Filed 7/8/16 P. v. Cruz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F069345

         Plaintiff and Respondent,                                           (Super. Ct. No. BF148641A)

                   v.                                                                     OPINION

JOSE MOJARRO CRUZ,

         Defendant and Appellant.


                                                   THE COURT*

         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Cambell Whitten and Jesse Whitten for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*
         Before Levy, Acting P.J., Detjen, J. and Franson, J.
                                                             1.
                                    INTRODUCTION
       Appellant Jose Mojarro Cruz pled no contest to possession of methamphetamine
for sale and was sentenced to three years in local custody, followed by 10 years of
mandatory supervision. On appeal, Cruz argues the trial court erred by denying his
motion to suppress the evidence against him, as it was procured during an unlawful
protective sweep. We affirm.
                             STATEMENT OF THE CASE
       On October 7, 2013, an information was filed in Kern County charging defendant
Jose Cruz with one count of possession of cocaine for sale (Health and Saf. Code,1 §
11351; count 1), one count of possession of heroin for sale (§ 11351; count 2), one count
of marijuana for sale (§ 11359; count 3), and one count of possession of
methamphetamine for sale (§ 11378; count 4). With respect to counts 1, 2, and 4, the
information alleged Cruz had suffered three prior convictions within meaning of section
11370.2, subdivisions (a) and (c). The information also alleged Cruz had served two
prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
       Prior to his preliminary hearing, Cruz filed a motion to suppress the evidence
against him, which was denied. After being held to answer, Cruz filed a motion to
dismiss the information on the grounds the trial court erroneously denied his motion to
suppress. The trial court denied that motion as well and, on January 15, 2014, Cruz pled
no contest to possession of methamphetamine for sale, admitted having three prior
convictions within meaning of section 11370.2, subdivision (c), and to serving one prior
prison term within meaning of Penal Code section 667.5, subdivision (b). In accordance
with the plea, the trial court sentenced Cruz to a stipulated term of three years in local
custody, followed by 10 years of mandatory supervision.


1
      Unless otherwise specified, all subsequent statutory references are to the Health
and Safety Code.
                                              2.
                               STATEMENT OF FACTS2
       On May 2, 2013, Cruz was on probation and under surveillance by Rodolfo Rivera
and other officers with the Kern County Probation Department assigned to the gang
intervention and suppression team. Officer Rivera knew that Cruz was on searchable
felony probation for narcotics sales and had previous contact with Cruz one year before,
in which he found $20,000 cash in Cruz’s house while he was on probation. Rivera also
knew that Cruz was a member of the Colonia Bakers criminal street gang.
       At approximately 9:30 p.m., Officer Rivera was notified by other probation
officers that a white Chevy Malibu had driven into the driveway of a residence at 2643
Potomac Street in Bakersfield. Rivera had seen Cruz driving that car earlier in the day,
and it was reportedly seen outside the same residence with Cruz and an unidentified
Hispanic woman at 6:30 p.m. When Rivera arrived around 9:30 p.m., the Malibu was
parked in the driveway, with Alicia Rangel in the driver’s seat. It was extremely dark.
Using a flashlight, Rivera saw Cruz standing in the backyard of the residence. Officer
Rivera made contact with Cruz, searched him, and found about $3,900 in cash on his
person.
       After making contact with Cruz, Officer Rivera noticed that the front door of the
residence was slightly ajar, and he could see into the house and saw lights on. Rivera
was also aware that the Potomac house was within the traditional boundaries of the
Colonia Bakers. Based on the facts that Cruz was a gang member, the Potomac house
was within his gang’s territory, it was late at night, and lights were on in the house,
Officer Rivera and the supervising officer at the scene decided to conduct a protective
sweep of the house for purposes of officer safety. Officer Rivera testified that this
protective sweep was a cursory search of the house conducted for the sole purpose of



2
       All facts are taken from the motion to suppress hearing and the preliminary
hearing which were held on the same day before the same court.
                                              3.
making sure no one else was present in the house who could “surprise officers.” No one
was found in the house.
       Despite not locating anyone in the home, items found in plain view during the
protective sweep caught Officer Rivera’s attention. Inside one of the bedroom closets,
Rivera found a piece of mail addressed to Cruz but at a different address; it was
addressed to Cruz’s reported probation address at 1024 Exchange. In that same closet, a
dry cleaning receipt bearing Cruz’s name was found attached to garments hanging in the
closet. No exploratory manipulation was used when examining the receipt or the mail.
Another officer also found suspected heroin, methamphetamine, and cocaine on top of
the kitchen microwave during the course of the protective sweep. The suspected drugs
were seized as contraband. When asked by Officer Rivera, Cruz denied living at the
Potomac house and said that he had not been there in days and he did not know why his
mail was found in the house. However, Cruz was able to tell Officer Rivera where the air
conditioning switch was.
       Officer Rivera testified that he had no doubt after the protective sweep that Cruz
was associated with the Potomac house. This perceived association with the house and
Cruz’s probation status led Officer Rivera and his partners to conclude that a more
thorough probation search of the house was legally justified. During this subsequent
probation search, additional suspected drugs and more than $100,000 in cash were found.
A rental agreement to the house with Cruz’s sister’s, Flor Cruz, name on it was also
found underneath the kitchen sink. The lease covered the time period of the search. Keys
to the Potomac house were attached to the keys to the Malibu parked in the driveway.
Although it was never established who those keys belonged to, the trial court found Cruz
“at least circumstantially” had authority over keys to the house.
       Prior to trial, Cruz filed a motion to suppress the evidence against him on the
grounds it was procured during an unlawful search. The district attorney argued in


                                             4.
opposition that Cruz could not prove that he had standing to challenge the search of the
Potomac house.
       The trial court denied the motion, finding that Cruz had standing to challenge the
search and the initial search was a lawful protective sweep for officer safety. The court
also held that a further search of the house after the protective sweep was justified
because of Cruz’s probationary status and because the court found sufficient evidence
that Cruz was occupying the house on more than transitory basis.
       The preliminary hearing continued after the trial court denied the motion to
suppress. Further evidence of what was seized in the searches was introduced, including
an iPhone found on top of a bed in one of the bedrooms. Pictures on the iPhone included
self-portraits by Cruz and three children. Photos of the three children also showed them
at a dining room table located in the Potomac house. The table was covered with a large
amounts of U.S. currency.
       Defendant was held to answer. Following the trial court’s rulings, Cruz entered a
negotiated plea of no contest, and this appeal followed.
                                      DISCUSSION
       On appeal, appellant contends the trial court erred in denying his motion to
suppress because the protective sweep of the house was not legally justified. Respondent
argues appellant may not raise the issue of the search since he failed to demonstrate he
had an expectation of privacy in the Potomac house.

   I. CRUZ MET HIS BURDEN OF PROVING THAT HE HAD A REASONABLE
        EXPECTATION OF PRIVACY IN THE POTOMAC HOUSE RESIDENCE
       A. Standard of Review
       When reviewing a trial court’s ruling on a Penal Code section 1538.5 motion to
suppress evidence, we review the trial court’s determination of the historical facts under
the “deferential substantial evidence standard” and independently review the application
of law to the facts. (People v. Brendlin (2008) 45 Cal.4th 262, 268.)

                                             5.
       B. Applicable Law
       “‘Fourth Amendment rights are personal rights which ... may not be vicariously
asserted.’” (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) “The established principle
is that suppression of the product of a Fourth Amendment violation can be successfully
urged only by those whose rights were violated by the search itself, not by those who are
aggrieved solely by the introduction of damaging evidence.” (Alderman v. United States
(1969) 394 U.S. 165, 171-172.) The defendant bears the burden of showing a legitimate
expectation of privacy. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104.) A defendant
challenging that his or her rights were violated by an unlawful search must first establish
he or she had a “‘legitimate expectation of privacy in the invaded place’” or the seized
thing. (United States v. Salvucci (1980) 448 U.S. 83, 91-92.)
       “The legitimacy of the expectation of privacy is determined under the totality of
the circumstances.” (People v. Tolliver (2008) 160 Cal.App.4th 1231, 1239.) “Whether
the defendant had a legitimate expectation of privacy is subject to a two-part test: (1) did
the defendant manifest a subjective expectation of privacy in the object of the search? and
(2) is society willing to recognize the expectation of privacy as legitimate?” (Ibid., citing
California v. Ciraolo (1986) 476 U.S. 207, 211.) “‘In other words, the defendant must
show that he or she had a subjective expectation of privacy that was objectively
reasonable.’” (People v. Ayala (2000) 23 Cal.4th 225, 255.) An expectation of privacy is
reasonable if it “has ‘a source outside of the Fourth Amendment, either by reference to
concepts of real or personal property law or to understandings that are recognized and
permitted by society.’” (Minnesota v. Carter (1998) 525 U.S. 83, 88 (Carter).)
       While “an overnight guest in a home may claim the protection of the Fourth
Amendment, ... one who is merely present with the consent of the householder may not.”
(Carter, supra, 525 U.S. at p. 90.) In other words, “[b]eing legitimately on the premises,
without more, is insufficient” to establish a reasonable expectation of privacy. (People v.
Rios (2011) 193 Cal.App.4th 584, 591.) Only in “‘extraordinary situations’” will
                                             6.
someone who is not an overnight guest have a legitimate expectation of privacy in a
residence. (People v. Cowan (1994) 31 Cal.App.4th 795, 799 (Cowan).)
       To determine whether an extraordinary situation is present, courts will examine
whether the defendant “had authority to be in the [residence] alone, to enter without
permission, to store anything there, to invite anyone (with or without the host’s approval),
or to visit without advance [notice,]” and whether the defendant “had ever stayed at the
[residence] for an extended time.” (Cowan, supra, 31 Cal.App.4th at p. 800, fn. omitted.)
Additionally, the court in People v. Roybal (1998) 19 Cal.4th 481, 507 (Roybal), held that
courts may consider whether the defendant has a property or possessory interest in the
place searched or the items seized, has a right to exclude others from the place, and was
legitimately on the premises.
       This court in People v. Allen (1993) 17 Cal.App.4th 1214, 1222 (Allen), relying on
United States v. Hawkins (11th Cir. 1982) 681 F.2d 1343, 1346, held that a court may not
base its determination of a lack of standing exclusively on the defendant’s disclaimer of
ownership, since it is legally possible to not own a residence, yet still retain a reasonable
expectation of privacy in it.
       C. Analysis
       Upon review of the evidence submitted to the trial court, we conclude the evidence
was sufficient to support a finding that Cruz had a reasonable expectation of privacy in
the Potomac house and occupied the house on more than a transitory basis. As discussed
below, sufficient evidence was presented at the preliminary hearing to satisfy multiple
factors from Cowan, supra, 31 Cal.App.4th at page 800, and Roybal, supra, 19 Cal.4th at
page 507, establishing Cruz’s reasonable expectation of privacy in the Potomac house.
       Cruz offered sufficient evidence to support a finding that he had authority to both
be in the residence alone and enter without permission. The fact that Cruz had a key to
the house is probative of both of these factors. Even if Cruz is not the owner or lessee of
the house, the fact that the owner or lessee gave him a key to the house implies that he
                                              7.
had such authority. Furthermore, the fact that Officer Rivera found Cruz alone in the
backyard with the door open, the lights on, and no one else inside is evidence of Cruz’s
                                                                       3
authority to be in the residence alone and enter without permission.
       Moreover, there is clear evidence that Cruz had the authority to store items in the
house. The dry-cleaning receipt and garments in the closet along with mail
correspondence addressed to him, albeit to a different address, is probative of this
authority because people traditionally do not store clothing in a residence unless they are
occupying it on more than a transitory basis. The particular location of the dry-cleaning
and mail is also telling because these items were found in a bedroom closet and transitory
guests usually do not store items in a bedroom closet.
       There was also ample evidence that Cruz had been at the house on prior occasions.
The most basic evidence of this is that Cruz knew the location of the air conditioning
switch. Additionally, the photographs on the iPhone place Cruz in the house on a prior
occasion, and show that Cruz had knowledge of the large sums of cash. That the iPhone
was found on the bed in the same bedroom as the dry-cleaning and mail provides further
evidence of Cruz’s association with the northeast bedroom of the house. Finally, Officer
Rivera testified that he had received information from a different officer that Cruz had
been observed at 6:30 p.m. that same day at the Potomac house with an unidentified
female passenger in the white Chevrolet Malibu; Officer Rivera received this information
prior to confronting Cruz in the backyard.
       The fact that the lease agreement found under the sink listed Cruz’s sister, Flor, as
the lessee supports an inference that Cruz had permission to enter his sister’s home. No
evidence was presented that Cruz broke into the house, nor was there reason to believe
Cruz was not welcome there.

3
      There is also no evidence or allegation that Cruz broke into the house or that he
made an unauthorized copy of the house key.

                                             8.
       Finally, Officer Rivera’s own testimony at the motion to suppress hearing is
perhaps most probative of Cruz’s reasonable expectation of privacy in the Potomac
house. Officer Rivera testified that, after conducting the protective sweep of the
residence, he had no doubt that Cruz was associated with the house.
       Although Cruz told Officer Rivera that he did not live at the house at 2643
Potomac, appellant’s statement is not enough to hold that Cruz did not have a reasonable
expectation of privacy. (Allen, supra, 17 Cal.App.4th at p. 1222.) While Cruz did not
offer conclusive evidence that he was consistently spending the night at the house, he
presented sufficient evidence of a reasonable expectation of privacy in the house based
on his access and control over the house.
       While most of these facts, taken individually, would be insufficient to support a
finding that Cruz had a reasonable expectation of privacy in the Potomac house
residence, we are of the opinion that they do support such a finding when examined
together under the totality of the circumstances. Using our independent judgment, we are
satisfied that Cruz has met his burden.
   II. THE PROTECTIVE SWEEP WAS LEGALLY JUSTIFIED
       Cruz argues that the protective sweep was impermissible because (1) it was
pursuant to a detention and not an arrest, and (2) the officers had no reasonable suspicion
supported by articulable facts that anybody threatening was inside the house.
Additionally, Cruz contends that there was an unreasonably prolonged detention.
Initially, we find that the detention was not unreasonably prolonged. We further
conclude Cruz’s contentions regarding the protective sweep rest on a misunderstanding
of applicable law.
       A. Standard of Review
       When reviewing a trial court’s ruling on a Penal Code section 1538.5 motion to
suppress evidence, we review the trial court’s determination of the historical facts under


                                             9.
the “deferential substantial evidence standard” and independently review the application
of law to the facts. (People v. Brendlin, supra, 45 Cal.4th at p. 268.)
       B. Cruz’s detention was not unreasonably prolonged
       Cruz does not challenge the initial stop and frisk conducted by Officer Rivera.
Rather, Cruz contends that once Officer Rivera found the approximately $3,900 in cash
on his person, there was no longer any reason to further detain him. Specifically, Cruz
argues that, without more, the $3,900 found on his person cannot support anything more
than a hunch that he is engaged in criminal activity. However, Cruz fails to recognize
that additional evidence of criminal activity was presented. Cruz was a member of a
criminal street gang which sold narcotics. He was also on felony probation for narcotics
sales, and Officer Rivera had found a large sum of money on Cruz’s person on at least
one prior occasion. As Officer Rivera testified, it is his experience that gang members
and drug dealers will carry large sums of cash for illegal purposes. Under the totality of
the circumstances, these facts were certainly enough to support a reasonable suspicion
that Cruz was engaged in criminal activity, and therefore Officer Rivera was permitted to
detain him for a reasonable amount of time to ask questions and conduct a protective
sweep, which the trial court described as “a brief sweep” to “ensure safety.”
       C. The legality of the protective sweep4
       “Warrantless searches of residences are ‘presumptively unreasonable’ under the
Fourth Amendment to the United States Constitution. [Citation.]” (People v. Werner
(2012) 207 Cal.App.4th 1195, 1198 (Werner).) However, there are several exceptions to
the warrant requirement. “One such exception is the protective sweep.” (Id. at p. 1205.)
“A ‘protective sweep’ is a quick and limited search of premises, ... 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.” (Maryland v. Buie (1990)

4
       As confirmed during oral argument, Cruz does not challenge the seizures which
occurred after the protective sweep was completed, based on his probationary status.
                                             10.
494 U.S. 325, 327 (Buie).) A law enforcement officer may conduct a protective sweep of
premises “if the ... officer ‘possesse[s] a reasonable belief based on “specific and
articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant[]” the officer in believing’” that the area to be swept harbors an
individual who poses a danger to the officers or others. (Ibid.)
          1. Protective sweeps can be conducted in conjunction with a detention
              Cruz argues that the protective sweep was impermissible because it was
conducted in conjunction with a detention outside of the house, and not incident to a
lawful arrest. In making this argument, Cruz relies on Buie, where a protective sweep
was conducted in conjunction with an arrest. (Buie, supra, 494 U.S. 325.) However,
since Buie, ample cases lead us to hold that protective sweeps are just as proper during
detentions outside of a house, as they are during arrests outside a house. The court in
Werner specifically held that protective sweeps are “not limited to situations immediately
following an arrest,” but “may occur in [connection] with a suspect’s detention,” citing
our Supreme Court in People v. Celis (2004) 33 Cal.4th 667, 678. (Werner, supra, 207
Cal.App.4th at p. 1206.) Werner involved a detention inside a house, while Celis
involved a detention outside a house. While both courts ultimately held the protective
sweeps were unlawful, they did so by concluding that the evidence lacked articulable
facts supporting a reasonable suspicion that the area to be swept harbored an individual
who poses a danger to the officers or others. (Werner, supra, 207 Cal.App.4th at p. 1209;
Celis, supra, 33 Cal.4th at p. 679.) Both cases assumed that a valid protective sweep
could follow a valid detention.
       It would be unreasonable to hold that protective sweeps incident to arrests outside
the house are permissible, but sweeps incident to detentions outside the house are not.
This is because the potential threat to an officer detaining a person outside of a house is
exactly the same as the threat to an officer arresting someone outside of the same house.
Although neither the Supreme Court of the United States nor any California court has
                                             11.
specifically upheld a protective sweep in conjunction with a detention outside of a house,
there is at least one case from another court which so holds. In United States v. Meza-
Corrales (9th Cir. 1999) 183 F.3d 1116, the Ninth Circuit upheld a protective sweep of a
residence conducted while the suspect was detained, but not arrested, outside of the
residence.
       In sum, we conclude Cruz’s distinction between protective sweeps incident to
arrests and sweeps incident to detentions is logically unsound and frustrates the policy
behind the protective sweep exception to the warrant requirement.
             2. There were articulable facts to support a reasonable suspicion
       Law enforcement officers may conduct a protective sweep of a home if officers
are aware of facts that reasonably indicate that there is another person on the premises
that poses a threat to the officers. (Buie, supra, 494 U.S. at p. 334.) Cruz argues that
“[t]here was essentially no evidence that anyone was inside the house, much less that
anyone who was a threat was inside.” We disagree.
       As to the first requirement from Buie, there were articulable facts that gave Officer
Rivera reason to suspect that someone else was in the house. First, there were lights on
in multiple rooms, and this was, by itself, enough reason to suspect that someone else
may have been in the house. It is important to stress that the officers did not need
conclusive proof that someone else was on the premises; a reasonable suspicion is all that
is required.
       Cruz is correct in asserting that a reasonable suspicion that someone else is on the
premises is not enough to warrant a protective sweep; there must additionally be a
reasonable suspicion that this person poses a threat to officer safety, as stated in the
second requirement of the Buie rule. In the present case, there were ample articulable
facts that gave the officers reason to suspect that a person in the house would have been a
threat to them. The detention occurred at night in a gang-controlled neighborhood, and
the person detained was not only a convicted felon on probation, but also a member of a
                                             12.
criminal street gang whose members are known to carry weapons for offensive and
defensive purposes. Additionally, the safety concern of the front door being ajar cannot
be minimized. A surprise attack on the officers could be carried out much more quickly
and effectively by someone inside the house if the front door were at least slightly open.
Again, the officers did not need to have conclusive proof that the other potential
occupants of the house would have been a threat to the officers; a reasonable suspicion
would have done. The reasonable possibility of there being gang members in the house,
at night, within their gang’s territory, and potentially armed is more than ample reason for
the officers to be suspicious of a threat. Officer Rivera and his partners had reason to be
concerned for their safety and therefore a quick, cursory sweep of the premises was
permissible.
                                         DISPOSITION
       The judgment is affirmed.




                                            13.
