 people, including children, standing in the driveway. Deputies Rush and Flores were questioning them. Sergeant Schierman, head of the gang unit, was on the scene along with other members of the gang unit. Schierman briefed them and said they were going to conduct a protective sweep of the house for possible suspects or weapons. Whittaker testified that the purpose of the sweep was to look for a suspect or a victim, and protect the safety of the officers. The concern was that there was possibly a suspect inside the house with a gun who had left the scene of the shooting in the car.
Protective Sweep
After entering the house, Whittaker saw appellant coming out of the shower. There were two loaded hypodermic needles on a nightstand in a bedroom, but Whittaker did not seize them. Appellant got dressed and Whittaker escorted him from the house. Whittaker saw Deputy Flores in the driveway. Flores had completed field interview cards on the people in the driveway, and determined who lived in the house, and the room each occupied.
Whittaker told Flores that he had seen hypodermic needles in one of the bedrooms. Whittaker learned that appellant lived in that bedroom and ran his name through dispatch and discovered that he had an outstanding warrant for violating parole. Deputy Flores arrested appellant and placed him in a patrol car.
Appellant Directs Flores to Contraband
Appellant told Flores that he needed to go back into the house to "get his liquor and his dope" and Flores advised him of his Miranda rights. Appellant said that if Flores allowed him to return to the residence he would show him "where his dope was located."
Miranda v. Arizona (1966) 384 U.S. 436.
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Flores escorted appellant into the house, and he led him into a back bedroom. Two loaded hypodermic needles were on the nightstand. The needles were filled with a brownish liquid. Appellant said that he had intended to inject heroin before the deputies arrived. He told Flores to look on top of the entertainment center. In a white bag, Flores found what appeared to be tar heroin inside several baggies that appellant said was for personal use. He then kicked a bag on the floor and told Flores to look inside. It contained approximately 13 unused hypodermic needles.
Seizure of Contraband
Deputy Terrence Theobald is a reserve deputy. The record does not indicate when he arrived at the scene. Deputy Flores told Theobald that there was suspected heroin in appellant's bedroom. A canine was brought in to search the room and alerted to the presence of drugs. Theobald seized eight baggies of tar heroin, two syringes from the nightstand, a number of loose syringes and $740 in U.S. currency. Each baggie appeared to contain a useable amount of heroin, totaling 92.3 grams.
Deputy Jason Hendren interviewed appellant several days after his arrest. Appellant said that he bought eight half-ounces of heroin every 20 days and paid approximately $1,000. He used about four grams a day. He said he did not sell heroin, and all he possessed was for personal use.
Suppression Motion and Hearing
Appellant filed a motion to suppress any statements he made, as well as observations or physical evidence. (§ 1538.5.) He alleged that the seizure was unlawful because the deputies entered his residence without a search warrant. At the hearing on the motion, the parties stipulated that there was no search warrant at the time of the protective sweep. Appellant was on parole at the time of the search and there was an outstanding warrant for his arrest for absconding from parole. Defense counsel argued that the deputies had no legal justification for entering the residence because there was no information that anyone associated with the gray Acura had entered 926 Simon Way.
The trial court concluded that the protective sweep was justified pursuant to Maryland v. Buie (1990) 494 U.S. 325 (Buie). It stated that the Buie sweep doctrine can apply where there is no arrest and where the officers are conducting an investigation outside the house, such as in the driveway. The court also found that there was no probable cause for entry based on exigent circumstances.
The trial court stated that "I wouldn't go so far as saying the officers had no reason to enter the residence. . . . [T]hey were investigating a vehicle that had been involved in the shooting, and although it became apparent at the conclusion of the investigation, once all the information was collated and collected and sorted by law enforcement, . . . it appeared as though the people in the car that were at the residence were the victims of the shooting. [¶] . . . [¶] I think it would be unfair to saddle [the officers] with what we now see in twenty-twenty hindsight, which appears to be that someone at the school was shooting at this car." The court determined that the deputies had a reasonable suspicion that armed individuals may have entered the residence from the car, justifying the protective sweep. The suppression motion was denied.
DISCUSSION
Appellant argues that law enforcement had no reason to be inside his residence. Rather, their only purpose was to investigate the gray Acura in the driveway. Appellant asserts that the deputies had not arrived at the residence to detain a suspicious individual or to perform a parole search. He points out that the trial court found that there were no exigent circumstances and observes that consent was never offered as a basis for entry. As such, he contends the protective sweep was not justified under the standard articulated in Buie, supra, 494 U.S. 325.
Standard of Review
When reviewing a ruling on a defense motion to suppress evidence, we defer to the trial court's factual findings, but independently apply the requisite legal standard to the facts presented. (People v. Ayala (2000) 23 Cal.4th 225, 255.) "[W]e review de novo the facts most favorable to the People to determine whether the officers' conduct in performing the protective sweep of defendant's home was reasonable under the Fourth Amendment." (People v. Ledesma (2003) 106 Cal.App.4th 857, 862.)
Buie Protective Sweep
Exceptions to the warrant requirement include circumstances in which an officer is in hot pursuit of a fleeing felon, there is a threat of imminent destruction of evidence, a need to prevent a suspect's escape, or a risk of danger to police or others. (Minnesota v. Olson (1990) 495 U.S. 91, 100.) While a warrantless entry of a residence must be supported by probable cause, a protective sweep can be justified by a reasonable, articulable suspicion that the house is harboring a person who poses a threat to officer safety. (Buie, supra, 494 U.S. at p. 336; People v. Celis (2004) 33 Cal.4th 667, 678.)
In Buie, the United States Supreme Court determined that a search warrant was not required for officers to perform a protective sweep of a house. There, the defendant was one of two suspects in an armed robbery. Police entered the defendant's residence pursuant to an arrest warrant and ordered him out of the basement. After he emerged, an officer entered the basement to perform a protective sweep to search for armed individuals. In doing so, he discovered in plain view a red running suit the defendant had worn when he committed the crime. The evidence was admitted and the defendant was convicted of armed robbery.(Buie, supra, 494 U.S. at p. 328.)
Buie held that "as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be 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 arrest scene." (Buie, supra, 494 U.S. at p. 334.)
The Buie court stated, "[w]e should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." (Buie, supra, 494 U.S. at pp. 335-336, fn. omitted.)
A Buie protective sweep conducted prior to a probation search has been upheld where facts known to the officers demonstrated a possible threat to officer safety. (People v. Ledesma, supra, 106 Cal.App.4th at pp. 867-868.) In Ledesma, a protective sweep of probationer's home properly included the nonprobationers' bedrooms because the house was known for narcotics activity, and empty vehicles parked nearby suggested the presence of third parties in the house who might be armed. (Id. at pp. 866-867.)
Following Buie, our Supreme Court concluded that a protective sweep was unlawful where a suspect was detained outside the residence while officers performed a protective sweep inside the house. (People v. Celis, supra, 33 Cal.4th at p.679.) There, officers suspected the defendant of drug trafficking. He was detained outside his house at gunpoint, handcuffed and made to sit on the ground. He was not arrested. The officers then entered the house to see if there was a threat to officer safety. While inside, they discovered cocaine. (Id. at p. 673.)
The defendant moved to suppress the evidence, but his motion was denied. Upon review by the Supreme Court, the matter was reversed and remanded to the trial court for reconsideration of the suppression motion. The ground for reversal was that the officers had surveilled the house several days earlier and learned that the defendant's wife lived with him, and possibly a male juvenile. (People v. Celis, supra, 33 Cal.4th at p. 672.) The officers had no knowledge of facts that would suggest that dangerous persons might be in the house, thus the protective sweep was not justified. (Id. at p. 679.)
Appellant contends that the reasoning in Celis applies to the search of his bedroom. He argues that the deputies lacked articulable facts to suspect a dangerous person might be inside his residence. We reject appellant's argument because the facts supported an inference that the Simon Way house might harbor an armed individual who could pose a threat to officer safety.
A shooting had occurred several blocks from appellant's residence. The police received calls regarding the shooting, which caused deputies Whittaker and Flores to respond to Rio Plaza school. Information was then broadcast that a car picked up an individual fleeing the scene, took off at high speed, crashed into a wall, and sped away. Next, deputies were asked to respond to 926 Simon Way, following report of a vehicle collision. When Deputy Rush arrived at that address, he recognized that the vehicle involved in the collision might be the same one that fled from the school. This fact was then broadcast by dispatch.
Deputies on patrol and deputies searching the school responded to Simon Way. A crowd of people stood in the driveway, including children. At this juncture, it was unclear in what manner the driver or anyone else on the scene was involved in the shooting. The information broadcast to the deputies suggested than an armed suspect could have fled the scene of the shooting in the car. These facts supported a reasonable inference that the shooter or an accomplice could have entered the house in an attempt to hide or flee. Under these circumstances, the deputies could not have afforded the time to interview the numerous individuals in the driveway to determine how the events had unfolded. To do so could have endangered their safety and that of the bystanders, or allowed an armed suspect to flee. We conclude that the deputies had reasonable suspicion to believe an armed person might be in the house. The facts known to the deputies were sufficient to justify a Buie protective sweep.
DISPOSITION
The judgment (order denying motion to suppress) is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
Allan A. Steele, Judge
Superior Court County of Ventura
Lyn A. Woodward, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.