Filed 8/12/16 P. v. Dinh CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042517
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1497950)

         v.

MAN QUOC DINH,

         Defendant and Appellant.



         Defendant Man Quoc Dinh brought motions to suppress evidence (Pen. Code,
§ 1538.5, subd. (i))1 and to set aside the information (§ 995). The trial court granted the
motions and the People have appealed from these orders. We conclude that the trial court
properly granted the motion to suppress evidence which was found during the officer’s
initial unlawful search. However, we also conclude that the trial court erred when it
granted the motion to suppress evidence which was later found after defendant’s wife
gave her consent to search. Accordingly, the orders are reversed.




1
         All further statutory references are to the Penal Code.
                                  I. Statement of the Case
       A felony complaint alleged that defendant committed the offenses of possession of
a firearm by a felon (§ 29800, subd. (a)(1)) and possession of ammunition by a felon
(§ 30305, subd. (a)(1)).
       At defendant’s preliminary hearing, the magistrate heard defendant’s suppression
motion. The magistrate denied the motion and held defendant to answer on the
complaint.
       An information charged defendant with two counts of possession of a firearm by a
felon, one count of possession of ammunition by a felon, and one count of possession of
an assault weapon (§ 30605, subd. (a)).
       Defendant renewed his suppression motion in the trial court and additional
testimony from Officer Vinh Trinh was introduced. The trial court granted the motion to
suppress. The trial court also granted defendant’s section 995 motion to set aside the
information and the case was dismissed.


                                   II. Statement of Facts
       At approximately 1:20 a.m., on November 6, 2014, Officer Trinh and three other
officers went to defendant’s residence. Officer Trinh had been informed that a battery
and vandalism had occurred “in another part of the city” at 1:00 a.m. or shortly thereafter
and the suspects had left a van, which was registered in defendant’s name, at the scene.
According to Officer Trinh, defendant was not considered a suspect because he did not
match the description of any of the suspects. Prior to making contact with defendant, the
officer had conducted a records check and discovered that defendant had an outstanding
arrest warrant for battery and brandishing a weapon. Officer Trinh did not know if the
warrant authorized nighttime service and he did not request a criminal history check.
       Defendant’s residence was located in a four-unit apartment complex. There were
two upstairs units and two downstairs units with an attached laundry room located on the

                                             2
side of the building. The officers knocked on the door of apartment 3, which was on the
ground floor. Jenny Tran, defendant’s wife, answered the door. The officers explained
that they were conducting an investigation involving defendant’s van and asked to speak
to him. Tran responded that defendant was in the laundry room around the corner. The
laundry room was about 30 to 35 feet away from the door to defendant’s apartment. The
only access to the laundry room was through a door on which there was a locking handle
and a dead bolt.
       After the officers knocked on the door to the laundry room, two men opened the
door and exited the room. One of the men identified himself as defendant. At that point,
Officer Trinh was about three feet away from the open door. The room was
approximately 10 feet by 20 feet. It appeared to Officer Trinh that “it just wasn’t a
functional laundry” and was used as a storage facility. In addition to the washer and
dryer, there were chairs, a very large toy jeep propped up against the wall, food, seat
cushions, a couple of rolled up rugs, blankets, beer bottles, a cooler, cooked noodles,
cups, and a make-shift desk with a laptop computer on it. The beer, cups, cooked
noodles, and a poker-related Web site displayed on the laptop computer indicated to
Officer Trinh that the room was also a “hang out place.” He thought that 10 to 15 people
could have fit in the room.
       Approximately two to three minutes after the two men exited the room, Officer
Trinh “made a decision to conduct a protective sweep just to make sure there was no one
else in the laundry room.” The officer was not able to see behind the door, the washing
machine, or the dryer. While three of the officers questioned the two men, Officer Trinh
entered the laundry room. He walked around the door to make sure no one was standing
behind the door and looked into other areas where people could be hiding. When he was
in the middle of the room, he saw a pistol on a seat cushion across the room. The nine-
millimeter pistol was loaded. The officer also saw multiple rounds of .380 caliber
ammunition.

                                             3
       After defendant and his companion were handcuffed for officer safety, Officer
Trinh and Sergeant Petrokavick returned to defendant’s apartment and knocked on the
door. Tran opened the door, but the steel cage door was still closed. Sergeant
Petrokavick asked Tran for the location of the “380.” When Tran appeared confused,
Officer Trinh asked her where her husband kept his guns. Tran responded that he kept
them under their bed. He asked her if it was all right if she could show him where
defendant kept his guns. She replied, “Okay,” opened the steel cage door, and allowed
them in. The officers followed her to her bedroom where she pointed to the bed and said,
“It’s under the bed.” Officer Trinh did not ask if he could search under the bed. The
officer got down on his knees, looked under the bed, and removed an open gun case.
When he pulled the gun case out from underneath the bed, he noticed that it was a TEC 9,
which is considered an assault weapon. The serial number had been removed from the
weapon. The weapon had an extended magazine clip with nine-millimeter rounds. There
was also a bag containing miscellaneous caliber rounds. Sometime after confiscating the
firearms, Officer Trinh learned that defendant was a felon.
       Officer Trinh showed Tran the pistol that had been found in the laundry room.
She told him that “her family and her husband’s parents that live upstairs, only those two
families would use the laundry room as a storage facility and no one else would really
bother it.” Tran also told the officers that defendant would often use the laundry room to
play online poker on his computer, hang out with his friends, drink, and smoke, because
she would not allow these activities in their apartment.


                                      III.   Discussion
       The Fourth Amendment, made applicable to the states through the due process
clause of the Fourteenth Amendment, protects the individual against unreasonable
searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 655-660.) Evidence obtained



                                             4
by a police officer in violation of the Fourth Amendment is subject to the exclusionary
rule. (Segura v. United States (1984) 468 U.S. 796, 804.)
        “A criminal defendant may test the unreasonableness of a search or seizure by
making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the
motion in superior court if held to answer.” (People v. Superior Court (Cooper) (2003)
114 Cal.App.4th 713, 717.) Where new evidence is admitted before the superior court,
we defer to the superior court’s factual determinations where supported by substantial
evidence. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) “In determining
whether, on the facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser
(1995) 11 Cal.4th 354, 362.)
        “The threshold question in any Fourth Amendment analysis is whether the person
challenging the allegedly unlawful search had a constitutionally protected reasonable
expectation of privacy with respect to the area or item searched. [Citation.] This
involves a two-part inquiry: ‘first, has the individual manifested a subjective expectation
of privacy in the object of the challenged search? Second, is society willing to recognize
that expectation as reasonable?’ [Citations.] [¶] The reasonableness of a claimed
expectation of privacy depends on the totality of circumstances presented in each case.
[Citations.] The burden is on the defendant to prove that he or she had a protectible
expectation of privacy in the area or item searched. [Citations.]” (In re Baraka H.
(1992) 6 Cal.App.4th 1039, 1044.)
        Relying on cases involving common areas in a building complex, the People
contend that defendant did not have a reasonable expectation of privacy in the laundry
room.
        Here, the record establishes that the laundry room was within 35 feet of
defendant’s front door. Though defendant’s wife referred to the room as a laundry room,
it did not appear to Officer Trinh as “a functional laundry” room. Only defendant’s

                                             5
family and his parents used the room to store property, including chairs, a very large toy
jeep, food, seat cushions, rolled up rugs, blankets, beer bottles, a cooler, cooked noodles,
cups, and a make-shift desk with a laptop computer on it. Defendant often used this room
to play online poker on his computer, hang out with his friends, drink, and smoke. This
evidence established that defendant had manifested a subjective expectation of privacy in
the room. The presence of beer, cups, cooked noodles, and a poker-related Web site on
the laptop computer indicated to Officer Trinh that the room was also a “hang out place.”
Moreover, the door to the room had a locking handle as well as a deadbolt, and
consequently was not open to the public. Thus, defendant’s expectation of privacy in the
room was reasonable.
       The cases upon which the People rely are factually distinguishable. People v.
Galan (1985) 163 Cal.App.3d 786 (Galan) held that there was no reasonable expectation
of privacy in the garage of a condominium complex in which: (1) individuals commonly
entered apartments through the garage; (2) the garage door was open and accessible to the
public; (3) the addresses of the tenants occupying the apartments were posted on the
garage door; and (4) there were no signs prohibiting entry to anyone who wanted to visit
a tenant or conduct business. (Id. at p. 793.) People v. Kilpatrick (1980) 105 Cal.App.3d
401 (Kilpatrick)2 concluded that “[t]he open carport area was used commonly by all
motel tenants and thus was not a private, constitutionally protected space.” (Id. at
p. 409.) In contrast to Galan and Kilpatrick, here, the laundry room was not open to the
public. People v. Petersen (1972) 23 Cal.App.3d 883 held that the trial court properly
admitted evidence pertaining to dynamite which was found by a police trainee who
“entered the garage out of concern for his own safety as a tenant of the apartment
complex, and was acting as a private citizen only.” (Id. at pp. 893-894.) Unlike in

2
       Kilpatrick, supra, 105 Cal.App.3d 401 was disapproved on other grounds in
People v. Bustamante (1981) 30 Cal.3d 88, 102, which in turn was superseded by
constitutional amendment.

                                              6
Petersen, Officer Trinh was not acting in a private capacity and he was not a tenant of the
apartment complex.
       People v. Shaw (2002) 97 Cal.App.4th 833 (Shaw) and People v. Willard (1965)
238 Cal.App.2d 292 (Willard) do not support the People’s position. Shaw concluded that
the defendant’s “going out into the common area of an apartment complex and placing
drugs in a hole in the ground is simply not the sort of activity reasonably tied to any
proper expectation of privacy. . . . [¶] The dispositive factor here is that [the defendant]
was not in exclusive control of the area in which he secreted the narcotics.” (Shaw, at
p. 839.) In Willard, the officers passed through an open gate and proceeded to the rear
door, which was on the side of the duplex and appeared “to have been a normal means of
access to and egress from that part of the house.” (Willard, at p. 307.) As an enclosed
structure, the locked room in the present case is readily distinguishable from the backyard
in Shaw and the side yard in Willard.
       People v. Howard (1976) 63 Cal.App.3d 249 also does not assist the People. In
Howard, the police officers gained entry through the locked door of an apartment
building by entering when someone else used a key. (Id. at p. 253.) After the officers
went to the defendant’s apartment and asked to enter, he gave his consent. (Ibid.)
Howard held that the defendant’s constitutional rights were not violated by the officer’s
entry to the hallway through the locked door. Howard reasoned: the apartment manager
had previously given a key to the officers and thus they had permission to enter the
apartment building; and the locked door served to prevent the public from roaming
through the building and a tenant could protect his own privacy by not answering the
door. (Id. at p. 254.) Unlike Howard, here, the officer did not have permission from the
apartment manager or anyone else to enter the room. Moreover, as Officer Trinh
observed, defendant had been engaging in activities in the room that indicated his




                                              7
expectation of privacy. Thus, the laundry room was not analogous to a hallway in a
multi-tenant building which was used by other tenants as well as members of the public.3
       In sum, we conclude that defendant had a reasonable expectation of privacy in the
laundry room.
       “ ‘[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only
to a few specifically established and well-delineated exceptions.’ [Citation.]” (Arizona
v. Gant (2009) 556 U.S. 332, 338.) Here, since the officers did not have a search warrant
for the laundry room, the People bore the burden of proving that an exception to the
warrant requirement applied. (People v. Camacho (2000) 23 Cal.4th 824, 830.) The
People have relied on the protective sweep exception. (Maryland v. Buie (1990) 494 U.S.
325, 327 (Buie).) “A ‘protective sweep’ is a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police officers and others. It is
narrowly confined to a cursory visual inspection of those places in which a person might
be hiding.” (Ibid.) A protective sweep is permissible under the Fourth Amendment “if
the searching officer ‘possesse[d] a reasonable belief based on “specific and articulable
facts which, taken together with the rational inferences from those facts, reasonably
warrant[ed]” the officer in believing,’ [citations], that the area swept harbored an
individual posing a danger to the officer or others.” (Ibid.) However, “a protective
sweep may not be based on ‘a mere “inchoate and unparticularized suspicion or
‘hunch . . . .’ ” ’ [Citation.]” (People v. Celis (2004) 33 Cal.4th 667, 678.) Generalized
concern for officer safety or the uncertainty of the particular circumstance is not enough
justification. (See People v. Werner (2012) 207 Cal.App.4th 1195, 1209.)

3
       United States v. Nohara (9th Cir. 1993) 3 F.3d 1239, 1242, United States v.
Conception (7th Cir. 1991) 942 F.2d 1170, 1171-1172, United States v. Holland (2d Cir.
1985) 755 F.2d 253, 255, and United States v. Eisler (8th Cir. 1977) 567 F.2d 814, 816
involved common hallways and are distinguishable from the present case for the same
reasons.

                                              8
       Applying the Buie standard to the present case, we conclude that the protective
sweep was not justified. Officer Trinh merely testified that he “did not know if there was
anyone else left inside the laundry room.” His testimony did not include facts indicating
that he had any reason to believe that another person, let alone a dangerous one, remained
in the laundry room. He did not testify that he heard any noises or saw any vehicles or
people on the premises. Thus, his decision to conduct a protective sweep was not based
on a reasonable belief that the laundry room harbored a dangerous person.
       The People point out that the suspects in the vandalism and battery incident, who
had used a van registered in defendant’s name, were still at large and that defendant had
an outstanding arrest warrant for battery and brandishing a weapon. Thus, they argue that
these facts established a reasonable safety concern and justified Officer Trinh’s decision
to conduct a protective sweep. We disagree.
       Here, Officer Trinh never testified that he believed that the suspects involved in
the battery and vandalism were present in the laundry room. He knew that a van
registered in defendant’s name had been abandoned by these suspects, the offenses had
recently occurred “in another part of the city,” and defendant was “likely not one of the
suspects.” Defendant, who was Asian, did not match the description of the suspects in
the recent crime. Officer Trinh had no information that defendant knew any of the
suspects or that he had loaned his car to any of them. Moreover, there was no
information as to when or where those recent crimes had occurred. Thus, it was mere
speculation that the suspects might have reached the laundry room before the officers
contacted defendant.4




4
       The People also argue that “the officers needed to inquire as to [defendant’s]
‘involvement in the alleged vandalism.’ ” There is no question that the officers properly
questioned defendant. However, this fact is irrelevant to a determination of whether the
officer was justified in conducting a protective sweep.

                                             9
       Officer Trinh also knew that defendant had an outstanding warrant for battery and
brandishing a weapon. The People argue that “it would indeed be a ‘rational inference’
that [defendant] was quite familiar with weapons and how to use them.” However,
defendant’s familiarity with weapons did not support the officer’s belief that the laundry
room harbored a dangerous individual. (See United States v. Colbert (6th Cir. 1996) 76
F.3d 773, 777 [That defendant “ ‘was on escape status at the time, he was wanted for
murder, he was under investigation for possible involvement in drug trafficking’ . . . are
not appropriate facts to consider when determining whether the arresting officers
reasonably believed that someone else inside the house might pose a danger to them.”
(Italics in original.)].) Though Officer Trinh knew about defendant’s outstanding arrest
warrant prior to the protective sweep, this information related to defendant’s potential
dangerousness, and he was outside the laundry room.5
       The People’s reliance on People v. Maier (1991) 226 Cal.App.3d 1670 is
misplaced. In Maier, the defendant committed robberies and murders with accomplices.
(Id. at pp. 1672-1673.) The trial court found that the protective sweep reasonable: “ ‘The
evidence clearly shows that the police knew that [the defendant] habitually pursued his
criminal activities with accomplices in a most dangerous manner. This was his modus
operandi. Accordingly, it was both reasonable and proper for the police to search the
house for other suspects after the defendant was apprehended and arrested.” (Id. at
p. 1675.) Thus, the Court of Appeal found no constitutional violation. (Id. at p. 1677.)
Unlike in Maier, here, Officer Trinh had no reason to believe that defendant currently
associated with criminals or was involved in any criminal enterprise. The officer had no



5
       The evidence does not establish that the warrant was a felony arrest warrant rather
than a misdemeanor arrest warrant. (See §§ 242, 243, 417.) A misdemeanor arrest
warrant ordinarily cannot be executed at night (§ 840), and Officer Trinh did not know
whether the warrant authorized nighttime service and he did not have the warrant in his
possession. Thus, the seriousness of the crimes upon which the warrant issued is unclear.

                                            10
reason to believe that any criminal activity, much less criminal activity posing a risk of
violence, was occurring in the laundry room before defendant and another man came out.
       In sum, Officer Trinh was apprehensive for officer safety because he could not see
the entire laundry room through the open door. Since he acted without specific,
articulable facts supporting a reasonable suspicion that a person was still inside the
laundry room and that person was dangerous, the protective sweep was not justified.
Accordingly, the evidence of the pistol and the ammunition in the laundry room was
properly excluded.
       The People contend that, even if the protective sweep was unlawful, there was an
intervening circumstance which broke the causal connection between the illegal conduct
and the seizure of the assault weapon in defendant’s residence. Defendant argues that the
search of the laundry room tainted the search of defendant’s home.
       “ ‘ “[N]ot . . . all evidence is ‘fruit of the poisonous tree’ simply because it would
not have come to light but for the illegal actions of the police. Rather, the more apt
question in such a case is ‘whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the primary
taint.’ ” ’ [Citations.] ‘[B]ut-for cause, or “causation in the logical sense alone,” [citation]
can be too attenuated to justify exclusion . . . .’ [Citations.]” (People v. Brendlin (2008)
45 Cal.4th 262, 268 (Brendlin).) In determining whether an intervening circumstance
was sufficient to break the causal connection between the evidence and the unlawful
activity, a court considers three factors: “ ‘the temporal proximity of the Fourth
Amendment violation to the procurement of the challenged evidence, the presence of
intervening circumstances, and the flagrancy of the official misconduct.’ ” (Id. at p. 269.)
       Here, after Officer Trinh found the ammunition in the laundry room, he and
another officer immediately went to defendant’s apartment to search for another weapon.



                                              11
Thus, the illegal search of the laundry room was very close in time to the discovery of the
assault weapon.
       As to the second factor, defendant contends that there were no intervening
circumstances. However, the magistrate found that Tran gave her consent to enter the
apartment and thus the officers properly seized the assault weapon. “The Fourth
Amendment generally prohibits the warrantless entry of a person’s home, whether to
make an arrest or to search for specific objects. [Citations.] The prohibition does not
apply, however, to situations in which voluntary consent has been obtained . . . .”
(Illinois v. Rodriguez (1990) 497 U.S. 177, 181.) “To ascertain if the prosecution has met
its burden of establishing the consent exception to the warrant requirement, the trial court
determines whether an officer’s belief that he or she had consent to search is objectively
reasonable under the circumstances. [Citation.]” (People v. Lazalde (2004) 120
Cal.App.4th 858, 865.) Here, when Officer Trinh asked Tran where defendant kept his
guns, she replied that he kept them under the bed. After he also asked her if she could
show him, she replied, “Okay,” opened the door, allowed the officers into the apartment,
led them to her bedroom, pointed to her bed, and said “It’s under the bed.” Though
neither officer expressly requested to search for the guns, Tran’s verbal responses and
conduct established that she consented to a search. Based on this record, Officer Trinh
reasonably believed that Tran had consented to the search.
       As to the third factor, “the flagrancy and purposefulness of the police misconduct,
is generally regarded as the most important because ‘it is directly tied to the purpose of
the exclusionary rule—deterring police misconduct.’ [Citations.]” (Brendlin, supra, 45
Cal.4th at p. 271.) We first note that Officer Trinh’s unlawful protective sweep of the
laundry room was limited in time and scope. Moreover, though there were insufficient
facts on which Officer Trinh based his belief on the need for a protective sweep, he
subjectively believed that there were additional people who might have posed a danger to
the officers. Thus, the officer’s conduct was not an egregious violation of the Fourth

                                             12
Amendment. More importantly, however, suppression of the evidence of the assault
weapon and ammunition would not deter police misconduct, because the officer properly
obtained Tran’s consent before entering and searching for this evidence.
       Considering these factors, we conclude that despite the unlawfulness of the
protective sweep, the assault weapon and ammunition were not the fruit of this initial
search. Tran’s consent to a search for defendant’s guns broke the causal connection
between the illegal conduct and the subsequent search in defendant’s apartment.
Accordingly, the trial court erred in granting the motion to suppress the evidence found in
defendant’s apartment.


                                      IV. Disposition
       The orders are reversed. The trial court is directed on remand to grant the motion
to suppress evidence which was found during the search of the laundry room and to deny
the motion to suppress evidence which was found in defendant’s apartment.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Elia, Acting P. J.




______________________________
Bamattre-Manoukian, J.




                                  14
