People v. Gutierrez
| Decision Date | 19 February 2019 |
| Docket Number | E068881 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANK ERNEST GUTIERREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed.
Ami Sheth Sagel, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Frank Ernest Gutierrez brought a motion to suppress evidence obtained during a protective sweep of his residence. The trial court partially granted defendant's motion as to a rifle found inside a case and denied the motion as to all other items found inside the residence. Thereafter, in a plea to the court, defendant pled guilty to possession of a firearm by a felon (Pen Code, § 29800, subd. (a)(1); count 2),1 possession of ammunition by a felon (§ 30305, subd. (a); count 3), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4), and possession of marijuana (Health & Saf. Code, § 11357, subd. (c); count 5). Defendant also admitted that he had suffered four prior prison terms (Pen. Code, § 667.5, subd. (b)) and two prior felony strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). In return, the trial court sentenced defendant to the indicated sentence of 32 months in state prison.
On appeal, defendant argues the trial court erred in denying his suppression motion as to the other items seized during the protective sweep. For the reasons explained below, we reject defendant's contention and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND2
At the suppression hearing, Riverside Police Department Officers Cliff Mason, Michael Cupido, and Daniel Cisneros testified as follows: On July 17, 2015,3 officers from the Riverside Police Department conducted surveillance outside a residence in Idyllwild, California, based on their belief that a suspect, Lisa Brown, who was involved in a fatal hit-and-run vehicular manslaughter, was in the vicinity of the residence. The residence was small with an attached garage. Officer Mason conducted surveillance of the residence for two hours from an unmarked police vehicle parked on the street. During his surveillance, he observed at least three vehicles with multiple occupants come and go from the residence. Officer Mason could not see if the same number of people came and went with each vehicle, and was concerned that someone was going to try to sneak Brown out of the house and drive her out of the area. While he was watching the house, a person in the area approached his vehicle and asked Officer Mason why he was there. When Officer Mason described Brown, the person said that a female matching the description had gone into the house the night before.
Thereafter, Officer Mason decided to make contact with the occupants of the residence. The officers surrounded the house, announced they were police officers, and asked the occupants to come to the front door. Officer Cupido walked to the side of the residence, banged on the windows, and announced his presence as a police officer. Officer Mason approached the front door, which was slightly ajar, pushed the door completely open, and announced his presence as a police officer. Through the opening, officers could see a marijuana cigarette on a coffee table in the living room and could smell the odor of burnt marijuana.
Defendant appeared from a back bedroom and walked outside the house to speak with the officers. The officers asked defendant whether he was on probation or parole. Defendant responded that he was not on probation or parole but that he was an "ex-con" and had been in prison in the past. Defendant also informed the officers that his friend, Brown, was inside the residence and yelled for her to come outside. Brown exited the same back bedroom and came outside. After the officers identified Brown as the suspect in the fatal hit-and-run vehicular manslaughter incident, they detained her.
In defendant's presence, Brown asked the officers if they could go inside and retrieve her personal items since she was being taken into custody. Brown noted that her belongings were in the back bedroom and in the living room. Officer Mason noted that Brown stated, " " The officers agreed to do so. However, because the officers did not know who or how many people were inside thehouse, they did a "protective sweep" of the residence to ensure officer safety before they began looking for Brown's belongings.
Defendant was cooperative with the officers. The officers did not ask if there was anyone else in the home after defendant and Brown came out of the residence, nor did they have any information that there were dangerous individuals in the home. The officers did not know who lived in the home or whether defendant lived alone in the home. The officers also did not have reason to believe that Brown had weapons or drugs. The officers also did not know how many people still remained in the home.
Officers Cisneros, Cupido, and Mason conducted the protective sweep of the residence. The officers checked all areas where a person could be hiding. Officer Cupido testified that they conducted a systematic search to "make sure there was nobody standing over" an unseen corner or "hiding" inside the residence, first searching to the left where there was a living or dining room. The officers also swept through "the bedroom and cleared the bedroom, then the kitchen, and then the garage."
In the back bedroom, where Brown's purse was located, Officer Cisneros found in plain view a rifle and a rifle case. Officer Cisneros opened the rifle case and found a second rifle inside the case. Both rifles were not loaded. Officer Cisneros found an ashtray on a shelf that appeared to contain methamphetamine and two glass pipes next to it. Officer Cisneros also saw a scale and some razor blades on a small table in the back bedroom in plain sight. In addition, Officer Cisneros found a padlocked box on a shelf in the bedroom. Officer Cisneros asked defendant what was in the locked box, anddefendant replied that the box contained old recipes and gave the officer consent to open the box. Defendant told the officers where the key was and the officers unlocked the box and found ammunition inside the locked box.4 In the living room, where Brown's clothing and other personal items were located, officers found additional methamphetamine on top of the coffee table and marijuana in a clear box underneath the coffee table.
Defendant was arrested and taken to a police station. At the police station, officers found methamphetamine in defendant's shoe and on the floor near where defendant had been seated in the booking area.
Following testimony, the trial court heard argument from both counsel. Defense counsel argued the protective sweep was not justified because there were no facts supporting the officers' suspicion that a dangerous person was inside the residence. The prosecutor asserted that the protective sweep was justified to ensure officer safety because Brown had asked the officers to enter the residence to retrieve her items and because multiple people had been seen coming and going from the house.
The trial court granted defendant's suppression motion as to the rifle found in the case, but denied defendant's motion as to all of the other items found in the residence. The court explained, The court further noted, "And I think that to go into the house and get the property for Brown was a legitimate governmental entry, so my conclusion is that the officers were permitted in the Fourth Amendment analysis to enter the house and to do a reasonable quick check to see if anybody was dangerous in the house in the facts of this case; however, that scope can be exceeded, and I think it was in certain respects in this case." The court denied defendant's suppression motion as to all the items found in plain view, and granted the motion as to the rifle found inside the case, noting the officer opening the case exceeded the scope of the protective sweep. As to the ammunition found in the locked box, the court concluded that defendant gave consent to open the locked box.5
III
DISCUSSION
Defendant argues the trial court improperly denied his motion to suppress evidence because (1) the officers lacked consent to enter his residence, and (2) the protective sweep was not justified as there were no facts to support the officers' suspicion that there could be dangerous individuals inside the house. For the reasons explained below, we reject these contentions, and affirm the judgment.
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials." (People v. Parson (2008) 44 Cal.4th 332, 345.) "'It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home...
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