Filed 1/24/20 P. v. Marrero CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC JOSEPH MARRERO,

Defendant and Appellant.

H046348

(Santa Clara County

Super. Ct. No. C1757120)

Appellant Eric Joseph Marrero appeals the trial court’s denial of his motion to suppress. He contends that police officers lacked reasonable suspicion to conduct the protective sweep that led to the seizure of incriminating evidence against him. For the reasons explained below, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

At approximately 3:00 p.m. on December 20, 2016, six to eight officers in body armor from the Santa Clara Police Department’s Special Enforcement Team (SET), led by Detective Greg Deger, arrived at the residence of Stephen Rigdon (residence) to serve a warrant for Rigdon’s arrest on various felony charges, including narcotics offenses. The residence was a “very large two-story structure” with a detached garage and living quarters, as well as a front and back yard. Upon arrival, two or three officers positioned themselves to the rear of the main residential structure near the detached garage and living quarters, while the remaining officers positioned themselves in front of the residence. Sergeant Greg Hill was stationed at the front of the residence with Deger.

Hill had been to this location at least twice before, each time encountering individuals other than the identified target. Both Deger and Hill had been to the residence multiple times on SET operations in the past two years—Deger approximately four to five times and Hill twice. During Deger’s and Hill’s last visit on December 2, two individuals had fled from the police, likely by breaking a window in the rear bedroom in which Marrero was eventually found on December 20. One of the individuals who had fled on December 2, Larry Santos, was wanted on an outstanding felony warrant, believed to visit the residence, and thought to be possibly armed.

Deger testified that he believed officers are permitted to conduct a protective sweep “to ensure that there is nobody or nothing that poses a danger either to ourselves, . . . civilians, or even for the person that we’re there for that can either harm or kill us.” When asked whether Hill believed, in his experience and training, officers could safely and securely “complete an arrest warrant prior to a protective sweep being done,” Hill answered no and explained that “there could be anybody inside. They could be armed with anything. You don’t know until you have conducted your protective sweep and controlled the location.” On cross-examination, defense counsel asked Hill, “[D]o you sweep every time you do an arrest warrant?” Hill responded, “No, sir.”

On December 20, when SET officers arrived to serve Rigdon’s arrest warrant, they encountered two individuals who were not Rigdon outside the residence, one in the front yard and one in the back yard. These individuals were detained and “initially consolidated near the front of the door” due to SET’s “lack of resources.” Deger knocked on the front door and announced his intent to serve a warrant for Rigdon’s arrest. Rigdon opened the front door and was immediately arrested by Deger. The officers took Rigdon to the location in the front yard where they had brought the two individuals detained from the front and back yards. Deger did not recall whether Rigdon’s arrest took place on the interior or exterior side of the front door.

Hill entered the residence and immediately headed to the rear northeast bedroom from which the individual had fled on Hill’s prior visit to the house. Based on the presence of a “prop stick” that had been holding the bedroom door closed when Hill was last at the residence, Hill announced his presence and attempted to open the door quickly. Hill was only able to open the door approximately five inches because of the prop stick. He saw a person, later identified as Marrero, who was getting up from the bed. Hill identified himself as a police officer, explained that the police were executing an arrest warrant, and directed the person inside the room to open the door. Marrero stood up slowly and started “turning in place looking down at the bed.” Hill was afraid that Marrero was looking at a gun and ordered Marrero to open the door. Marrero slowly put on his pants, walked to the door, and removed the prop stick from the door.

Hill asked another officer to keep an eye on Marrero and entered the room to see if any other individuals were present. Hill saw a methamphetamine pipe to the left of the door and proceeded to check the closet and bathroom for persons. After exiting the bathroom, Hill noticed a puppy jumping on the bed. Hill realized the bed pillows were partially obscuring something that looked like the grip of a handgun and a small bag of drugs.

Marrero was taken to the front of the residence and detained by Deger, who noticed Marrero’s warm skin, rapid speech, and fidgety movements and suspected Marrero to be under the influence of a central nervous system stimulant. Deger conducted a field evaluation of Marrero and, after confirming those suspicions, arrested him. Deger checked Marrero’s person and found a small plastic bag of drugs and $1,085 in cash.

B. Procedural Background

Marrero was charged by criminal complaint with four felonies—unlawful possession of methamphetamine while armed with a loaded firearm (count 1; Health & Saf. Code, § 11370.1), possession of a firearm while under the influence of methamphetamine (count 2; Health & Saf. Code, § 11550, subd. (e)), possession of a firearm by a felon (count 3; Pen. Code, § 29800, subd. (a)(l)), and possession of ammunition by a prohibited person (count 4; Pen. Code, § 30305, subd. (a)(l))—and two misdemeanors—possession of methamphetamine (count 5; Health & Saf. Code, § 11377, subd. (a)), and possession of controlled substance paraphernalia (count 6; Health & Saf. Code, § 11364). Following a preliminary hearing, Marrero was held to answer on all charges and an information was filed.

Marrero pleaded not guilty at arraignment on the information on June 5, 2017, and moved pursuant to Penal Code section 1538.5 to suppress all evidence seized during the protective sweep of the residence. The trial court conducted a suppression hearing over the course of several court sessions. Marrero did not testify. After considering the evidence and the parties’ arguments, the trial court denied the motion.

The trial court noted that even though there was “some testimony from the officers” indicating their “subjective belief — that the right to do a protective sweep is, perhaps, broader than it might be in reality, the issue isn’t whether they believe that or whether a protective sweep is negated because they believe that. [¶] The issue is whether the facts of this case justified the protective sweep. . . . [¶] . . . [and] whether there is a reasonable suspicion to believe that that is the case based on the officer’s prior experiences, based on what they confront when they arrive initially on [December 20].” “[T]he issue is whether or not the officers had . . . a reasonable suspicion to believe that there were potentially dangerous persons inside the . . . house in this case.” The trial court concluded, “I do think the protective sweep in this case was justified.”

After the trial court denied the motion, Marrero entered a plea of no contest to all counts. At sentencing, the trial court suspended imposition of Marrero’s sentence and placed him on three years of formal probation subject to various terms and conditions.

II. DISCUSSION

Marrero challenges the trial court’s denial of his motion to suppress, arguing that the protective sweep of the residence was not justified by either probable cause or reasonable suspicion pursuant to Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie) and People v. Celis (2004) 33 Cal.4th 667, 679–680 (Celis). Marrero further contends that the officers lacked reasonable cause to enter the rear bedroom where he was found, the officers were “obliged to leave” the residence immediately following Rigdon’s arrest, and SET’s “blanket policy to search during every arrest” is unconstitutional.

A. Legal Principles

1. Standard of Review

“ ‘In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.’ ” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212; Cal. Const., art. I, § 24.) “In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment.” (People v. Simon (2016) 1 Cal.5th 98, 120 (Simon).) “If there is conflicting testimony, we must accept the trial court’s resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them.” (People v. Zamudio (2008) 43 Cal.4th 327, 342.)

B. The Residence

Marrero challenges the constitutionality of the officers’ entry into and search of the residence, citing Buie, supra, 494 U.S. at page 327, Celis, supra, 33 Cal.4th at pages 679–680, People v. Werner (2012) 207 Cal.App.4th 1195 (Werner), and People v. Ormonde (2006) 143 Cal.App.4th 282 (Ormonde).

The parties interchangeably use the terms “search” and “sweep” to describe the officers’ actions inside the residence following Rigdon’s arrest. For clarity, we note that Buie, supra, 494 U.S. at page 327, authorized two types of searches: a search of immediately adjoining spaces requiring neither reasonable suspicion nor probable cause and one beyond immediately adjoining spaces, commonly described as a “ ‘protective sweep,’ ” requiring “specific and articulable facts” that give rise to reasonable cause to search. (United States v. Lemus (9th Cir. 2009) 582 F.3d 958, 963, fn. 2.) Only the latter type of search is at issue here.

“A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others” that must be justified by reasonable suspicion and “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.) Marrero argues that under Celis, Werner, and Ormonde, the SET officers lacked reasonable suspicion based on specific and articulable facts to justify the protective sweep of the residence. These cases stand for the rule that general concerns for officer safety due to increased dangers associated with certain types of criminal activities, such as narcotics and domestic violence, do not amount to specific and articulable facts giving rise to reasonable suspicion. (Celis, supra, 33 Cal.4th at p. 679; Werner, supra, 207 Cal.App.4th at p. 1206; Ormonde, supra, 143 Cal.App.4th at p. 294.) Having reviewed the evidence presented at the hearing on the motion to suppress, we conclude Celis, Werner, and Ormonde are distinguishable from the facts here.

Before executing the arrest warrant, the SET officers held a briefing to discuss “standard” safety concerns such as gun fire or a hostage situation, as well as safety risks arising from “this particular case.” “[T]his particular case” involved a residence with a reputation among SET officers as a “revolving door” for drug activity, a reputation based on the personal observations of officers who had visited the residence on multiple occasions over the past two years. Deger testified, “So [] amongst the many things that we discussed during the briefing are the fact that this residence is a location that we had been to numerous times over the course of the previous two or three years. . . . [E]ach of those occasions with numerous individuals up to 10, 11, 12 arrestees, people actively fleeing from us, and that there was possibly somebody that had a weapon, a firearm, associated with them. These are all things that were discussed so that everybody had the right mindset going into the operation.”

The officers discussed the SET’s last visit to the residence on December 2 when two individuals had fled, likely by breaking a window from the rear bedroom where Marrero was found on December 20. One of the two individuals found on December 2 was Larry Santos, who was wanted on an outstanding felony warrant and believed to be a frequent visitor to the residence. Consequently, the officers also discussed the “need[] to keep that from happening and having people running through other people’s yards.” Deger recalled being warned at the briefing: “ ‘Hey, that’s a pretty bad location, and there’s supposed to be at least one person with a gun inside potentially.’ ”

Deger explained that, despite Rigdon’s arrest and notwithstanding Rigdon’s assertion that he was the only person inside the residence, the SET officers remained concerned about the presence of unknown weapons and individuals: “[T]his is a very large two-story structure where we’ve arrested up to ten individuals from just the location in the past, for a variety of charges, including numerous felonies. We’ve had people fleeing from us in the past. People associated with drug sales, and obviously, that’s inherently dangerous in and of itself. [¶] So we were very concerned, not only from the potential for other subjects being inside that could be armed with anything from your normal household products to, you know, a firearm or worse. [¶] Also, the tactical consideration of it being a two-story building and the potential that somebody could have . . . ‘the high ground’ on us.” Deger was also concerned that SET officers standing outside would be “ ‘sitting ducks’ ” for unknown individuals inside the residence: “[I]n my training and my experience, what commonly happens is in—especially during this time of day, if you’re in a location outside of a residence trying to look in, you often will just see, say, curtains, blinds, a glare from sunlight, whatever, you can’t see actually inside the residence.”

In Celis, officers detained the defendant on suspicion of narcotics trafficking and conducted a protective sweep of his home because earlier surveillance indicated that two other individuals also lived there. (Celis, supra, 33 Cal.4th at pp. 671–673.) There was no “information as to whether anyone was inside” and no indication that the defendant was armed. (Id. at p. 679.) Consequently, the California Supreme Court held that these facts did not amount to reasonable suspicion to justify the protective sweep of the defendant’s home. (Ibid.)

Whereas the officers in Celis possessed neither a warrant nor probable cause, the SET officers arrived at Rigdon’s residence in possession of “an arrest warrant founded on probable cause [which] implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Payton v. New York (1980) 445 U.S. 573, 603.) Like the defendants in Werner and Ormonde, Rigdon was arrested immediately upon answering the front door. (Werner, supra, 207 Cal.App.4th at p. 1207; Ormonde, supra, 143 Cal.App.4th at p. 291.) But unlike the officers in Werner and Ormonde, who had never been to the defendants’ respective homes and cited general risks associated with domestic violence as the sole justification for conducting a protective sweep, the officers here were aware of more than just the general risks associated with narcotics activity. (Cf. Werner, supra, 207 Cal.App.4th at pp. 1207, 1209; Ormonde, supra, 143 Cal.App.4th at pp. 291, 295.)

The SET officers were familiar with the residence because it had been such a frequent destination in recent years, and knew it to be a “revolving door of sorts” for many different individuals who consistently fled the residence upon learning of the officers’ presence. The officers were entitled to reasonably conclude this behavior was more consistent with individuals associated with criminal activity, who might pose a danger to them. Officers are permitted to assess reasonableness based on “ ‘commonsense judgments and inferences about human behavior.’ ” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146.) Given the SET officers’ knowledge of these articulable facts that, unlike in Celis, Werner, and Ormonde, were specific to “this particular case,” it was practical for SET officers to be “mentally and physically prepared for the possibility of contacting more people than just the person who the warrant was for.” (See Celis, supra, 33 Cal.4th at pp. 679–680; Werner, supra, 207 Cal.App.4th at pp. 1207, 1209; Ormonde, supra, 143 Cal.App.4th at pp. 291, 295.)

Marrero argues it is not relevant that SET officers have “raided the home many times before and . . . arrested up to a dozen people in previous raids” given that the officers have “never faced an attack from the home in the past.” However, Marrero’s contention would require that the officers have knowledge of danger, rather than reasonable suspicion. The question of reasonableness “ ‘does not deal with hard certainties, but with probabilities.’ ” (United States v. Sokolow (1989) 490 U.S. 1, 8 (Sokolow).) At the pre-operation briefing, SET officers specifically discussed past difficulties in securing the perimeter of this large, two-story residence due to unanticipated encounters with multiple wanted individuals other than the “identified target.”

When the officers arrived on December 20, they immediately encountered two individuals in the yard outside the residence. Based on past visits to the house, the most recent operation on December 2, and the two individuals found on December 20, the officers reasonably were concerned about their safety based on the possible actions of individuals inside the residence. The officers also believed that another wanted individual, Santos, could be inside the residence.

In addition, the residence was a “revolving door” for individuals associated with narcotics. Furthermore, Rigdon’s arrest warrant included narcotics charges, so it was “reasonable to conclude that the residence was the site of ongoing narcotics activity.” (People v. Ledesma (2003) 106 Cal.App.4th 857, 865.) “ ‘In the narcotics business, “firearms are as much ‘tools of the trade’ as are most commonly recognized articles of narcotics paraphernalia.” ’ ” (People v. Glaser (1995) 11 Cal.4th 354, 367.) “ ‘[B]ecause of the private nature of the surroundings and the recognized propensity of persons “engaged in selling narcotics [to] frequently carry firearms to protect themselves from would-be robbers,” [citation] the likelihood that the occupants [of a residence] are armed or have ready accessibility to hidden weapons is conspicuously greater than in cases where, as in Ybarra [v. Illinois (1979) 444 U.S. 85], the public freely enters premises where legal business is transacted.’ ” (Id. at p. 368.)

Accordingly, we determine that the record reflects articulable facts forming a reasonable basis for the officers to conduct a protective sweep of the residence.

B. The Rear Bedroom

Marrero contends the Fourth Amendment prohibits officers from conducting a protective sweep of a room occupied by a sleeping individual and required the officers to leave the residence immediately after securing custody of Rigdon. The record does not support Marrero’s contention that he was sleeping when Hill stood at the door, since Hill testified that he saw Marrero “laying” on the bed and “getting up” when Hill first saw him. Hill never used words like “sleep,” “sleeping,” or “asleep” to describe his initial view of Marrero on the bed, and based on the transcripts, defense counsel was the only person to use these terms at the suppression hearing. Arguments of counsel are “not evidence.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

After Hill announced his presence, Marrero looked to his side instead of coming to open the door. Hill could not see what Marrero was looking at and feared Marrero was looking at a gun. We determine that these unchallenged facts, taken as a whole, amount to specific, articulable facts sufficient to justify a protective sweep of the rear bedroom. (Sokolow, supra, 490 U.S. at p. 7.)

Marrero also argues that Hill’s entry into the bedroom does not fall within the protective sweep doctrine because it occurred after police had “completed” Rigdon’s arrest. Marrero contends it was the government’s burden “to show that further search was necessary before the police could safely leave.” Under Buie, the police may engage in a protective sweep until they “complete the arrest and depart the premises.” (Buie, supra, 494 U.S. at p. 336.) Although the trial court did not make any explicit findings about the duration of Rigdon’s arrest, it implicitly found that the officers’ actions were sufficiently limited in duration and scope to constitute a “protective sweep” under Buie. “In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (Simon, supra, 1 Cal.5th at p. 120.)

At the hearing, defense counsel introduced three video recordings from the officers’ body-worn cameras of Rigdon’s arrest and the protective sweep, which defense counsel described as only a few minutes long. (See People v. Seaton (2001) 26 Cal.4th 598, 632 [describing a “cursory sweep” taking no more than three minutes and “a more thorough search” requiring a warrant].) These video recordings were admitted into evidence at the suppression hearing as “Defense Exhibit A,” but neither party requested they be transmitted to this court for its review. The parties do not rely on the content of the videos in their arguments before this court, and we have not reviewed the recordings. Hill testified that he went “directly” to the rear bedroom after entering the residence and “didn’t pay attention . . . to details” while conducting the protective sweep because he was “moving around so fast.” Officers arrested both individuals found in the yard on outstanding arrest warrants and found one more individual other than Marrero inside the residence.

Deger testified that Rigdon was “escorted outside” and “secured in the location where other people found were being secured,” and that Deger was “primarily outside . . . consolidating all of the detainees[] while the remainder of the house was searched.” This testimony constitutes substantial evidence that the SET officers had not completed the arrests at the time Hill encountered Marrero in the rear bedroom and, accordingly, the protective sweep of the rear bedroom did not violate the principles articulated in Buie.

C. Protective Sweep Policy

Finally, Marrero contends that the officers’ decision to enter the residence “was not based on their assessment of the facts, but, rather, on a blanket policy to search during every arrest.” The “constitutional reasonableness” of a search or seizure does not “depend[] on the actual motivations of the individual officers involved” and an officer’s “ ‘[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.’ ” (Whren v. United States (1996) 517 U.S. 806, 813.) “ ‘[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ ” (Ibid., italics added.)

While Marrero argues that this blanket policy directly contradicts Buie’s requirement that a protective sweep “may be conducted only when justified” (Buie, supra, 494 U.S. at p. 336), “[w]hether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ [citation], and not on the officer’s actual state of mind at the time the challenged action was taken.” (Maryland v. Macon (1985) 472 U.S. 463, 470–471.) It is not relevant whether, as Marrero contends, the SET officers subjectively hoped to use “Rigdon’s arrest as a pretext to search the home . . . for a suspect for whom they had no warrant,” nor whether their asserted reliance on this blanket policy impermissibly attempts “to justify the search after the fact.” Rather, it is sufficient that the record presents, as we have determined, substantial evidence of articulable facts that objectively amount to reasonable suspicion.

III. DISPOSITION

The judgment is affirmed.

______________________________________

Danner, J.

WE CONCUR:

____________________________________

Elia, Acting P.J.

____________________________________

Grover, J.

H046348

People v. Marrero