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The People v. Steven Ralph Cosovich

September 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEVEN RALPH COSOVICH, DEFENDANT AND APPELLANT.



(Super. Ct. No. F4568)

The opinion of the court was delivered by: Robie , J.

P. v. Cosovich

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following the denial of his motion to suppress evidence, defendant Steven Cosovich pled no contest to being a felon in possession of a firearm. The trial court placed him on three years' probation.

Defendant appeals, contending the trial court erred in denying the motion to suppress because the deputies who searched his home: (1) violated the Fourth Amendment when they entered his house; (2) were not justified in performing a protective sweep; and (3) were not justified in asking for and obtaining his key to a locked bedroom because it was the fruit of an unlawful arrest. Holding that the deputies were not reasonably justified in performing the protective sweep, we reverse the trial court's denial of the suppression motion.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of April 14, 2009, Calaveras County Sheriff's Deputy Shane Carpenter was dispatched to a house in Vallencito regarding "a male and a female in a verbal altercation" in a driveway. When Deputy Carpenter arrived at the house, he noticed "several vehicles in the driveway." "[A]s [he] approached the residence[,] [he] could hear a male and female fighting inside." Deputy Carpenter overheard a male voice yelling, calling the female a derogatory name, and accusing her of oral copulation with another man. The deputy also heard "scuffling" noises. The deputy called for backup. Before backup arrived, Deputy Carpenter heard the female "cry or yell back at [the male]." The deputy walked around the house in an unsuccessful attempt to look through a window or find an unlocked door.

About 10 to 15 minutes after Deputy Carpenter called for backup, Deputy Josh Shemenski and Deputy Paul Newnam arrived. Deputy Shemenski went to watch the back door while the other two deputies knocked on the front door and rang the bell. Deputies Carpenter and Newnam announced their presence several times, but nobody came to the door. After the deputies threatened to call "SWAT" and kick down the door, defendant opened the front door. With the outer security door still closed, defendant told the deputies to leave and shut the inner door. The deputies threatened again to kick down the door. Defendant returned and opened both doors. The deputies asked defendant to step outside for a patdown search, and Deputy Carpenter attempted to handcuff defendant. Defendant "resisted," but the two officers eventually handcuffed him.

Deputies Carpenter and Newnam entered the house, leaving defendant on the porch with at least one other deputy who had arrived on the scene. Inside the house, the deputies found Morgan Carruth on the sofa in the living room. Carruth said "nothing happened," even though "[s]he was clearly distraught," and said no one else was in the house. Carruth had scratches on her neck and claimed "when she gets upset or nervous that she has a tendency to grab at her neck and scratch herself in the chin and throat area." Carruth explained she had been in a "verbal only" argument with Cosovich.

The deputies "check[ed the house] to make sure there was nobody else" in there "for officer safety reasons." The deputies came to a locked door off of the main hallway, which "represented a concern" because they did not know if "there was a human being behind it." The deputies returned to Carruth and "asked her who had a key to the room." "[S]he said that the key was with [defendant]." After obtaining the key from defendant, the deputies opened the locked door and saw at least one rifle leaning against the wall. The deputies then "had dispatch run a records check" and learned that defendant had a prior felony conviction. Deputy Newnam returned to the now unlocked room and found a total of three rifles.

In the trial court, defendant moved to suppress evidence of the three rifles. The trial court denied the motion because "the objective facts known to the officers, including the fact that the room was locked, created a reasonable suspicion that [the room] harbored an additional person who posed a danger to the officers at the scene." Defendant petitioned for a writ of mandate from this court to reverse the trial court's ruling. The petition was denied. Defendant retained new counsel and moved for a second suppression ...


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