The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
STATEMENT OF DECISION SUPPLEMENT TO ORAL RE MOTION TO SUPPRESS
On August 11, 2008, an evidentiary hearing was held on Defendant's Motion to Suppress Evidence. The Court made oral findings subject to completing legal research. Those oral findings are not repeated but are, by this reference, incorporated in this Statement of Decision.
On January 3, 2008, Fresno Police Officer Donald Dinnell responded to the residence at 3878 E. Turner Avenue, Fresno, California, to execute outstanding valid arrest warrants on Defendant Ronald Johnson and his wife Diane Johnson. Officer Dinnell had also been provided information by Detective Ridenhauer of the Fresno Problem-Oriented Policing Central SIR, that citizen calls had been received complaining about narcotics activities and sales at the 3878 E. Turner Avenue residence, prior to January 3, 2008.
When the Officers arrived at the property, they observed a residence structure, a separate three-sided detached garage and a third structure to the south of the detached garage and residence. The Officers observed garbage, a freezer, and other debris strewn about the residence grounds. The Officers announced their presence and purpose, to serve arrest warrants, and encountered Diane Johnson in the main residence, where she was arrested.
Officer Dinnell asked about the whereabouts of Ronald Johnson, and was told by Diane Johnson that he was in the detached garage adjacent to the residence. Ms. Johnson gave consent for the Officers to find Mr. Johnson. The Officers went to the detached garage which had three sides, covered with a tarp, a roof made out of cloth and cardboard and saw Defendant Ronald Johnson standing in an area with his back to the Officers trying to hide something. Officer Dinnell also observed a stereo cabinet at which Mr. Johnson was moving his hands to put something away. Less than three feet from Mr. Johnson was a box for a firearm, that was clearly marked as such by printing on the box.
Officer Dinnell stated that he knew Defendant was serving a felony arrest warrant for failure to appear, that the Defendant was a felon, that narcotics activity had been reported at the residence and that a firearm could be in the labeled box which was in plain view and was within the Defendant's reach. The Officer then feared for his personal safety.
Based on this perceived risk, Officer Dinnell drew his firearm, ordered Mr. Johnson to put his hands up, and with the assistance of another Officer, took Mr. Johnson into custody and handcuffed him. At Mr. Johnson's feet, Officer Dinnell observed what appeared to be a glass methamphetamine pipe. The Officers then opened the labeled box and found a .22 caliber nine-shot revolver. The box also contained .22 caliber ammunition and rifle cartridges.
Officer Dinnell then Mirandized Mr. Johnson using his FPD-issued rights card. The Defendant stated he understood his rights and agreed to speak. Also in plain sight was white powder that appeared to be crystal methamphetamine. Mr. Johnson stated that he had recently acquired the pistol, having traded a stereo for the firearm.
Officer Dinnell was aware that Mr. Johnson's 14-year-old daughter was in the residence and Mr. and Mrs. Johnson stated that their 14-year-old daughter was in an adjacent structure with an adult male named Junior. The Johnsons stated they did not want their daughter inside with Junior. Officer Dinnell was asked by the Johnsons to go inside the residence to look for their daughter. The Officer conducted a protective sweep.
The Officer testified that his observation of the residence where Defendant was encountered, was filthy, cockroaches were visible, the water did not work as it had apparently been shut off, and there was no stove. The interior of the residence was so cluttered with discarded items, clothing, and other articles, that the door could barely be opened. Officer Dinnell described the interior condition of the residence as deplorable and as a health risk to the safety of its inhabitants, particularly the 14 year old girl.
Officer Dinnell also opined that the Defendant was under the influence of methamphetamine based on rapid jerking motions, dilated pupils of his eyes, eyelid tremors, and other objective symptoms. Officer Dinnell also testified that he considered the situation to be an emergency and that he intended to conduct a sweep of all structures to determine if anyone else was present and to determine the level of risk to the safety of the 14 year old, particularly because there was no running water, the utilities did not appear to work and the residence was filthy and hazardous. Officer Dinnell testified that following the arrest of Diane Johnson, it was the Officers' purpose to locate the 14 year old to secure her safety.
Officer Steve Gonzales of the Fresno Police Department testified that he was Officer Dinnell's partner and that his observation of the house was that it was in extreme disarray, very dirty, very cluttered, and he had great concern that the residence was not safe for a 14 year old to be inside. Officer Gonzales found the 14 year old in the living room of the main residence and took the 14 year old out of that structure. Officer Gonzales noticed that a bedroom in the residence was also in the same level of clutter, disarray, and unsanitariness. He observed a toilet that was clogged with feces and did not have running water. There was no other bathroom. Officer Gonzales then went to the third structure to see whether there were any sanitary facilities or an operative stove or other utilities. The door was ajar to the third structure, which was south of the makeshift garage. As Officer Gonzales entered the room, he saw, in front of him, a rifle butt and to his right on a shelf he saw another rifle. As Officer Gonzales knew that Defendant Johnson was a convicted felon, Officer Gonzales took possession of both rifles, which were in plain view.
Officer Gonzales was then conducting a protective sweep for the health and safety of the 14 year old. He does this as a matter of course in cases involving juveniles, as he knew that he had to call CPS. Officer Gonzales described the regularly-established procedures whereby emergency referrals must be made to Child Protective Services and that he always conducts a protective sweep of any residence area where a juvenile is in residence, who may have to be committed to CPS custody. Officer ...