Filed 3/27/13 P. v. Sosa CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047054

         v.                                                            (Super. Ct. No. 10WF0934)

CARLOS SOSA,                                                           OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
M. King and Gregg L. Prickett, Judges. Reversed with directions.
                   Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Carlos Sosa of possession of methamphetamine
for sale (Health & Saf. Code, § 11378) to benefit a criminal street gang (Pen. Code,
§ 186.22, subd. (b)) and active participation in a criminal street gang (Pen. Code,
§ 186.22, subd. (a)). Sosa contends deputies violated his Fourth Amendment rights by
entering his room without a warrant, consent, or other legal justification. The trial court
denied Sosa’s motion to suppress evidence, finding the officers were authorized to
conduct a protective sweep of the residence when they observed drugs and other evidence
in plain view. We agree the court should have granted the suppression motion because
the prosecution failed to present facts to support the deputies’ suspicion it was necessary
to search Sosa’s residence for armed individuals posing a threat to their safety. We also
accept the Attorney General’s concession insufficient evidence supported Sosa’s active
gang participation conviction based on the Supreme Court’s recent decision in People v.
Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez). Accordingly, we reverse the judgment.
                                              I
                         FACTS AND PROCEDURAL BACKGROUND
              Sosa moved to suppress evidence at his February 15, 2011 preliminary
hearing. At the hearing, Orange County Deputy Sheriff James Karr testified that on
April 15, 2010, he was assigned to a gang enforcement team working in Stanton. Karr
and nine other officers from various agencies, wearing marked police vests and carrying
firearms, arrived at Sosa’s residence to conduct a probation compliance check on Sosa’s
brother, Angel. Angel had agreed to submit to searches and seizures as a condition of his
probation.
              Karr knocked at the front door and announced the officers intended to
conduct a probation search. Sosa answered the door and Karr announced the officers
were there to check if Angel Sosa was complying with his probation conditions. The
officers entered without asking permission and immediately began a protective sweep to
make sure they “were safe while [they] were conducting the check.”

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               As part of the sweep, Karr walked down a hallway leading to the bedrooms.
Santiago Chavez and Juan Gomez occupied a bedroom on the left. Karr did not recall if
other officers opened the door to this bedroom or if the door was already open. Karr
entered and patted down both men.
               Karr left this room and continued down the hallway. He smelled “a strong
odor of marijuana” coming from the closed but unlocked door of the northwest corner
bedroom. Karr opened the door, entered the room, and encountered Linda Le standing in
the middle of the room. Karr observed a mature, potted 12-inch tall marijuana plant on a
stand in a corner of the room. The closet door was open. Karr saw a small fireproof safe
atop a dresser in the closet. The door of the safe was open, and Karr spotted over $700 in
cash, and two clear plastic sandwich-style bags inside. A black digital scale with white
residue on it sat next to the safe.
               The sandwich bags contained a white crystalline substance, which
subsequent testing revealed as methamphetamine. One bag weighed 1 gram, the other
1.5 grams. Karr found torn-off bits of plastic shopping bags strewn about the room that
Karr believed were used to package drugs. The safe contained a paper driver’s license
permit with Sosa’s name on it, and four $512 unemployment checks in his name dated
between December 19, 2009 and January 30, 2010. The top dresser drawer, open about
three inches, held another scale with white residue. Karr found a glass methamphetamine
smoking pipe on a storage shelf on the east wall of the bedroom. Karr also discovered
notebooks, letters, and other papers containing indicia of affiliation with the Crow
Village criminal street gang.
               Karr interviewed Sosa after advising him of his rights under Miranda v.
Arizona (1966) 384 U.S. 436. Sosa, who moved into the house in 2000, acknowledged
associating with various “active participants and/or members” of the Crow Street gang
around his age. Although he did not have a medical marijuana card, he bought the
marijuana plant at a dispensary for $20. He admitted the drugs and other paraphernalia

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belonged to him, but claimed he kept the methamphetamine for personal use and denied
selling the drug. He explained he used the scales to make sure he did not “get ripped
off,” but declined to explain where he got the money found in his safe. His cell phone
contained photos of drugs, guns, and gang members, and his text messages suggested he
was selling drugs.
              Asked where Angel was “during this time,” i.e., at the time Karr entered
Sosa’s bedroom as part of the protective sweep, Karr responded Angel “ended up being
in the family room of the residence.” According to Karr, five people lived in the house.
Angel slept on the couch in the family room. Everyone else, including Sosa, had their
own bedroom. It was 30 to 35 feet from Angel’s couch area to Sosa’s bedroom. It is
unclear when Karr acquired his information concerning the living arrangements for
Angel and the other residents.1
              The preliminary hearing magistrate denied Sosa’s suppression motion
without express factual findings. The trial court denied his renewed suppression motion
after the parties submitted the matter on the preliminary hearing transcript.
                                             II
                                        DISCUSSION
A.   The Trial Court Erred in Denying the Suppression Motion
              Sosa contends the deputies violated his Fourth Amendment rights when
they entered his room without a warrant, consent, or other legal justification. The
Attorney General argues the risk of danger to deputies conducting a probation check
justified a protective sweep of the residence, including Sosa’s room.




       1             Deputy Jeffrey Jensen testified at the preliminary hearing as a gang
expert concerning the Crow Village criminal street gang and various aspects of gang
culture. Based on evidence recovered from Sosa’s room, Jensen opined he was “an
active participant and/or member of Crow Village.”

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              The standard of appellate review on a suppression motion is well
established. We defer to the magistrate’s express or implied factual findings if supported
by substantial evidence, but with those findings in mind, we independently determine the
legality of the search under Fourth Amendment principles. (People v. Glaser (1995)
11 Cal.4th 354, 362; see also People v. Woods (1999) 21 Cal.4th 668, 674 [legality of
police conduct evaluated under federal constitutional standards pursuant to article I,
section 28, subdivision (d) of the California Constitution].) “‘Searches and seizures
inside a home without a warrant are presumptively unreasonable.’ [Citation.]” (People v.
Troyer (2011) 51 Cal.4th 599, 602.) The People bore the burden below of demonstrating
the reasonableness of the search under a recognized exception to the general proscription
against warrantless searches. (Vale v. Louisiana (1969) 399 U.S. 30, 34; People v.
James (1977) 19 Cal.3d 99, 106.)
              The Attorney General relies on Maryland v. Buie (1990) 494 U.S. 325
(Buie) and People v. Ledesma (2003) 106 Cal.App.4th 857 (Ledesma), to justify the
protective sweep of defendant’s residence. In Buie, six or seven police officers arrived at
the defendant’s residence to serve an arrest warrant for a reported robbery of a pizza
restaurant by two men, one of whom wore a red running suit. Once inside, officers
fanned out through the first and second floor, while a single officer shouted for anyone in
the basement to come out. The officer arrested and handcuffed the defendant as he
emerged from the basement, while another officer entered the basement “in case there
was someone else” hiding, and spotted a red running suit in plain view. (Buie, supra, at
p. 328.)
              Buie upheld the protective sweep, which the court described as a “quick and
limited search of 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.) The
officers, however, could not initiate a protective sweep on a mere hunch, but only if

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officers have “‘a reasonable belief based on “specific and articulable facts . . .reasonably
warranted[ed]” the officer in believing,’ [citation] that the area [to be] swept harbors an
individual posing a danger to the officers or others.” (Id. at p. 327.) In requiring a
reasonable and “individualized suspicion” to justify a protective sweep, the court rejected
“[t]he State’s argument that no level of objective justification should be required because
of ‘the danger that inheres in the in-home arrest for a violent crime.’” (Id. at p. 334,
fn. 2.)
              In Ledesma, supra, 106 Cal.App.4th 857, the court extended the Buie
rationale to probation searches. There, an officer conducting a narcotics investigation
contacted a woman named Barajas, whom the officer knew to be a twice-convicted drug
user on probation with a search and seizure condition. (Id. at p. 861.) Barajas provided
her current address, which the officer confirmed through the department’s records
division. He took Barajas to the address to conduct a probation search, but they were
unable to enter the house. The next afternoon, officers returned to the residence without
Barajas to conduct a probation search. The officers saw two cars parked in front of the
residence and a trailer parked in the driveway. The defendant, who appeared to be under
the influence of drugs, let the officers into the residence. The officers informed the
defendant they intended to conduct a probation search on Barajas. The defendant replied
she was not there, had not been there in a while, and did not always stay at the residence.
He nonetheless escorted the officers to the northeast bedroom Barajas used when she
stayed in the home. (Ibid.)
              Before searching Barajas’s bedroom, the officer asked if anyone else was in
the residence. Although the defendant claimed no one else was there, the officer
announced he would perform a security check for officer safety so “‘nobody [would]
sneak up behind [them] while [they] had [their] heads buried in a dresser drawer looking
for items within [Barajas’s] probation terms.’” (Ledesma, supra, 106 Cal.App.4th at
p. 861.) The defendant escorted the officers to his bedroom. The officer, while looking

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to the right of the bed and inside an open closet observed the defendant walk to a wooden
dresser in the room, grab what appeared to be several bindles of methamphetamine, and
place them into the dresser drawer. The officer also spotted a roll of money on the
dresser top and formed the opinion, based on the large sum of money and the large
quantity of methamphetamine, that the defendant was selling controlled substances.
(Ibid.) The defendant admitted the substance he placed in the drawer was “crank.”
(Id. at p. 862.) The officer arrested the defendant and obtained the defendant’s consent to
search, which revealed drugs and other evidence of drug trafficking. (Ibid.)
              The Ledesma court concluded a protective sweep was justified because the
officers harbored a reasonable basis for believing other potentially dangerous persons
may have been inside the probationer’s residence. The court rejected “the notion that a
protective sweep is always justified prior to a search” (Ledesma, supra, 106 Cal.App.4th
at p. 864), explaining “‘the mere abstract theoretical “possibility” that someone
dangerous might be inside a residence does not constitute “articulable facts” justifying a
protective sweep. Where an officer has no information about the presence of dangerous
individuals, the courts have consistently refused to permit this lack of information to
support a “possibility of peril justifying a sweep.” [Citations.]’” (Id. at p. 866.)
              Ledesma, however, found, “the information known to the investigating
officers, filtered through the lens of their experience and training, justified the protective
sweep undertaken.” (Ledesma, supra, 106 Cal.App.4th at p. 865.) Investigators knew
the probationer Barajas was a convicted drug user, and reasonably surmised the
defendant shared the residence with her. Because the defendant appeared to be under the
influence of drugs, the officers reasonably concluded the residence was the site of
ongoing narcotics activity. Based on their experience and training, the narcotics
investigators knew that “drug users and those who associate with them are apt to have
weapons in the house and have transients ‘in and out of their houses at all times of the



                                               7
day or night.’” (Id. at p. 865.) The presence of two cars parked outside the residence
buttressed the officer’s opinion others were inside the probationer’s residence. (Ibid.)
              Here, the Attorney General relies on Ledesma to justify the search of Sosa’s
room. She notes the house had multiple rooms and an unknown number of residents.
The officers “could not have known how many people were in the house at the time, or
whether any of the occupants posed a threat to their safety.” She concludes “it [was]
reasonable for officers to believe that there were multiple occupants of this residence, and
that there was a need to determine which areas were under Angel Sosa’s ownership or
control. The officers, before conducting a compliance check of the probationer’s
residence, would reasonably want to ensure that no one in the house posed a threat to
officer safety.”
              The Attorney General’s argument offers nothing more than the theoretical
possibility other unknown and dangerous persons might be in the residence, a standard
flatly rejected in Buie and Ledesma. It is not enough that there may have been unknown
persons in the residence. Under Buie, the officer must articulate facts supporting their
suspicion the area to be swept harbors an individual or individuals posing a danger to the
officer or others. (3 LaFave, Search and Seizure (4th ed. 2004) § 6.4(c), p. 377 [Buie
requires a reasonable suspicion another person is in the premises and that the person is
dangerous].) In Buie, two armed robbers were at large, but when only the defendant
emerged from the basement, officers reasonably suspected the other robber could be
hiding in the residence. (Buie, supra, 494 U.S. at p. 328.) In Ledesma, as discussed
above, the criminal conduct underlying the probation search involved drugs, and the
residence appeared to be the site of ongoing narcotics activity. (Ledesma, supra,
106 Cal.App.4th at pp. 865–866.) The court concluded firearms are one of the “‘“tools of
the trade”’” in “the narcotics business,” explaining that drug users and those who
associate with them are apt to have weapons in the house and have transients “‘in and out
of their house.’” (Id. at p. 865.) The officers had been to the residence before and

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“‘knew there was at least one other person who was around on occasion,’” which was
corroborated to some extent by the presence of two cars located directly in front of the
residence. (Ibid.)
              Here, in contrast, the prosecution failed to present facts suggesting a
comparable level of danger. Indeed, it is difficult to understand how the prosecution
could have made such a weak showing despite the guidance Buie and Ledesma provided.
For example, Ledesma emphasized “the type of criminal conduct underlying the arrest or
search is significant in determining if a protective sweep is justified.” (Ledesma, supra,
106 Cal.App.4th at p. 865.) But the prosecution failed to present any evidence
concerning the nature of Angel Sosa’s probation or his underlying offense. Nor was
there evidence linking Carlos Sosa to narcotics trafficking, weapons, or the Crow Village
gang. No evidence connected Sosa or the other residents to criminal activity or weapons,
nor did the officers know of ongoing criminal activity at the house. To sanction a
protective sweep under these circumstances would be to permit a protective sweep
whenever officers entered a residence.
              Several California cases following Buie illustrate the showing necessary to
justify a protective sweep. In People v. Ikeda (2013) 213 Cal.App.4th 326, sheriff’s
deputies had information linking the defendant to the theft of a laptop computer and
determined he was living at a motel, and changing rooms daily. He also left a room key
for a woman who came and went. Based on his training and experience, the lead
investigator believed the defendant’s activity was consistent with someone selling
narcotics. Deputies approached the room and heard two male voices inside. When
deputies knocked and announced their presence, the defendant tried to flee out the sliding
door to the parking lot. He admitted when apprehended there was a BB gun inside the
room. (Id. at p. 330.) Based on multiple male voices, indications of drug trafficking, and
the presence of a gun in the room, the appellate court concluded a reasonably prudent



                                             9
officer would entertain a reasonable suspicion the room harbored a dangerous person or
persons. (Id. at pp. 330-331.)
              In People v. Werner (2012) 207 Cal.App.4th 1195, sheriff’s deputies
arrested the defendant outside his home for a domestic violence incident occurring earlier
in the day. The defendant asked his roommate to get his shoes and keys. A deputy
accompanied the roommate into the house and into the defendant’s bedroom for officer
safety reasons. The deputy discovered marijuana and illegal fireworks in plain view.
(Id. at pp. 1198-1199.) The appellate court concluded the sweep was unjustified because
there was no evidence the home harbored dangerous persons. The court noted there was
no evidence connecting the roommate to criminal activity, nor were officers aware of any
ongoing criminal activity at the house. (Id. at p. 1208.)
              In People v. Ormonde (2006) 143 Cal.App.4th 282 (Ormonde), police
officers responded to an apartment to investigate a domestic violence incident that had
occurred at another location. They encountered the suspect, Olson, standing near a car
about 10 feet from the open front door of the apartment. They detained Olson, who was
argumentative and uncooperative, because they suspected he was involved in the incident
and linked to the apartment. While Olson was being detained, one of the officers entered
the apartment to see if anyone armed was inside the residence. He announced his
presence, stepped a few feet into the apartment, and found the defendant, a woman and a
young girl. They agreed to step outside to discuss Olson’s connection to the apartment.
The officer allowed the woman and the girl to return to the apartment while he
interviewed the defendant. Eventually, the officer reentered the apartment and
discovered drugs in the defendant’s bedroom. (Id. at pp. 286-288)
              The Ormonde court concluded the prosecution failed to justify the search as
a protective sweep. The court explained the investigating officer lacked reasonable
suspicion to believe there were potentially dangerous persons inside the defendant’s
apartment. (Ormonde, supra, 143 Cal.App.4th at p. 294.) The court recognized domestic

                                             10
violence situations may be dangerous, but it is not enough “that the police were genuinely
apprehensive of danger based on past experience with domestic battery situations . . . .”
(Id. at p. 295.) Under these circumstances, the facts known to the officer did not justify a
reasonable suspicion the apartment harbored persons posing a danger to those on the
arrest scene.
                In People v. Celis (2004) 33 Cal.4th 667, police officers suspected the
defendant was part of a statewide drug trafficking ring that concealed and transported
drugs inside large truck tires. Investigators followed the defendant to his home and
observed him rolling a large inflated truck tire to an accomplice waiting in a truck parked
in an alley. Officers detained the defendant and his accomplice at gunpoint. Knowing
the defendant lived with his wife and possibly a male juvenile (id. at pp. 671-673),
officers entered the defendant’s home to check if anyone else was inside who might
endanger them. (Id. at p. 672.) Investigators did not find anyone inside, but found
packages of cocaine stored in a wooden box large enough to conceal a person. (Id. at
pp. 672-273.)
                The Supreme Court concluded the officers lacked a factual basis to support
a reasonable suspicion that persons posing a danger to the officers were inside the
defendant’s residence. The court noted there was no evidence the defendant and his
accomplice were armed, and investigators found no weapons in earlier investigations of
the drug ring. (Celis, supra, 33 Cal.4th at pp. 672, 679.)
                Police work is an often dangerous enterprise, and officers should not have
to take unnecessary risks in the performance of their duties. But a generalized concern
for officer safety does not justify a protective sweep of an entire house. (Buie, supra,
494 U.S. at p. 332; Celis, supra, 33 Cal.4th at p. 678; U.S. v. Murphy (9th Cir. 2008)
516 F.3d 1117, 1121 [police must comply with the warrant requirement for search of the
premises beyond that authorized by the exigencies or other justifications].) Buie and its
progeny, including Ledesma, do not authorize a routine protective sweep of a residence

                                              11
preceding or accompanying a probation search divorced from a specific and articulated
safety rationale. As noted above, the prosecution presented no evidence apart from that
discovered during the search that linked Angel, Sosa, or the other residents to gangs,
narcotics trafficking, or weapons, nor did the officers state they knew of ongoing criminal
activity at the house. We may not infer a gang connection simply because the residence
was located in Crow Village territory or because gang officers were involved in Angel’s
probation search. The odor of marijuana, whether burning or fresh, did not suffice to
raise a reasonable suspicion there was someone dangerous inside Sosa’s bedroom. (See
People v. Torres (2012) 205 Cal.App.4th 989, 995 [protective sweep rationale did not
justify warrantless entry because it was “‘conjecture to conclude that there was enough
[marijuana] to constitute a jailable offense’”].) The prosecution here simply failed to
present evidence supporting an opinion other persons in the house posed a danger to the
officers sufficient to permit the intrusion of a protective sweep. Because the Attorney
General has pointed to no other justification for the search, we conclude the trial court
erred in denying Sosa’s motion to suppress evidence.
B.   Insufficient Evidence Sosa Actively Participated in a Criminal Street Gang (Pen.
Code, § 186.22, subd. (a))
              After the parties filed their appellate briefs, the California Supreme Court
concluded a gang member acting alone, even on behalf of his gang, does not violate of
Penal Code section 186.22, subdivision (a). (Rodriguez, supra, 55 Cal.4th 1125.) We
invited the parties to submit supplemental letter briefs addressing Rodriguez’s application
to this appeal. The Attorney General concedes no evidence shows Sosa acted with
another in possessing a controlled substance for sale, the crime relied on by the
prosecution to support the gang offense, and “Rodriguez dictates that there is insufficient
evidence to support [the Pen. Code, § 186.22, subd. (a)] conviction” charged in count 2 of
the information. We accept the concession and will direct the trial court to dismiss
count 2.

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                                            III
                                       DISPOSITION
              The judgment is reversed and the cause remanded to the trial court with
directions to grant Sosa’s motion to suppress evidence. The trial court is also directed to
dismiss count 2 of the information charging Sosa with active participation in a criminal
street gang. (Pen. Code, § 186.22, subd. (a).)




                                                  ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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