Trial Court: Santa Clara County Superior Court No.: C1068656 Trial Judge: The Honorable David A. Cena
The opinion of the court was delivered by: Duffy, J.*fn14
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. C1068656)
Warrantless searches of residences are "presumptively unreasonable" under the Fourth Amendment to the United States Constitution. (Payton v. New York (1980) 445 U.S. 573, 586, fn. omitted.) But police performing an in-home arrest may conduct a limited search for their own protection, known as a "protective sweep," under certain circumstances where they have a reasonable suspicion that there may be a dangerous person in the area to be swept. (Maryland v. Buie (1990) 494 U.S. 325, 335 (Buie).) Whether the court properly applied the protective sweep doctrine in upholding the warrantless search in this instance is at the heart of this case.
After sheriff's deputies arrested and handcuffed defendant Craig Andrew Werner outside his home in the late afternoon following a report of a domestic violence incident occurring early that morning, a deputy accompanied defendant's roommate inside the house while he retrieved defendant's shoes and keys. In the course of doing so, the deputy discovered marijuana and illegal fireworks in plain view in defendant's bedroom. The discovery of this contraband--followed by the deputies' finding of more marijuana, marijuana plants, and indicia of drug sales--resulted in defendant's being charged with three drug felonies.
Defendant moved to suppress seized evidence pursuant to Penal Code section 1538.5.*fn1 Although the People did not cite Buie, supra, 494 U.S. 325, or specifically argue the protective sweep doctrine, they claimed the initial search of defendant's bedroom was justified for officer safety reasons. The court denied the motion to suppress. Defendant then pleaded no contest to the three felonies as well as three misdemeanor offenses. The court suspended sentencing and granted three years' probation.
Defendant challenges the conviction entered on his no contest plea, contending the discovery of the contraband and indicia of marijuana sales was the product of an illegal, warrantless search of his residence. The Attorney General responds that the initial entry into the home that resulted in the discovery of contraband in defendant's bedroom was justified by the protective sweep doctrine and that defendant's roommate consented to later searches of the common areas of the home in which more contraband and evidence of drug sales activity were discovered. We conclude that the protective sweep doctrine did not justify the deputy sheriff's warrantless entry into defendant's home and that the court therefore erred in its denial of the suppression motion. In so holding, we address four distinct aspects of the challenged search, namely, the initial discovery of the marijuana and illegal fireworks in plain view, and the deputies' discovery of additional contraband and indicia of drug sales which followed. We will reverse the order of probation and direct the court to permit defendant to withdraw his no contest plea; if he does so, the court shall then vacate its order on the suppression motion.*fn2
PROCEDURAL AND FACTUAL BACKGROUND*fn3
Defendant was charged by information with three felonies: possession of marijuana for sale (Health & Saf. Code, § 11359); cultivation of marijuana (Health & Saf. Code, § 11358); and possession of a controlled substance, i.e., psilocybin (Health & Saf. Code, § 11377, subd. (a)). Defendant was also charged with misdemeanor possession of dangerous fireworks without a valid permit (Health & Saf. Code, § 12677), battery on a spouse or cohabitant (§§ 242-243, subd. (e)), and false imprisonment (§§ 236-237).
II. The Motion to Suppress
Defendant argued in his motion to suppress evidence pursuant to section 1538.5 that Deputy Sheriff Serg Palanov's initial entry into defendant's home while accompanying defendant's roommate, Adam Ingram, as he retrieved defendant's keys and shoes was unlawful. He claimed the warrantless search was not justified for officer safety reasons under the protective sweep doctrine enunciated in Buie, supra, 494 U.S. 325. Defendant argued that the evidence discovered in his bedroom as a result of the illegal sweep--a baggie of marijuana on a dresser and a large bag of marijuana and illegal fireworks in the closet--should be suppressed. He also asserted that a subsequent search of the home and backyard by Detective Doug Ulrich was unlawful because it followed Deputy Palanov's illegal search leading to the discovery of marijuana and was based on Deputy Palanov's invitation to " 'come see what I saw.' " Defendant challenged further in the suppression motion the subsequent search pursuant to a warrant of defendant's garage, which yielded approximately 45 marijuana plants with supporting irrigation and ventilation equipment. He asserted that, because the affidavit supporting the warrant included the information discovered from Deputy Palanov's illegal search, the search was unlawful under the " 'fruit of the poisonous tree' " doctrine. (See Wong Sun v. United States (1963) 371 U.S. 471, 488.)
The People opposed the motion, arguing that Deputy Palanov's warrantless entry into the home was lawful because it was necessitated by officer safety.*fn4 The People asserted further that the deputies' subsequent search of other areas of the house was lawful because Ingram agreed to it. They also claimed that the later search of the garage was lawful because it was made pursuant to a valid warrant.
An evidentiary hearing followed in two court sessions concluding on January 18, 2011. The evidence presented at the hearing, consisting of the testimony of three witnesses, follows.*fn5
On the afternoon of February 19, 2010, Deputy Palanov and Deputy Luis Orozco with the Santa Clara County Sheriff's Office interviewed a woman in San Jose. She reported that she had been assaulted early that morning by defendant, her boyfriend, at his home in Campbell. The two deputies, along with a third deputy, then went to defendant's residence, arriving about 5:00 p.m. Deputy Orozco knocked on the front door and defendant, who was barefoot, answered it after some delay. Defendant's roommate, Ingram, came outside after defendant was already speaking to Deputy Orozco on the front porch. Defendant was placed in handcuffs by Deputy Orozco. Defendant asked Ingram to retrieve defendant's keys and shoes from his bedroom.
Deputy Palanov testified that he then accompanied Ingram to defendant's bedroom "[f]or officer safety reasons. I didn't know what else might be in the house or what he might retrieve." Before entering the house, Deputy Orozco had checked through "the wants and warrants system" and determined that Ingram was "clear." One of the deputies pat-searched Ingram; the search yielded no weapons or suspicious items. Deputy Palanov also asked Ingram whether there was anyone inside the house, and he responded that there was no one. Immediately before entering, Deputy Palanov was unaware of the existence of any ongoing criminal activity at the house.
Deputy Palanov followed Ingram to defendant's bedroom. The deputy smelled marijuana and saw on top of a dresser a small Ziplock bag partially filled with what he believed to be marijuana. The closet door was ajar, and Deputy Palanov observed "one or two large gallon-sized bags filled with marijuana bud[s]" and numerous fireworks. The deputy also saw a notebook on the dresser; after looking through it, he determined that it had a number of "pay/owe" entries commonly found in drug sales. Deputy Palanov found inside the dresser $968 in cash and a quantity of psilocybin. He instructed Ingram to go outside and he complied. Deputy Palanov remained inside and another officer entered the house.
After going outside, Ingram was instructed not to re-enter the house and was told he was being detained. Deputy Orozco asked Ingram for permission to search his room and common areas of the house (including a third bedroom used by both occupants), and he gave that consent. Deputy Palanov searched Ingram's bedroom and the rest of the house. He found a small digital scale commonly used for narcotics in Ingram's bedroom; a plastic bag containing approximately 11 sorting trays containing marijuana residue, and a small marijuana plant in the third bedroom; and two plastic bags with marijuana buds in the kitchen. Deputy Palanov also went into the backyard. He noticed what he believed to be the odor of fresh marijuana coming from a detached garage. Deputy Palanov also heard a slight humming ...