Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCD192500, SCD195612 David J. Danielsen and Kerry Wells, Judges. Affirmed in part, reversed in part and remanded with directions.
McINTYRE, J.
Robert Arthur Smith appeals a judgment arising out of his pleas of guilt to multiple drug-related offenses in two separate criminal proceedings (SCD192500 & SCD195612). He contends that the trial court erred in (1) denying his motion to suppress evidence seized by police during unlawful searches of his home and relied upon by the prosecution as the basis for the charges in SCD195612; and (2) imposing a consecutive sentence on one of the counts in SCD192500 in violation of Blakely v. Washington (2004) 542 U.S. 296. We agree with Smith's first contention and reverse the judgment as to the counts charged in SCD195612 on that basis. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, police obtained a search warrant authorizing their search of Smith's home for controlled substances and items associated with the use, sale or transportation of such substances. The next day, the police arrested Smith in a parking lot near his home after he sold cocaine to an undercover officer and then went to his home to execute the warrant. There they found approximately 900 grams of cocaine, various pills and roughly $41,600 in cash, as well as scales, paysheets and a loaded firearm. Smith was charged with two counts of selling cocaine, one count of possessing cocaine for sale and one count of possessing 28.5 grams or more of cocaine for sale, but was released on bail.
In December 2005, two police officers, four fire department personnel and two paramedics responded to emergency calls regarding a violent disturbance involving a man and a woman and a woman screaming for help, on the block where Smith lived. The police officers found Australia Dunford standing in Smith's front yard; she was in a hysterical state, screaming and yelling obscenities, and her face was bleeding. Smith was sitting in the grass in front of the house; he had a gash on his head and bruising on his abdomen.
As the first two officers worked with Dunford, two more officers arrived at the scene and began talking to Smith. When asked what happened, Smith told Officer Nicholas Kelbaugh that he and Dunford had had a physical altercation, although Officer Kelbaugh had a hard time understanding some of what he said because he was mumbling. Smith told another officer that Dunford had stabbed him with scissors and that he thought the scissors were in the house; he repeatedly told the officers, however, that he did not want them to go inside.
Notwithstanding Smith's statements, two officers entered the house and looked around. During their search, one of the officers opened a bedroom closet and saw narcotics sitting on a shelf. Smith was thereafter arrested and advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 and he signed a written consent to a search of the house, during which officers found the scissors and additional controlled substances. Smith was charged with two counts of possessing cocaine, one count each of possessing hydrocodone, codeine, psilocin/psilocybin, diazepam and carisoprodol, one count of possessing 28.5 grams or less of marijuana and one count of being under the influence of diazepam and was again released on bail.
Smith moved to suppress the evidence obtained in the December 2005 search on the grounds that that warrantless search was not based on probable cause and violated his Fourth Amendment rights and that his consent to the followup search was illegally obtained. The court, however, disagreed, finding that under the circumstances it was reasonable for the officers to believe there might have been other victims or other suspects inside the house and thus they were entitled to conduct a warrantless search of the home to confirm whether that was the case. The court denied the motion and Smith thereafter pled guilty to all charges against him. The court sentenced Smith to a total term of 9 years, 8 months in prison. He appeals.
DISCUSSION
1. The Initial December 2005 Search
"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445 U.S. 573, 586.) Indeed, "the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed'" and the requirement of a warrant "minimizes the danger of needless intrusions of that sort." (Id. at pp. 585-586.) The warrant requirement is not absolute, however, and the presumption of unreasonableness that attaches to a warrantless entry into one's home is overcome in a few "specifically established and well-delineated" circumstances. (People v. Thompson (2006) 38 Cal.4th 811, 817-818.) In a criminal case, the prosecutor bears the burden of showing that a warrantless search was proper. (People v. Sirhan (1972) 7 Cal.3d 710, 741, overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7.)
Here, the trial court found that the warrantless search in this case was permissible under both the protective sweep and community caretaking exceptions to the warrant requirement. On appeal, we review the trial court's ruling as a mixed question of law and fact; we must accept the trial court's factual findings so long as they are supported by substantial evidence, but independently determine the applicable law and apply constitutional principles to the facts. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
A. Protective Sweep
In accordance with the protective sweep exception to the warrant requirement, police officers who make an in-home arrest may, "as [a] precautionary matter and without probable cause, " constitutionally search the house to ensure that it is free from other suspects who may wish to do them harm. (Maryland v. Buie (1990) 494 U.S. 325 [in home arrest].) There is a split of authority as to whether the protective sweep exception applies where, as here, officers arrest or detain a suspect outside the home. (See People v. Celis (2004) 33 Cal.4th 667, 678-679 (Celis), & cases cited therein.) There is no question, however, that the exception is inapplicable unless there are "articulable facts, " and rational inferences therefrom, to support a reasonable suspicion on the officers' part that the area to be swept harbors a person who poses a danger to them or others. (Id. at pp. 679-680.) Because there were no such "articulable facts" present in this case, we conclude that the protective sweep exception is inapplicable on that basis, without reaching the broader issue of whether the exception applies to an out-of-home arrest or detention. (See id. at p. 679.)
In determining whether the officers had sufficient facts on which to justify their warrantless search of Smith's home, the California Supreme Court's decision in Celis is instructive. There, law enforcement officers investigating a state-wide drug trafficking ring they suspected of concealing and transporting drugs inside large truck tires set up surveillance of the defendant's house. (Celis, supra, 33 Cal.4th at p. 672.) On the second day of their surveillance, the police detained the defendant as he was rolling a large truck tire, which the officers suspected to hold either cocaine or money, toward a truck waiting in the alley behind his house. (Ibid.) The officers'surveillance revealed that the defendant's wife and "possibly a male juvenile" lived with the defendant, but the officers had not kept track of who was in the house at any given time. (Ibid.)
After detaining the defendant, the officers entered the house without a warrant, ostensibly "to determine if there was anyone inside who might endanger their safety." (Celis, supra, 33 Cal.4th at p. 672.) They did not find anyone inside but discovered a box large enough to conceal a person that held large packages of cocaine. (Id. at pp. 672-673; see generally Maryland v. Buie, supra, 494 U.S. at pp. 327, 333-335 [because the protective sweep exception is permitted for the limited purpose of protecting officer safety, the scope of the search itself must be limited to a quick and cursory visual inspection of portions of the premises where a person might hide].)
On these facts, the California Supreme Court reversed an appellate decision upholding the denial of the defendant's suppression motion and affirming his conviction of various drug-related offenses. (Celis, supra, 33 Cal.4th at p. 680.) It held that the warrantless search of defendant's house could not be justified as a protective sweep because although the police had information that two other people lived in the house, they had no factual basis to support a reasonable suspicion that anyone was in the house at the time they detained the defendant. (Id. at p. 679; see also People v. Ledesma (2003) 106 Cal.App.4th 857, 866 and cases cited therein [an officer's lack of any information about the presence of dangerous individuals does not create a "possibility" of peril that will justify a protective sweep].)
The facts of this case are similar to those in Celis. The police responded to emergency calls reporting a violent disturbance involving a man and a woman and found Dunford and Smith, both of whom had cuts or abrasions on their faces, outside Smith's home. The officers talked with both Smith and Dunford and, although Dunford was not responsive to their questions, Smith reported that he and Dunford had had a physical altercation. Neither Smith nor Dunford mentioned the involvement of any other persons and neither was armed at that time. Further, although neighbors had started to congregate in the area to watch what was happening, they did not make any comments suggesting there were others in the home that might pose a threat to the officers'safety.
Here, as in Celis, the officers had no information suggesting that anyone dangerous to them was inside Smith's house. Accordingly, there was no factual basis to support a reasonable suspicion that such persons were present in the house and thus the officers' warrantless search of Smith's home cannot be justified as a protective sweep.
B. Community Caretaking
An exception to the warrant requirement is also recognized where a police officer enters a residence, not for the purpose of investigating a crime, but for the purpose of protecting the safety or security of persons or property inside. (People v. Ray (1999) 21 Cal.4th 464, 468, 470-477 [plur. opn.] (Ray).) Thus, where the totality of the circumstances support a reasonable belief that the safety of persons or property in a home may be in jeopardy, police officers may enter the home without a warrant to ascertain whether their assistance is needed. (Ibid. [police responding to a neighbor's report that the door to a residence had been open all day long and that the interior of the residence was in shambles were entitled to enter the home without a warrant after no one responded when they repeatedly knocked at the front door].) In determining whether the community caretaking exception to the warrant requirement applies, the question is one of reasonableness, i.e., under the circumstances, "would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?" (Id. at pp. 476-477.)
Here, the circumstances did not support a reasonable belief by the officers that their entry into Smith's home was necessary to protect innocent persons or property inside. As noted above, the reports to the officers were that there were only two people (a man and a woman) involved in the disturbance and, in responding to those reports, they found Dunford and Smith, both of whom had cuts or abrasions on their faces, outside Smith's home. No one (including Smith, Dunford, the paramedics who assisted Smith and Dunford, the officers who arrived at the scene first or the neighbors who had congregated outside the house) said anything to the officers that suggested there were additional victims of the altercation, nor were there any physical indications at the scene that would have supported a reasonable belief that someone in the house needed the officers' assistance.
Under these circumstances, there was no basis on which the officers could base a reasonable suspicion that there were additional victims inside the house or that their assistance was needed to protect property there. Accordingly, the officers' warrantless search of Smith's home is not justified as part of their community caretaking functions and thus it was presumptively invalid.
2. The Subsequent Search After Smith's Arrest and Consent
When a defendant consents to a search after police have violated his or her Fourth Amendment rights, evidence discovered during the course of that search is inadmissible unless intervening events (including the passage of time) are sufficient to "purge the primary taint of the unlawful invasion." (Brown v. Illinois (1975) 422 U.S. 590, 598; Wong Sun v. United States (1963) 371 U.S. 471, 491; see Florida v. Royer (1983) 460 U.S. 491, 501.) Here, the Attorney General argues that the original search was valid, but raises no alternative contention that, if it was not valid, the taint thereof was purged by intervening events. Further, the record does not bear out the existence of any such events. Because we have concluded that the original warrantless search was improper, the absence of intervening events to purge that original taint requires a reversal of the judgment relating to the charges against Smith in SCD195612.
3. Imposition of Consecutive Sentence on Count 3 in SCD192500
Smith finally contends that the trial court's imposition of a consecutive sentence on count 3 (selling or furnishing cocaine) in SCD192500 violated his constitutional right to have a jury make the factual findings necessary to support his sentence as specified in Blakely v. Washington, supra, 542 U.S. 296. However, Smith signed a waiver of his right to a jury trial as to any fact in aggravation that the trial court might rely on in imposing his sentence. Further, his argument is unpersuasive on its merits because a trial court has full discretion to sentence consecutively or concurrently, without any particular factual findings required. (Pen. Code, § 669; (People v. Black (2007) __ Cal.4th ___, ___; 161 P.3d 1130, ____; 62 Cal.Rptr.3d 569, 576-578.) Accordingly, Smith's challenge to the imposition of a consecutive sentence in SCD192500 fails.
DISPOSITION
The judgment is reversed as to the counts charged in SCD195612 and is otherwise affirmed. The matter is remanded with directions to the trial court to prepare an amended abstract of judgment consistent herewith.
WE CONCUR: HALLER, Acting P.J., O'ROURKE, J.