Filed 3/2/15 P. v. Jones CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139321
v.
CHRISTOPHER JONES et al.                                             (San Mateo County
                                                                     Super. Ct. No. SC076738A/B)
         Defendants and Appellants.


         Defendants Christopher Jones and Marcus Johnson pleaded no contest to one
felony charge of knowingly maintaining premises for the purpose of manufacturing
marijuana (Health & Saf. Code, § 11366.5, subd. (a)) after the trial court denied their
Penal Code section 1538.5 motion to suppress evidence obtained during searches of their
residence. Defendants appeal the denial of their suppression motion. We conclude there
was no error in ruling on the motion, and we thus affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Evidence at the Suppression Hearing
         Anthony and Rosalie Spiteri owned a house on Baltimore Way in Daly City that
they rented to defendants. On the morning of September 12, 2010, the Spiteris received a
telephone call from a neighbor of the Baltimore Way home informing them there was
water seeping out from under the garage door onto the driveway. They drove to the
house, calling their property manager on the way to ask what they should do. The
property manager told them they had the right to enter the property under the




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circumstances, but that he would also attempt to contacts the tenants, an attempt that
proved unsuccessful.
       Arriving at the house, the Spiteris discovered water seeping out from under the
garage door, as well as dripping out of a vent where the second story overhung the front
of the garage. Describing this as “really alarming,” Mr. Spiteri “knew immediately it was
a serious problem.”
       The Spiteris rang the doorbell and knocked on the front door several times, but
nobody answered. After waiting “a few minutes” to give the tenants sufficient time to
answer, Mr. Spiteri “really felt like . . . somebody needed to go into the home.” Using an
electric garage door opener, the Spiteris opened the garage door, and water immediately
rushed out onto the driveway. There was also a lot of water coming down into the garage
from the second floor—“almost like walking through rain,” according to Mr. Spiteri—
suggesting water was seeping through the floor of the room over the garage.
       Mr. Spiteri entered the house through the garage and followed the sound of
running water. Walking into the bathroom, he discovered that a hose connecting the
water to the toilet tank was disconnected. He tried to shut off the water but was unable to
do so, so he went back outside, where a neighbor shut off the main water valve as well as
the electricity.
       Mrs. Spiteri, who had remained outside, wanted to know where the water had
come from, and Mr. Spiteri wanted to confirm the water had been completely shut off, so
they walked up to the bathroom. Mr. Spiteri confirmed water was no longer flowing out
of the hose. Mrs. Spiteri noticed “weird and strange stuff” in the bathtub—black tubing
that “was at least the length of the bathtub if not circled around one or two times.”
       The Spiteris walked out into the hallway, and Mrs. Spiteri opened the door to the
closest bedroom. Inside, they saw numerous plants that were set up from “wall to wall.”
As Mr. Spiteri described it: “[T]here was plants that were elevated off the floor. They
were kind of like, set up like a little small nursery and there was lighting above and the
lighting was hanging from the ceiling.” There was also piping running around the room,
with holes cut into the walls to accommodate the pipes. Mr. Spiteri did not know exactly


                                             2
what kind of plants they were, but he knew “they weren’t tomato plants” and “it didn’t
take very long [i]n my thought process [to figure out] that it was marijuana.” As
Mr. Spiteri testified, “[B]y the setup of the room it doesn’t take much to quickly
understand what was going on.” He also noticed “a very, very funny smell” throughout
the whole house. Mrs. Spiteri described it this way: “I saw lights for the plants and I saw
a series of plants on tables or some such thing. [¶] . . . [¶] They looked like marijuana
plants based on pictures I’ve seen. It’s in the public domain.”
       Mrs. Spiteri then checked at least one of the other bedrooms and found a similar
arrangement. She did not see or hear anyone inside the home, but she also did not
conduct a thorough inspection of the house. Mr. Spiteri also confirmed that he never saw
anyone inside the house, although he did not inspect all of the closets and similar areas.
       The Spiteris left the house, and Mrs. Spiteri called the police, telling them “we
believed we had marijuana plants in the house.” The police dispatcher instructed her to
close the garage door and meet responding officers a few blocks away.
       At approximately 10:56 a.m., five to 10 minutes after the Spiteris’ call, Daly City
Police Officers Klier, Bray, and McCarthy met the Spiteris at a school around the corner
from the Baltimore Way home. Officer Bray interviewed the Spiteris, who described
what they had seen at their rental home. In turn, Officer Bray contacted then-Sergeant
Michel Price of the Narcotics Task Force and related the information he received from
the Spiteris. Specifically, he told Sergeant Price that the Spiteris had traveled to the
home to investigate a water leak; had knocked on the door and rung the doorbell but no
one had answered; had gone inside; and did not think anyone was inside. He also told
Sergeant Price that officers had not yet been inside the home.
       Based on that information, Sergeant Price directed Officer Bray to freeze the
house, a process that includes a protective sweep. Although he had no information that
there were dangerous individuals or weapons inside the house, Price intended to apply for
a search warrant, and it was standard protocol to freeze the premises while waiting for the
warrant. He was also concerned because “residents often times don’t go in and search
closets . . . where suspects could be hiding.”


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       Sergeant Price further testified that because the Spiteris had already gone inside
the house, he felt it necessary to conduct a protective sweep before freezing the residence
because if anyone was inside, they might know the operation had been discovered and try
to destroy it. If the Spiteris had not gone inside, he would have ordered only that the
officers freeze the house until the search warrant was obtained. Price acknowledged that
even if the Spiteris had not gone inside, the knocking on the door and ringing of the
doorbell would likely have tipped off anyone inside.
       Officers Bray, McCarthy and Klier, along with the Spiteris, returned to Baltimore
Way, and the officers conducted a brief protective sweep of the residence for the
purposes of ensuring that no suspects were inside and no one was destroying any
evidence. During the sweep, Officer Klier observed large marijuana plants in the
bedrooms, with lighting and ventilation equipment and other items of duct work
indicative of a marijuana cultivation operation. The officers did not seize anything, open
any bags or containers, or go through any papers or mail, nor did they encounter any
suspects.
       After completing the protective sweep, the officers returned to the front of the
house and secured the front and garage doors until a search warrant was obtained.
       Sergeant Price arrived at the Baltimore Way house around 11:30 a.m., where he
met the responding officers and the Spiteris. Officer Klier told him he and Officer
McCarthy had cleared the house and had not located anyone. The Spiteris described how
they had received a call from a neighbor reporting that water was leaking from
underneath the garage door, so they drove over to the house. They had contacted their
property management company, who advised that it would be okay to go in and turn off
the water if they could not contact the tenants. They knocked on the front door and rang
the doorbell but did not get a response, so they went inside. Mr. Spiteri found a water
leak coming from the water supply line to the toilet. Mrs. Spiteri opened some of the
bedroom doors and saw what she believed was marijuana growing inside.




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        In light of the information he received, Sergeant Price applied for a search
warrant. In support, he submitted a statement of probable cause that stated in relevant
part:
        “On Sunday, September 12, 2010, at approximately 1100 hours, I received a
telephone call [from] Daly City Police Officer Andre Bray who told me he responded to a
call for service regarding possible indoor marijuana cultivation operation at
[the Baltimore Way home]. Officer Bray told me he met with the reporting parties,
Rosalie Spiteri . . . and her husband, Anthony Spiteri . . . . Officer Bray told me Mrs.
Spiteri told him she and her husband are the owners of the property at [the Baltimore
Way home]. Mrs. Spiteri told Officer Bray that she received a telephone call from a
neighbor of [the Baltimore Way home] at approximately 1030 hours stating that she saw
a large amount of water running down the driveway of [the Baltimore Way home] from
under the garage doors.
        “Mrs. Spiteri told Officer Bray that she and her husband arrived at [the Baltimore
Way home] shortly after. Mrs. Spiteri told Officer Bray that she and her husband
knocked on the front door to the residence and rang the door bell numerous times without
a response. Mrs. Spiteri told Officer Bray that they use a property management company
to handle their property and she called the company prior to their arrival. The person
from the property management company advised her that she could enter the residence to
fix the water problem if she did not receive an[] answer at the door.
        “Mrs. Spiteri told Officer Bray, and later told me, that they entered the property
through the garage door after activating the electronic garage door opener she had in her
possession. Once they entered, they could see a large amount of water pouring through
the garage ceiling. Mr. and Mrs. Spiteri then went upstairs to the bathroom above the
leak and saw a waterline to the toilet was disconnected causing the water to leak.
Mr. Spiteri attempted to turn off the water at the toilet but was unable to.
        “Mrs. Spiteri told Officer Bray, and later told me, that she and her husband looked
in the other rooms of the residence, and saw what they believed to be marijuana growing
from the three upstairs bedrooms. Mrs. Spiteri stated the plants were different heights.


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Mrs. Spiteri stated she and her husband left the residence and called the police. Shortly
[a]fter, Officer Bray and other Daly City Patrol Officers arrived on scene.
       “I arrived on scene at approximately 1130 hours and obtained the above
statements from Mrs. Spiteri and Officer Bray. I asked Mrs. Spiteri if she had the rental
agreement for the property. Mrs. Spiteri told me she was currently in the process of
obtaining that information from her property management company and would provide it
to me at a later date.
       “I spoke with Officer Edward Klier, who told me he and Officer Donald McCarthy
entered the residence to conduct a protective sweep to ensure there were no suspects
inside the residence. Officer Klier told me he found no suspects, and saw three bedrooms
with marijuana plants growing inside of them. He stated the plants were in different
stages of growth, and estimated approximately twenty plants inside each room for a total
of approximately sixty marijuana plants. Officer Klier told me he has been at indoor
marijuana cultivation operations in the past, and is familiar with these types of
operations.”
       Price received a warrant at approximately 1:00 p.m., at which time the warrant
was executed.
       Defendants were charged with four felonies: possession of marijuana for sale
(Health & Saf. Code, § 11359), marijuana cultivation (id., § 11358), knowingly
maintaining premises for the purpose of manufacturing marijuana (id., § 11366.5,
sub. (a)), and theft of utility services (Pen. Code, § 498, subd. (d).)
       Motion to Suppress
       On March 27, 2012, defendants moved to suppress all evidence obtained during
the searches of the Baltimore Way house.1 They argued that the protective sweep
constituted an unconstitutional warrantless search, and all evidence seized from the
residence should be suppressed.


       1
         Defendants also filed a motion to suppress evidence seized during a 2009 search
of a residence in San Francisco. That motion is not before us.


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       The People opposed the motion, arguing first that exigent circumstances justified
the warrantless entry. They theorized that it was reasonable for the officers to fear for the
safety of an occupant of the residence, who could have been incapacitated, and that it was
reasonable for the police to enter the property because it “was actively being damaged by
the unrestrained water flow.” They also argued the protective sweep of the residence was
justified to insure officer safety. Alternatively, the People submitted that if the protective
sweep was unconstitutional, the evidence obtained during the warrantless search and the
execution of the warrant should not be suppressed because an independent source—the
Spiteris—provided probable cause for the warrant.
       Trial Court’s Ruling
       Following a hearing on March 12, 2013, the trial court denied defendants’ motion.
It first ruled the exigent circumstances doctrine did not apply. It then held the protective
sweep doctrine did apply, finding that it was not unreasonable for the police to be
concerned about the possible presence of suspects in the home that could have either
posed a danger during a search or destroyed evidence in the house. Alternatively, it
found that even if the protective sweep was unconstitutional, the marijuana grow would
inevitably have been discovered based on the information provided by the Spiteris, which
constituted an independent source of probable cause for the search warrant.
       Defendants’ Plea and Sentence
       On April 9, 2013, defendants pleaded no contest to knowingly maintaining
premises for the purpose of manufacturing marijuana, in exchange for dismissal of the
remaining charges and a maximum six-month jail sentence.
       On June 4, 2013, the trial court suspended imposition of sentence and placed
defendants on supervised probation for three years, with the condition, among others, that
they each serve 90 days in county jail.
       Defendants filed timely notices of appeal.
                                       DISCUSSION
       Defendants’ sole contention on appeal is that the trial court erred in denying their
suppression motion. When considering the denial of a motion to suppress evidence, we


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view the record in the light most favorable to the trial court’s ruling and defer to the trial
court’s findings of historical fact, whether express or implied, if they are supported by
substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We then exercise
independent judgment to decide what legal principles are relevant, independently apply
them to the facts, and determine as a matter of law whether there has been an
unreasonable search or seizure. (See People v. Davis (2005) 36 Cal.4th 510, 528–529;
People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Glaser, supra, 11 Cal.4th at
p. 362.)
       In support of their claim, defendants first argue that the initial, warrantless search
was unlawful and could not be justified as a protective sweep because the officers lacked
any “specific and articulable facts” creating a reasonable inference that there was
someone inside the house who presented a danger to the officers or who might destroy
evidence. They also contend that neither the inevitable discovery nor independent source
doctrines applied to rescue the allegedly invalid warrant.2
       We need not address defendants’ first claim—that the protective sweep was
unconstitutional—because even if we were to agree, we would nevertheless conclude the
suppression motion was properly denied because the information conveyed by the
Spiteris constituted an independent source of probable cause for the warrant. We thus
turn directly to the independent source doctrine.
       “ ‘The independent source doctrine allows admission of evidence that has been
discovered by means wholly independent of any constitutional violation. . . . [It] teaches
us that the interest of society in deterring unlawful police conduct and the public interest

       2
        Defendants also argue that the warrant lacked probable cause, claiming Sergeant
Price omitted material, adverse information from his affidavit. In addition to the
suppression motion, defendants also filed a motion to traverse the warrant pursuant to
Franks v. Delaware (1978) 438 U.S. 154. The suppression hearing did not address the
Franks motion, and it appears the trial court never ruled on that motion. To the extent
defendants’ lack-of-probable-cause argument attempts to resuscitate that motion, such as
by challenging Sergeant Price’s statements included in or omitted from his affidavit, we
disregard it, as “the absence of an adverse ruling precludes any appellate challenge.”
(People v. McPeters (1992) 2 Cal.4th 1148, 1179.)


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in having juries receive all probative evidence of a crime are properly balanced by putting
the police in the same, not a worse, position that they would have been in if no police
error or misconduct had occurred. [Citations.] When the challenged evidence has an
independent source, exclusion of such evidence would put the police in a worse position
than they would have been in absent any error or violation.’ [Citation.]” (People v.
Weiss (1999) 20 Cal.4th 1073, 1077–1078.) Where the affidavit supporting a search
warrant contains both information obtained by unlawful conduct as well as untainted
information, a two-prong test applies to justify application of the independent source
doctrine. (Id. at pp. 1078, 1082.) First, the affidavit, excised of any illegally obtained
information, must be sufficient to establish probable cause. (Id. at p. 1082.) Second, the
evidence must support a finding that “the police subjectively would have sought the
warrant even without the illegal conduct.” (Id. at p. 1079; see also id. at p. 1082 [“ ‘if the
application contains probable cause apart from the improper information, then the
warrant is lawful and the independent source doctrine applies, provided that the officers
were not prompted to obtain the warrant by what they observed during the initial
entry’ ”].) The circumstances here satisfied both prongs.
       Sergeant Price testified that Officer Bray, who had spoken with the Spiteris at the
school, related to him what the Spiteris had seen inside their home. Based on what he
heard, Sergeant Price made the decision to apply for a search warrant, and ordered the
officers to freeze the home in the meanwhile. He thus decided to apply for the warrant
based on the Spiteris’ observations, before learning about what the officers saw during
the protective sweep.
       Turning to the contents of Price’s probable cause statement and excising the
observations made by the officers while conducting the protective sweep, we conclude
the affidavit nevertheless contained probable cause supporting the warrant. Price
described the Spiteris’ account of what prompted them to enter the house, and then
stated: “Mrs. Spiteri told Officer Bray, and later told me, that she and her husband
looked in the other rooms of the residence, and saw what they believed to be marijuana
growing from the three upstairs bedrooms. Mrs. Spiteri stated the plants were different


                                              9
heights. Mrs. Spiteri stated she and her husband left the residence and called the police.”
The Spiteris’ representation that they entered their rental house due to a water leak,
looked in the bedrooms, and saw what they believed to be marijuana plants was probable
cause for the warrant.
       Defendants challenge this conclusion, complaining that the warrant could “not
issue based solely on the bare guesses of two untrained civilians who testified that they
had not ever seen marijuana in person . . . .” But probable cause requires only “a fair
probability that contraband or evidence of a crime will be found in a particular place.”
(Illinois v. Gates (1983) 462 U.S. 213, 238.) It does not require an actual showing of
criminal activity. (Id. at p. 243, fn. 13.) The circumstances leading up to the Spiteris’
discovery and their opinions as to what they saw satisfied this criteria.
       Defendants also contend that the inevitable discovery rule did not apply in these
circumstances because “it may not be used to justify an unconstitutional warrantless
search on the grounds that a search warrant would inevitably be obtained, because such a
circular application of the rule would obliterate the Fourth Amendment.” As noted, we
do not uphold the trial court’s denial of the suppression motion by finding the protective
sweep constitutional, but rather on the basis that an independent source—the Spiteris—
provided probable cause for the warrant. This argument is thus moot.
                                      DISPOSITION
       Our independent review discloses no error in denying defendants’ suppression
motion, and the judgment of conviction is affirmed.




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                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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