Opinion
C039240.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. PAUL SALAS, SR., Defendant and Appellant.
A jury convicted defendant Paul Salas, Sr., of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one) and possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a); count two), and found that he was personally armed with a firearm in the commission of count one (Pen. Code, § 12022, subd. (c)). The trial court found that defendant had suffered two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (c)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to state prison for 15 years.
On appeal, defendant contends his motion to suppress evidence found in the search of a bedroom was erroneously denied. We shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
On October 31, 1999, at approximately 5:00 p.m., Sacramento City Police Officers Laflamme, Hubbard, Prawley and Poley were dispatched to a W Street apartment following a bail bondsmans call for assistance in detaining defendant, a fugitive with an arrest warrant. The bondsman informed Laflamme that he had chased defendant into the apartment, that he had seen a bulge in defendants waistband, and that he thus believed defendant was armed with a gun. The bondsman also provided information about a Chevy automobile that was "believed to be" defendants vehicle.
Laflammes dispatcher confirmed that defendant had an arrest warrant from Yolo County. It was determined that the car was registered to Raphael Hernandez. There was not an apartment manager at the scene.
Officers Hubbard and Poley went to the back of the apartment. Laflamme knocked on the front door, but there was no response. He then telephoned the apartments phone number and spoke to defendant. After they conversed for a few minutes, defendant agreed to come to the front door. Laflamme and two other officers went to the door and defendant opened it. About 5:20 p.m., the officers stepped into the apartment and handcuffed defendant. Laflamme then walked him downstairs.
Laflamme, Hubbard and another officer then made a protective sweep of the two-bedroom apartment for their safety. Believing that defendant had been armed, the officers wanted to ensure that no one would shoot them and that everyone in the house was safe. The officers swept the apartment together, with guns drawn, following their routine of checking each room and everywhere a person could hide, including under beds and in closets and attic crawl spaces. As they did so, they were on the lookout for anything in plain view that would indicate that defendant was involved in other criminal activity.
The sweep was completed in about two minutes, except for one room that was locked from the inside. The officers knocked on its door; stated, "This is the Sacramento police" and "Open the door," and got no response. After about two minutes, the door opened and a woman in the room identified herself as Rene Esquibel. The officers quickly swept that room and stayed in the apartment to run a warrant check on the woman, because her hiding in the bedroom was suspicious. The warrant check revealed a person with a different birth date, which indicated that "Esquibel" was lying. After about 30 minutes, the woman admitted that her real name was Pamela Duffy; this allowed the officers to determine that there was a warrant for her arrest and that she was on searchable probation. Laflamme arrested Duffy. The officers learned that defendant and Duffy had been living there together for four to six months.
Once the officers found out that Duffy was on searchable probation, Laflamme and Hubbard searched the apartment, including the bedroom that defendant and Duffy shared. They found in plain sight a computer, bank check printing materials, an optical scanner, surveillance cameras and monitors. They also found, in various drawers in the room, a loaded .22-caliber pistol, several packages of methamphetamine, syringes, baggies, scales, and spoons with crusted matter on them. A loaded .25-caliber pistol was found in a shoebox in the closet.
The trial court ruled that the officers properly conducted a protective sweep of the apartment based on Maryland v. Buie (1990) 494 U.S. 325 [108 L. Ed. 2d 276, 110 S. Ct. 1093] (Buie), and that the search of the bedroom was lawful based on Duffys probation search clause. The court stated that Buie allows a sweep "if they have reason to believe that someone else may be present [who poses] a danger." The court explained, "behind that locked door, no one knew what was there. It might have been no one behind the door, it might have been 30 people, all armed. There was no way to tell until the door was opened . . . ."
DISCUSSION
Defendant contends his suppression motion should have been granted because (1) the initial search of the apartment cannot be justified as a protective sweep; and (2) the search pursuant to Duffys search clause is a fruit of the unlawful sweep. We are not persuaded.
"In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 969, 997 P.2d 1044; see People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729.)
"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." (Buie, supra, 494 U.S. at p. 327.) 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. This is no more and no less than was required in Terry [v. Ohio (1968) 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868] and [Michigan v. ]Long [(1983) 463 U.S. 1032], and as in those cases, we think this balance is the proper one." (Buie, supra, at p. 334.) Buie later reiterated, "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest 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 arrest scene." (Id. at p. 337.)
Defendant relies on cases in which no articulable facts reasonably suggested the presence of other persons on the swept premises. (See United States v. Chaves (11th Cir. 1999) 169 F.3d 687, 692; United States v. Colbert (6th Cir. 1996) 76 F.3d 773, 778 ["lack of information cannot provide an articulable basis upon which to justify a protective sweep"]; Sharrar v. Felsing (3d Cir. 1997) 128 F.3d 810, 825 [agreeing with United States v. Colbert, supra, 76 F.3d at pp. 777-778 that "no information cannot be an articulable basis for a sweep that requires information to justify it in the first place"].) These cases are inapposite because the officers in the present case had specific articulable facts justifying a protective sweep.
First, the bail bondsman linked defendant to a certain automobile outside the apartment. A registration check evidently showed that the automobile was registered to a person other than defendant. Officer Hubbard testified, "If we see this gentleman running into that apartment, there is a car registered to that apartment, registered to somebody else, well, now we know that there [are] possibly two people in that apartment."
Second, the bail bondsman informed the officers that defendant had "a bulge . . . in his waistband," which indicated to the bondsman that "[defendant] was armed." The bondsman "chased [defendant] into an apartment," but the police did not know whose apartment it was, and there was no manager onsite who could tell them. Officer Laflamme did not "know what happened" when defendant "ran inside that house with the gun." He did know that no gun was found when defendant was arrested and handcuffed.
Taken together, these facts suggest that defendant could have given his gun to the owner of the car, who could have been present in the apartment.
This case is similar to People v. Coffee (1980) 107 Cal. App. 3d 28, 165 Cal. Rptr. 676, in which "the specific and articulable facts which gave rise to the officers belief that yet another suspect might be inside the bungalow were that no gun was recovered from the three suspects who came out and neither of the males was wearing the distinctive hat which had been seen by the clerk at the Vagabond Motel." (Id. at p. 34, italics added.)
Defendant contends that, but for the unlawful protective sweep, the officers would not have known of Duffys presence in her bedroom where the contraband was found. Thus, he contends the discovery of Duffy and her probation search clause are fruits of the poisonous tree. Having rejected the premise that the protective sweep was unlawful, we need not further consider this contention.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., and HULL, J.