IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
September 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVEN RALPH COSOVICH, DEFENDANT AND APPELLANT.
(Super. Ct. No. F4568)
The opinion of the court was delivered by: Robie , J.
P. v. Cosovich
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 hearing. The trial court denied defendant's motion. Ultimately, defendant pled no contest to being a felon in possession of a firearm.
The deputies discovered the illegally-possessed firearms during a protective sweep. Our primary focus is therefore whether that protective sweep was legal. As we explain, we hold the deputies lacked "articulable facts" that would give rise to a "reasonable suspicion" an individual posing a danger to those on the arrest scene was present in defendant's house. (Maryland v. Buie (1990) 494 U.S. 325, 327, 334 [108 L.Ed.2d 276, 281-282, 286] (Buie); People v. Celis (2004) 33 Cal.4th 667, 678 (Celis).) Therefore, the protective sweep violated the Fourth Amendment. (Buie, at p. 337 [108 L.Ed.2d at p. 288].)
"A 'protective sweep' is a quick and limited search of the 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 [108 L.Ed.2d at p. 281].) For a protective sweep to be valid, "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." (Id. at p. 334 [108 L.Ed.2d at p. 286].) In other words, "[a] protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person." (Celis, supra, 33 Cal.4th at p. 678.)*fn1
In Celis, our Supreme Court held a protective sweep to be unlawful. A statewide drug trafficking investigation led officers to set up surveillance outside of the defendant's house. (Celis, supra, 33 Cal.4th at pp. 671-672.) The officers followed the defendant for two days and, on the second day, they detained the defendant at gunpoint when the defendant left his house with another man. (Id. at p. 672.) "Because [police] had noticed that [the] defendant's wife and 'possibly a male juvenile' lived with [the defendant], [police] entered the house to determine if there was anyone inside who might endanger their safety[,]" effectively performing a protective sweep. (Ibid.) When inside the house, the officers found a box large enough to conceal a person, opened it, and discovered several packages which were subsequently found to contain cocaine. (Id. at pp. 672-673.)
In concluding the standards to perform a protective sweep were not met, the court noted the officers observed the defendant's wife and a "'juvenile male'" at the house over the two-day surveillance period, but the officers did not keep track of who was in the house. (Celis, supra, 33 Cal.4th at pp. 679-680.) So the officers had no knowledge the wife and "'juvenile male'" were inside the house at the time they detained the defendant. (Id. at 679.) Because the officers conducted the protective sweep without information indicating that anyone was inside the house, the requirements of Buie were not met. That is, there were no "'articulable facts' considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbored a person posing a danger to officer safety." (Celis, supra, 33 Cal.4th at pp. 679-680.)
A recent case applied Celis to another protective sweep. (People v. Ormonde (2006) 143 Cal.App.4th 282 (Ormonde).) In Ormonde, officers responded to a domestic violence call made by the victim. (Id. at p. 286.) Officers met the victim away from the defendant's home where the victim's estranged husband was located. (Ibid.) After receiving directions from the victim, officers proceeded to the defendant's home, where they encountered the estranged husband outside. (Ibid.) An officer entered the defendant's home to check if anyone was inside because "[h]e believed that his safety and the safety of the other officers would be jeopardized if he did not enter the house." (Id. at p. 287.) While inside the house, the officer encountered the defendant, a woman, and a young girl, all of whom he asked to step outside. (Ibid.) During the arrest scene investigation, the officers received information that the defendant was a drug user and drug dealer. (Id. at pp. 287-288.) The officers returned to the inside of the house where they found illegal drugs. (Ibid.)
The People contended the officer's initial entry into the home was justified as a protective sweep because, based on the officer's past experiences with domestic violence situations, he feared for his and the other officers' safety. (Ormonde, supra, 143 Cal.App.4th at p. 294.) Such fear was based largely on the officers' experience with there being weapons at homes where domestic violence occurs and "'sympathetic parties other than the two combatants, such as family members, friends, parents, people [who] have an emotional stake in what's occurring [and] are not happy about the police being involved in their personal business and [who] also may want to protect the victim and/or suspect.'" (Id. at p. 295.) Disagreeing with the People, the court explained, "[i]t does not appear to be enough, under Celis, that the police were genuinely apprehensive of danger based on past experience with domestic battery situations or large-scale drug operations." (Ibid.) The officer's genuine fears were not enough to satisfy Buie because officers still must have knowledge of facts that give "rise to a reasonable suspicion that the area to be swept harbors an individual or individuals posing a danger to those on the arrest scene." (Ormonde, supra, 143 Cal.App.4th at p. 295.) To show that the officers lacked the requisite knowledge of facts, the court noted that the officers did not see anyone else inside the house, did not have reason to suspect that the estranged husband was armed, "or that anyone else was involved in the domestic fracas . . . ." (Id. at p. 294.) In fact, the officer who made the entry "specifically testified 'I don't think that I thought there were people in the house, I was just trying to determine if there were people in the house[,]'" demonstrating a lack of the factual knowledge necessary to support a reasonable suspicion that someone was inside. (Ibid.)
Most recently, our Supreme Court decided People v. Troyer (2010) 51 Cal.4th 599. There, officers responded to a shooting that had taken place at a residence. (Id. at p. 603.) Officers were informed there was possibly a male victim who had been shot twice. (Ibid.) When the officers arrived, two victims were outside of the house, but the officers had not accounted for the male victim mentioned in the report. (Ibid.) There was blood on the front door and door handle, leading officers to believe that the unaccounted-for victim could have been inside the house. (Ibid.) The officers entered the house, came across a locked bedroom, and kicked in the door. (Id. at p. 604.) Inside, the officers found drugs, guns, and over $9,000 in cash. (Ibid.)
Because the officers were looking for an unaccounted for victim, they were justified in entering the house and locked room based on an emergency aid exigency. (People v. Troyer, supra, 51 Cal.4th at pp. 608, 612.) Additionally, the court noted the locked door posed "obvious risks to the officers." (Id. at p. 613.) Such risks were present because the crime to which the officers responded was a shooting and, since the suspects were at large when the officers arrived on the scene, it was possible that they were behind the locked door. (Id. at pp. 612-613.)
With these cases in mind, we return to the facts here. Deputies responded to a call of possible domestic violence. A deputy heard a verbal argument between a male and a female inside the residence and the sounds of a "scuffle." After the male, defendant, opened the door, the deputies handcuffed him and entered the house. Inside, the deputies found the female, Carruth, and performed a protective sweep.
The People contend the deputies reasonably believed that a third party was present. In support of their contention, they argue as follows: "The deputies were aware that a physical altercation had taken place in the house, but they did not know exactly who was involved or who had caused Carruth's injuries. There was no indication prior to the entry that [defendant] had been the attacker. Since the conflict related to a third party cheating with the female, it was reasonable for the deputies to believe that someone else might be present in the house. The fact that the protective sweep took place on [defendant]'s 'turf' in a confined setting of unknown configuration made the potential dangers requiring the sweep especially acute in this case. [Citations.] The locked door in the hallway posed obvious risks to the deputies as they continued their search . . . ."
The fact a physical altercation took place inside may be grounds for officers to enter a home based on exigent circumstances. (See Brigham City v. Stuart (2006) 547 U.S. 398, 405-406 [164 L.Ed.2d 650, 658-659] [police entered a home after they saw a juvenile punch an adult in the face].) But those grounds do not justify a protective sweep if the officers are not faced with a reasonable threat of danger. (See Buie, supra, 494 U.S. at p. 334 [108 L.Ed.2d at p. 286].) Here, defendant posed no reasonable threat of danger because he was unarmed and was handcuffed outside. (See Ormonde, supra, 143 Cal.App.4th at p. 294.) There was also no reason to believe that a third party was present.
The call to which Deputy Carpenter responded was about possible domestic violence between "a couple," and a deputy heard only "two" people arguing inside. Once the deputies were inside, Carruth told them there was a verbal argument, the scratches on her neck were self-inflicted, and no one else was in the home. While defendant had referred to a third party during his argument with Carruth, mere reference to a third party in a heated argument was not enough to justify a reasonable belief that the third party was present and posed a danger to those on the scene. Moreover, while there were "multiple" cars in the driveway, the People point to no facts that would have supported a reasonable suspicion that there were more than two people inside the house. Indeed, that the deputies were not aware of sufficient facts to justify a protective sweep is supported by Deputy Newnam's statement (much like the statement of the officer in Ormonde, supra, 143 Cal.App.4th at page 294, that he "had no information that we had one or two or three or anybody else that was in the residence."
We come then to the locked door and what the People termed "obvious risks" associated with it. Without more, a locked door does not suggest that the room harbors a danger. The locked door in Troyer posed an "obvious risk" because the officers knew that a shooting had taken place at the premises and suspects were still at large and may have been hiding behind the door. Such circumstances are not present here because the officers had no reasonable belief a third person, be that person a victim, Carruth's attacker, or a possible threat to the officers, was present.
The "rational inferences" from the facts in this case would not "warrant a reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene." (Buie, supra, 494 U.S. at p. 334 [108 L.Ed.2d at p. 286].) Accordingly, the protective sweep was unconstitutional.
The judgment is reversed. The trial court shall permit defendant to withdraw his no contest plea, and in the event he does so, the trial court shall vacate its order denying the motion to suppress and enter a new order granting that motion.
We concur: NICHOLSON , Acting P. J. HOCH , J.