Filed 2/14/17

                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                 DIVISION SEVEN


THE PEOPLE,                               B276937

       Petitioner,                        (Los Angeles County
                                          Super. Ct. No. BA425880)
       v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

       Respondent;

JOSHUA JAMES CORBETT,

       Real Party in Interest.


      ORIGINAL PROCEEDINGS in mandate. Edmund W. Clarke, Jr.,
Judge. Petition denied.
      Jackie Lacey, District Attorney, Steven Katz, Phyllis C. Asayama and
Scott D. Collins, Deputy District Attorneys, for Petitioner.
      No appearance for Respondent.
      No appearance for Real Party in Interest.



                          __________________________
       In the absence of exigent circumstances, if the police could have
obtained but did not obtain a warrant to search a person‟s residence, and
entered the person‟s residence illegally based on an invalid consent, does the
fact that they could have obtained a warrant, or later obtained a warrant
when they wanted to return to search the home again, excuse their failure to
obtain a warrant before the initial entry? The answer is no.
       Here, an unarmed alleged stalker was arrested inside the home of his
victim and then questioned extensively despite his repeated invocation of his
right to remain silent. The police, aware from a records search that he had
eight firearms registered in his name, continued to question him until he
disclosed his address and the location where the guns could be found, and
signed a form consenting to the search of his home. It is undisputed in this
proceeding that the suspect‟s assent to the search was not a meaningful or
valid consent.
       The parties agree that the police had probable cause to obtain a search
warrant before they entered the suspect‟s home, and there is no dispute that
officers had the opportunity to seek a warrant but elected not to do so. They
searched the suspect‟s home and seized numerous firearms and ammunition,
including seven of the eight weapons listed in the firearms registration
record. The following day, relying upon information gathered from the
interrogation of the suspect and facts learned from their earlier search of his
home, they obtained a search warrant for the suspect‟s home, identifying two
objects of the search: a gun safe they saw during their initial entry, and the
eighth firearm known to be registered to the suspect but not located during
the warrantless search the day before.
       The trial court suppressed the evidence collected in the initial search.
The People seek a writ of mandate compelling the court to vacate its ruling
and to deny the motion to suppress, arguing that because the police later
obtained a warrant after the initial search, the evidence in the suspect‟s
home would inevitably have been discovered. We deny the petition.




                                       2
            FACTUAL AND PROCEDURAL BACKGROUND

      Joshua Corbett was arrested by officers of the Los Angeles Police
Department inside the home of Sandra Bullock on the morning of June 8,
2014. He was charged with 26 offenses, two of which concern the stalking of
Bullock and the burglary of her home; the remaining 24 counts are firearms-
related offenses concerning weapons, ammunition, and parts that were
recovered during the search of Corbett‟s home.

      A. The Incident, Arrest, Interrogation, and Initial Search

       According to the affidavit of probable cause in the search warrant
obtained on June 10, 2014, LAPD officers responded to Bullock‟s residence at
6:35 a.m. on June 8, 2014, in response to her report that a man wearing a
dark sweatshirt and dark pants was inside her home. Officers arriving at the
home found Corbett walking down the staircase. As he was detained, he
called out, “Sandy,” several times and said, “Sandy, I‟m sorry. Please don‟t
press charges.” Corbett was arrested and taken into custody.
       At the time of the arrest, according to the affidavit, Corbett possessed a
letter addressed to Bullock, a notebook with multiple entries addressed to
her, photographs of her from a magazine, and a Utah concealed weapons
permit. Corbett was unarmed.
       Officer Juan Rodriguez arrested Corbett. Later that day, Rodriguez
obtained an emergency protective order; he served it on Corbett at 12:08 p.m.
on June 8, 2014. Rodriguez failed to use the appropriate form for the
emergency protective order, instead using a form that had been superseded.
Corbett remained in police custody.
       The following day, June 9, at approximately 10:00 or 10:15 a.m.,
Detective Jeffrey Dunn questioned Corbett in jail in the presence of Detective
Christina Carlozzi, the primary detective assigned to the case; psychologist
Scott Watson; and Detective Debbie Robles. At this time Corbett had been in
custody for approximately 30 hours. He was handcuffed during the
interrogation. He had not been given the opportunity to make a telephone
call.




                                       3
      Prior to the interrogation, Dunn received the arrest records, the face
sheet of the emergency protective order, and a CLETS document in response
to an automated firearm system inquiry. The CLETS printout provides
information on firearms registered to the subject of the report, and it
indicated that handguns were registered to Corbett. Also at this time,
according to Dunn, the terms of Corbett‟s “restrictions pursuant to the
emergency protective order were available online,” and he “based [the]
interview off that information.”1 From the reports that were run, Dunn
“learned that pursuant to the emergency protective order [Corbett] was
restricted from possessing, owning, or having access to any firearm.”
      The interrogation was partially recorded. The recorded portion begins
with one officer2 advising Corbett of his Miranda rights. Without asking
Corbett whether he wanted to waive those rights, the police asked Corbett,
“So, do you—you want to talk about what happened with—with Sandy?”
Corbett responded, “Not—not really. I don‟t want to talk about it. No.”
Dunn asked, “You don‟t want to help us understand why you were there?”
and Corbett said, “Right, I don‟t want to talk about it.”
       Dunn responded, “Okay. Well, how about off the record? Do you want
to talk about it off the record? We can‟t use anything that we‟ve discussed.”
Corbett again stated that he did not want to talk about it.
       Dunn then told Corbett that his letter to Bullock made him think that
there was more to the story than what Dunn had heard, and that he did not
“want to go to the District Attorney and file, you know, felony burglary
charges on you, if there‟s another side of the story.” Corbett acknowledged, “I
did what I did. And I deserve to be punished for it.” Dunn asked why




1     Neither the CLETS printout nor the portion of the emergency
protective order concerning firearm restrictions actually served on Corbett
appears in the record.

2      Dunn testified that the officer was Carlozzi, but the transcript indicates
that it was Robles. The record on appeal does not include the recording of the
interrogation. All quotations from the interrogation are taken from the
transcript of the interrogation.

                                       4
Corbett needed to be punished. Corbett said, “Well, I did what I did. I don‟t
know. I shouldn‟t have pushed the issue. I don‟t want to talk about it.”
       Dunn changed the subject to the emergency protective order and
firearms. He said that he knew that Corbett had “a bunch of guns, right?” to
which Corbett made a response characterized by the transcriber as “Mmnh-
mmnh.” Dunn said, “So, we‟re gonna have to hold on to those guns until this
thing gets resolved. So, we can either go there with your permission and
voluntarily, you know, surrender your guns.” Alternatively, Dunn told
Corbett, “we‟re gonna have to write a search warrant, in which case we‟ll
have to go into your house or your apartment and search the entire location
until we find the weapons that we know you have there.”
       Dunn urged, “Just tell us where the guns are, and we can go get the
guns. Or we‟ll have to write a search warrant and we‟ll have to go,
essentially, open everything and unlock everything until we find what we‟re
looking for.” Corbett responded, “Mmnh-mmnh.”
       Dunn told him that “it‟s however you want to play it,” but that “[i]t‟s a
whole lot easier if you give us permission to get the guns, ‟cause we‟re gonna
get them one way or the other.” Corbett made the sound, “Mmnh-mmnh.”
       Dunn said, “[A]re you gonna tell us where the guns are and—and how
we can get our hands on them?” Corbett answered, “You guys do what you
have to do. I don‟t know what to tell you.”
       Dunn asked Corbett if he lived with his parents. Corbett said, “Uh, no.
I don‟t—I don‟t want to talk about it.” Dunn said, “You don‟t want to talk
about anything?” Corbett said no.
       Dunn continued anyway, telling Corbett that this was his one chance to
clear the air and tell his story. He reminded Corbett that they had read his
letter and his notes. Corbett said, “I, obviously, got issues.” Dunn then
began asking about Corbett‟s mental health history, which Corbett told the
police was his own business. Dunn responded that it was not exclusively
Corbett‟s business because now he was in custody. Corbett responded,
“[S]he‟s an innocent victim. And you guys do what you have to do. That‟s all
I have to say.”
       “An innocent victim of what?” Dunn asked, and Corbett began
responding in a limited and brief manner to questions about Bullock and his


                                       5
belief that she was not being protected adequately by her security staff.
Corbett acknowledged being at Bullock‟s home and that he would be going to
jail. He denied intending to hurt Bullock and said he was devastated that he
had made her cry.
       Dunn told Corbett that he knew Corbett was a good guy who had no
prior felony convictions, because if he had convictions, he would not be
permitted to have the handguns and long guns that he knew Corbett had.
“Right?” asked Dunn. “Mmnh-mmnh,” Corbett said.
       Dunn asked more questions about Corbett‟s relationship with Bullock,
and then returned to Corbett‟s weapons, saying, “So, what do you want me to
do about your guns?” Corbett responded unintelligibly. Dunn said, “I need to
get my hands on them until this whole thing is resolved. Okay?” Corbett did
not reply.
       Dunn told Corbett, “And you can get them back. But, we got to go
through this whole process first. So, I can either go there with your
permission, or I‟ll have to write a search warrant and I‟ll have to go there
with a team and do what we got to do to find them.” Corbett responded, “Can
I make a phone call? I haven‟t had a phone call, yet.”
       Dunn told Corbett he could place a call after the interrogation and then
asked if he had roommates. Corbett‟s response was transcribed as “Uhn-
uhn.” “No?” said Dunn. Corbett made no audible response.
       “I know your mom and dad live locally, right?” asked Dunn. Corbett
said, “I guess. I don‟t know.” Dunn asked if Corbett‟s parents had his guns,
and Corbett said he did not know. “You don‟t know where your guns are?”
asked Dunn, and Corbett was silent. Dunn said, “So, you‟re going to make
me go to your mom and dad‟s house and serve a search warrant on your mom
and dad‟s house, too?” Corbett again was silent, and Dunn asked, “Do you
really want that to happen?” Corbett continued to give no response.
       Dunn said, “You want me to go there with a pry bar and a battering
ram and disrupt your mother and father‟s life to get your guns?” Corbett
protested that he was not going to hurt Bullock. Dunn responded, “But that‟s
not the issue right now. The issue is your guns. I‟m gonna get them one way
or the other. I—and I really would rather not traumatize your parents in the
process.” “Are you thinking?” asked Dunn. Corbett was silent.


                                       6
       Dunn told Corbett that his parents knew he was in custody, and
Corbett asked how they knew that. Dunn said Corbett‟s parents were on the
news and that his father was asked questions about Corbett. Dunn advised
Corbett that if he was trying to protect his parents from knowing what was
happening, “that cat‟s already out of the bag. Would you like to save them
some more grief, and let us know where the guns are?” Corbett remained
silent.
       “Josh? Are you thinking about this? Or are you just ignoring me?” said
Dunn. Corbett did not answer, and Dunn told Corbett that it seemed Corbett
was ignoring him. Dunn said that he would “make it real simple, so that you
understand.” Dunn said that he wanted to hear Corbett‟s side of the story,
because he did not “think this needed to be, uh, as big a deal as you‟re
making it out to be.” “But, if you‟re not going to provide me any information,
it‟s gonna get a whole lot worse,” he told Corbett.
       “Well, what do you want from me?” asked Corbett. Dunn told Corbett
he wanted to know why he was at Bullock‟s house, whether she had been
communicating with Corbett, and where his guns were. Corbett denied
knowing Bullock and said that his writings were not the product of messages
he was hearing or of any actual relationship with her. Corbett disclosed that
he took morphine for chronic pain.
       Dunn questioned Corbett about why he went to Bullock‟s house, what
he intended to do while there, what he did at the house, how he was able to
enter the home, and what he did while in the house. Corbett responded to
Dunn‟s questions.
       Dunn told Corbett that he knew Corbett was not a bad person but had
made a “one-time mistake,” and that he did not want that mistake to be the
“end of the world” for Corbett. “But,” he continued, “I can‟t help you unless
you help me.” Corbett disclosed an address where the guns would be found.
“Is that your parents‟ house?” Dunn asked. Corbett responded that it was his
house and he owned it. Corbett described two gun safes and gave Dunn the
combinations to the safes and to the room in which they were stored.




                                      7
       At this point, the recording ended.3 The interrogation continued for
what Dunn estimated was an additional ten minutes. During the unrecorded
portion of the interrogation, Corbett signed a consent form giving the police
permission to search his home for firearms.
       The police searched Corbett‟s home without a warrant on June 9, 2014.
Prior to the search, the police were aware that Corbett legally owned eight
firearms. They had no information suggesting that he possessed any illegal
firearms or ammunition or that he had engaged in any illegal manufacture,
modification, or other illegal activity with firearms. During the search,
however, they found handguns and rifles, some of which proved to be illegal
fully automatic weapons, and what they later described as “a large amount”
of ammunition. The items seized during the warrantless June 9 search
formed the basis for 24 of the 26 charges filed against Corbett: eight counts
of possession of a machine gun (Pen. Code, § 32625, subd. (a)); three counts of
possession of an assault weapon (Pen. Code, § 30605, subd. (a)); 10 counts of
possession of a destructive device (illegal ammunition) (Pen. Code, § 18710,
subd. (a)); two counts of machine gun conversion (Pen. Code, § 32625, subd.
(b)); and one count of illegal activity with a .50 BMG rifle (Pen. Code, § 30600,
subd. (a).) The only charges not arising from the June 9 search of Corbett‟s
home were one count of first degree burglary of Bullock‟s house (Pen. Code,
§ 459) and one count of stalking Bullock (Pen. Code, § 646.9, subd. (a)).
       The illegal firearms and ammunition charges form the basis of counts 3
through 26 in the information.

      B. The Subsequent Warrant

      On June 10, 2014, the police obtained a warrant to search a gun safe
that the police had seen during the first search but that Corbett had not told
them about, in search of a firearm known to be registered to Corbett but not
recovered in the first search, as well as any other firearms located inside the
safe. The affidavit submitted in support of the application for a search
warrant contained the following relevant facts: (1) details about Corbett‟s

3     The trial court concluded that Carlozzi inadvertently turned off the
concealed recording device and did not do so for the purpose of suppressing
evidence.

                                       8
entry into the victim‟s home; (2) Corbett had committed stalking, a felony; (3)
the firearms registry indicated he owned eight firearms; (4) he had been
served with an emergency protective order; (5) in the June 9 interview,
Corbett gave “written and verbal consent to search his residence . . . for all
firearms and ammunition,” and that he provided passcodes and combinations
to access those items; (6) during the initial search, the police recovered rifles,
handguns, and ammunition; (7) two of the seized rifles proved to be fully
automatic weapons in violation of Penal Code section 32625, subdivision (a);
(8) all of the guns registered to Corbett except one had been found during the
initial search; (9) a third gun safe that had not been mentioned by Corbett
was seen by police during the initial search; and (10) the officer believed that
the final weapon and other firearms might be in that gun safe. The
application did not include any assertion or any facts demonstrating a fair
probability that evidence pertaining to the offenses of stalking or burglary
would be found at Corbett‟s residence.

      C. Suppression Proceedings

       Corbett moved to suppress the statements he made during
interrogation and the evidence recovered during the initial search of his
home. The People did not oppose the motion to suppress with respect to the
statements obtained in violation of his right to remain silent and advised the
court that they would not attempt to use Corbett‟s statements against him in
their case in chief.
       Ultimately, the trial court suppressed the evidence obtained during the
first search. The People petition this court for a writ of mandate compelling
the trial court to vacate its order granting the motion to suppress and to issue
a new order denying the motion.

                                 DISCUSSION

      I.    Violations of the Fourth and Fifth Amendments

       This case involves violations of both the Fourth and Fifth Amendments.
First, the police violated the Fifth Amendment by failing to honor Corbett‟s
unambiguous invocation during custodial interrogation of his right to remain
silent. “The Fifth Amendment, which applies to the States by virtue of the


                                        9
Fourteenth Amendment, [citation], provides that „[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.‟ U.S. Const.,
Amdt. 5. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), the Court adopted a set of prophylactic measures to protect a
suspect‟s Fifth Amendment right from the „inherently compelling pressures‟
of custodial interrogation. [Citation.] The Court observed that
„incommunicado interrogation‟ in an „unfamiliar,‟ „police-dominated
atmosphere,‟ [citation], involves psychological pressures „which work to
undermine the individual‟s will to resist and to compel him to speak where he
would not otherwise do so freely,‟ [citation]. Consequently, it reasoned,
„[u]nless adequate protective devices are employed to dispel the compulsion
inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice.‟ [Citation.] [¶] To
counteract the coercive pressure, Miranda announced that police officers
must warn a suspect prior to questioning that he has a right to remain silent,
and a right to the presence of an attorney. [Citation.] After the warnings are
given, if the suspect indicates that he wishes to remain silent, the
interrogation must cease. [Citation.]” (Maryland v. Schatzer (2010) 559 U.S.
98, 103-104.)
       When a defendant states that he wants to remain silent or that he does
not want to talk with the police, “either of these simple, unambiguous
statements” constitutes the invocation of the “„right to cut off questioning.‟
[Citation.]” (Berghuis v. Thompkins (2010) 560 U.S. 370, 382.) As the
California Supreme Court has explained, “„[I]f at any point in the interview [a
defendant] invokes the right to remain silent or the right to counsel, “the
interrogation must cease.”‟ [Citation.]” (People v. Jackson (2016) 1 Cal. 5th
269, 339.) A statement obtained in violation of a suspect‟s Miranda4 rights
may not be admitted to establish guilt in a criminal case. (Ibid.)




4     Miranda v. Arizona, supra, 384 U.S. 436 (Miranda).

                                      10
      There is no dispute that Corbett‟s Fifth Amendment rights were
violated here.5 The police ignored his repeated and unambiguous invocations
of his right to remain silent and continued to interrogate him. The People,
who bore the burden of establishing by a preponderance of the evidence that
Corbett‟s statements were made voluntarily or that he had waived his
Miranda rights (People v. Duff (2014) 58 Cal.4th 527, 551), conceded that
Corbett was subjected to custodial interrogation without waiving his
Miranda rights; they did not oppose Corbett‟s motion to suppress with
respect to his statements.
       The police also violated the Fourth Amendment, which guarantees the
right of citizens to be free from unreasonable governmental searches and
seizures. (U.S. Const., 4th Amend.; see also Terry v. Ohio (1968) 392 U.S. 1,
8-9.) While the “Fourth Amendment protects the individual‟s privacy in a
variety of settings,” in none of these settings “is the zone of privacy more
clearly defined than when bounded by the unambiguous physical dimensions
of an individual‟s home—a zone that finds its roots in clear and specific
constitutional terms: „The right of the people to be secure in
their . . . houses . . . shall not be violated.‟” (Payton v. New York (1980) 445
U.S. 573, 589 (Payton).) Accordingly, “[i]t is a „basic principle of Fourth
Amendment law‟ that searches and seizures inside a home without a warrant
are presumptively unreasonable.” (Id. at p. 586; see also Michigan v. Fisher
(2009) 558 U.S. 45, 47 (Fisher).)
       Here, it is undisputed that the police seized firearms and ammunition
from Corbett‟s home during a warrantless search of the home. This search
was presumptively unreasonable. (Payton, supra, 445 U.S. at p. 586; Fisher,
supra, 558 U.S. at p. 47.) To avoid suppression of the evidence, the People
unsuccessfully sought to demonstrate that Corbett had voluntarily consented
to the search of his residence. The trial court found that Corbett did not
voluntarily consent to the search of his home, explaining that it found that
“the officers overcame the defendant‟s willingness to resist and that he did
not meaningfully consent.” The court observed that Corbett “kept asserting

5     Upon reviewing the transcript of the interrogation approximately one
year later, Carlozzi wrote to the prosecutor handling the case, “Doesn‟t look
good. I honestly hope this can be settled without a trial.”

                                      11
his rights and they just kept on talking to him. And my feeling was at some
point this man, in those conditions, on that date, probably didn‟t think too
much of his constitutional rights anymore, since the ones that had been
presented to him—I won‟t say they‟re trampled, that‟s overly dramatic, but
they weren‟t doing much to slow things down. And his physical state and
various special circumstances about him all contributed to the fact that by
the time he put his name and signature on that page, that did not mean
much.” “It wasn‟t close, frankly, to being a consent,” said the trial court. As
there was no contention that any other exception to the warrant requirement
applied here, the evidence was seized in violation of the Fourth Amendment.

      II.   The People Have Not Established Inevitable Discovery

        Because Corbett‟s statements to the police were conceded to be
inadmissible as a result of the Fifth Amendment violations, the only issue
that remained for the trial court to resolve, and that is presented to this court
to review, concerns the suppression of the evidence obtained in violation of
the Fourth Amendment in the warrantless search of Corbett‟s home. “The
exclusionary rule prohibits introduction into evidence of tangible materials
seized during an unlawful search, Weeks v. United States, 232 U.S. 383, 34
S.Ct. 341, 58 L.Ed. 652 (1914), and of testimony concerning knowledge
acquired during an unlawful search, Silverman v. United States, 365 U.S.
505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).” (Murray v. U.S. (1988) 487 U.S.
533, 536 (Murray).) It “applies not only to the illegally obtained evidence
itself, but also to other incriminating evidence derived from the primary
evidence.” (Nix v. Williams (1984) 467 U.S. 431, 441 (Nix).)
        The Supreme Court has long held that evidence does not automatically
become “sacred and inaccessible” in the event of a constitutional violation.
(Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392, overruled
on other grounds in United States v. Havens (1980) 446 U.S. 620; see also
Nix, supra, 467 U.S. at p. 441.) The Supreme Court has observed, “We need
not hold that 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



                                       12
been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.‟” (Wong Sun v. United
States (1963) 371 U.S. 471, 487-488 (Wong Sun); see also Nix, at pp. 441-442.)
Therefore, if knowledge of the facts in question “is gained from an
independent source, they may be proved like any others . . . .” (Silverthorne,
at p. 392.) This independent source doctrine, which has been applied to
evidence acquired not only through Fourth Amendment violations but also
through Fifth and Sixth Amendment violations, balances the competing
policy interests of deterring unlawful police conduct and providing to juries
all probative evidence of a crime by placing the police in the same, not a
worse, position than they would have been in if the unlawful police conduct
had not occurred. (Murray, supra, 487 U.S. at p. 537; Nix, at p. 443.)
        The inevitable discovery doctrine, recognized by the Supreme Court in
Nix, supra, 467 U.S. 431, is “closely related” to the independent source
doctrine. (Id. at p. 443.) It is “in reality an extrapolation from the
independent source doctrine: Since the tainted evidence would be admissible
if in fact discovered through an independent source, it should be admissible if
it inevitably would have been discovered.” (Murray, supra, 487 U.S. at
p. 539.) The Supreme Court has described the test as follows: “If the
prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means . . . the evidence should be received.” (Nix, at p. 444.) The prosecution
must establish inevitable discovery without resort to speculation, for
“inevitable discovery involves no speculative elements but focuses on
demonstrated historical facts capable of ready verification or impeachment.”
(Id. at p. 444, fn. 5.)
        In Nix, the Supreme Court held that the inevitable discovery doctrine
permitted the introduction of evidence about the discovery and condition of a
murder victim‟s body that had been obtained through interrogation in
violation of his right to counsel because “the evidence in question would
inevitably have been discovered without reference to the police error or
misconduct.” (Nix, supra, 467 U.S. at p. 448.) Although Nix‟s incriminating
statements could not be introduced against him at trial (id. at p. 437), the
Supreme Court ruled that evidence of the location and condition of the body


                                      13
was admissible under the inevitable discovery doctrine because until Nix led
the police to the body, a 200-volunteer search party was methodically
canvassing two counties, looking specifically on roads, in ditches, and in
culverts, and was only two and one-half miles away from her body and three
to five hours of searching from reaching the culvert where the body was
found. (Id. at pp. 448-450.) The search was suspended only because Nix led
the police to the body‟s location. (Id. at p. 449.) Based on the detailed
historical facts presented about the method and progress of the search, the
Supreme Court could say that the record was “clear that the search parties
were approaching the actual location of the body, and we are satisfied, along
with three courts earlier, that the volunteer search teams would have
resumed the search had Williams not earlier led the police to the body and
the body inevitably would have been found.” (Id. at pp. 449-450.)
       This is not a case like Nix, supra, 467 U.S. 431, in which the use of
legitimate investigatory tactics had brought police to the brink of discovering
the illegally obtained evidence when the misconduct occurred, such that the
Supreme Court could say the evidence would inevitably been discovered in
the absence of that misconduct. Assuming for the sake of this portion of the
discussion that the People had probable cause to seize Corbett‟s firearms, the
People did not present evidence demonstrating that the police had or would
have developed probable cause to suspect that firearms were located at his
home address if no constitutional violation had occurred. The record
establishes that the police knew that Corbett was the registered owner of
multiple firearms and that they were aware of two different gun-related
permits he had obtained, but the People presented no evidence that aside
from the information obtained unconstitutionally law enforcement had any
information concerning Corbett‟s residence or any factual basis to suspect
that the firearms registered to him would be found in his home or at any
particular location. Indeed, it is clear from the transcript of the interrogation
that the officers made no effort to determine where Corbett lived, that they
were unaware that he lived in his own home, and that they did not have any
information as to where the firearms were stored. The People conceded that
the police lacked knowledge that Corbett had his own residence prior to the
interrogation. Although two police officers testified at the suppression


                                       14
hearing, neither articulated any basis distinct from the interrogation for
believing that firearms would be found in Corbett‟s home or any method by
which they sought to locate his address and none of the documentary
evidence provided to this court includes any information about Corbett‟s
residence or the potential location of the firearms.6
      Moreover, the People did not present evidence that law enforcement
was engaged in any lines of investigation that would ultimately have led
them to the illegal firearms in Corbett‟s home without the information
gleaned through the “overreaching by the police” (Nix, supra, 467 U.S. at
p. 447) in the interrogation and search. Instead, the evidence demonstrates
that the police obtained all their information about where the firearms
registered to Corbett could be found and what to seize from Corbett‟s home
from the violations of his Fourth and Fifth Amendment rights. Indeed, when
the police sought a search warrant on June 10 they relied heavily on
Corbett‟s purported consent and the items seen during the initial, illegal

6      We are aware that the trial court was not troubled by the absence of
information as to where the weapons would be found prior to the
interrogation. The court opined that before the interrogation the police “had
probable cause to get a warrant to go seek weapons, once they knew where
they were likely to be found,” and that although the court did not know “what
they would have started with for the first address” “they could have gotten a
warrant to get started.” The court thought that this “may very well have led
to the arrival at some location and finding out the defendant didn‟t reside
there anymore. And I believe the detectives would have continued to pursue
that information until they found the correct address, and got a new warrant
and went to the correct address.” Probable cause is not established, however,
until the police demonstrate that there is 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 (Gates); People v. Scott (2011) 52 Cal.4th 452, 483
(Scott) [“Probable cause sufficient for issuance of a warrant requires a
showing in the supporting affidavit that makes it substantially probable that
there is specific property lawfully subject to seizure presently located in the
particular place for which the warrant is sought”].) The fact that the police
still needed to know “where they [the firearms] were likely to be found”
makes clear that the police lacked information demonstrating that there was
a fair probability that Corbett‟s firearms were located in any particular place
before they interrogated him.

                                      15
search, and they made no effort to establish probable cause in the warrant
application based on information gathered from sources other than Corbett‟s
statements to the police and the warrantless search of his home. Because the
People did not present “historical facts capable of ready verification or
impeachment” establishing that the evidence obtained in the June 9 search
would inevitably have been discovered without reference to the police error or
misconduct (id. at pp. 444, fn. 5, 448), they failed to meet their burden of
showing by a preponderance of the evidence that the evidence obtained in the
illegal search of Corbett‟s home would inevitably have been discovered even if
no violation of any constitutional provision had taken place. (Id. at p. 444.)
       Finally, the Ninth Circuit Court of Appeals has held that the inevitable
discovery doctrine does not apply when officers have probable cause to apply
for a warrant but fail to do so. (United States v. Lundin (9th Cir. 2016) 817
F.3d 1151 (Lundin); United States v. Mejia (9th Cir. 1995) 69 F.3d 309, 320;
United States v. Echegoyen (9th Cir. 1986) 799 F.2d 1271, 1280, fn. 7.) The
Court of Appeals has explained, “This court has never applied the inevitable
discovery exception so as to excuse the failure to obtain a search warrant
where the police had probable cause but simply did not attempt to obtain a
warrant. As we stated in Echegoyen, to „excuse the failure to obtain a
warrant merely because the officers had probable cause and could have
obtained a warrant would completely obviate the warrant requirement.‟ 799
F.2d at 1280 n. 7; see also United States v. Johnson, 22 F.3d 674, 683 (6th
Cir.1994) („to hold that simply because the police could have obtained a
warrant, it was therefore inevitable that they would have done so would
mean that there is inevitable discovery and no warrant requirement
whenever there is probable cause‟). If evidence were admitted
notwithstanding the officers‟ unexcused failure to obtain a warrant, simply
because probable cause existed, then there would never be any reason for
officers to seek a warrant. To apply the inevitable discovery doctrine
whenever the police could have obtained a warrant but chose not to would in
effect eliminate the warrant requirement. [¶] We are neither free nor willing
to read the warrant requirement out of the Constitution. Accordingly, even if
we assume that the detectives were in possession of competent evidence
showing probable cause at the time of the search, the inevitable discovery


                                      16
doctrine would not justify introduction of the evidence seized without a
warrant.” (Mejia, at p. 320.)
       The trial court put the rule succinctly: “[T]he courts are saying . . . that
when you have the choice, [to] go get a warrant or not, don‟t rely on the fact
that I could have gotten one as your reason for not getting one.” The court
explained, “Yes, they could have gotten a warrant. But when they don‟t, can
they do that with no risk at all? Can they—can I protect the Fourth
Amendment if I tell them don‟t worry about it, if you‟re confident you could
have gotten a warrant, just go right ahead and do what you think is
necessary and somebody, after the fact, will sort through all this and piece
together probable cause and say, sure, it would have been nice to get a
warrant, and you could [] have gotten one, but it was okay that you went
through the door. [¶] I just—you know, I don‟t think that‟s Fourth
Amendment law. And I hope it‟s not Fourth Amendment law.”
       The People attempt to distinguish Lundin, supra, 817 F.3d 1151, on
which the trial court relied, on the ground that the police here later sought a
warrant to search the house again. The later warrant does not change the
analysis. Lundin and similar cases concern the choice made by law
enforcement to conduct a warrantless search despite having probable cause to
obtain a search warrant, and they stand for the principle that the fact that a
warrant could have been obtained does not excuse the failure to obtain it.
Here, the parties agreed in the trial court that at the time Corbett‟s house
was searched, the police had probable cause to obtain a warrant to search the
home, and for purposes of this portion of the discussion we accept this
contention. They chose not to do so, electing instead to rely on the consent
form to establish the constitutionality of their warrantless search. The later
choice to seek a search warrant when the police subsequently decided they
wished to return to Corbett‟s house to search for one item they did not find
during the illegal search and to seize one item that they had seen during the
first search does not alter or legitimize the earlier decision to bypass the
warrant requirement and rely upon an improperly obtained consent form to
perform the search. In both instances, “allowing the government to claim
admissibility under the inevitable discovery doctrine when officers have
probable cause to obtain a warrant but fail to do so would encourage officers


                                        17
never to bother to obtain a warrant.” (Lundin, at p. 1162.) As the trial court
put it, the police obtained evidence by violating the Fourth Amendment, and
the People were asking the court, “if we will honor the Fourth Amendment
eventually, [to] give us credit for that. We‟d like to do double Fourth
Amendment on our next search, will that count for the fact we violated [it] on
our first search[?] And I think the answers to those things—not trying to
derogate your argument—is clearly no, the first search has to be valid.”7


7      As part of this argument, the People rely on Murray, supra, 487 U.S.
533, and People v. Weiss (1999) 20 Cal.4th 1073, for the principle that
evidence from an initial illegal entry may nonetheless be admissible if a
warrant is later legally obtained to search the premises. Both of these
decisions concern the independent source exception to the exclusionary rule
rather than inevitable discovery. Murray involved the police making a
warrantless entry into a warehouse and observing bales that were believed to
contain drugs. (Murray, at p. 535.) The police did not touch the bales, but
left and obtained a warrant based on an application that did not mention the
prior entry or include recitations of what the officers had observed during the
entry. (Id. at pp. 535-536.) The question in Murray was “whether the search
pursuant to warrant was in fact a genuinely independent source of the
information and tangible evidence at issue here,” and the Supreme Court
observed that the second search would not have been independent “if the
agents‟ decision to seek the warrant was prompted by what they had seen
during the initial entry, or if information obtained during that entry was
presented to the Magistrate and affected his decision to issue the warrant.”
(Id. at p. 542, fn. omitted.) The facts here are significantly different than
those in Murray: the officers performed a full search and seized items from
Corbett‟s home and then sought a warrant based primarily on the
information about the prior search and the officers‟ observations during that
search. Weiss is the California Supreme Court‟s analysis of the Murray
decision and considers whether Murray requires the court to make a finding
that the police subjectively would have sought a warrant even without the
illegal conduct in the case. (Weiss, at p. 1079.) The California Supreme
Court answered that question in the negative: “Murray did not change the
long-standing rule that the reviewing court must excise all tainted
information [from the warrant application] but then must uphold the warrant
if the remaining information establishes probable cause.” (Id. at p. 1081.)
Neither of these independent source exception decisions tends to suggest that
the search warrant obtained here could validate the prior search because, as

                                      18
      The People argue that the trial court‟s reliance on Lundin, supra, 817
F.3d 1151, was “improper, given the weight of contrary, controlling
authority.” The People have not provided any contrary controlling authority,
nor have they demonstrated that the Ninth Circuit Court of Appeals‟
longstanding interpretation of the inevitable discovery doctrine conflicts with
the decisions of the United States Supreme Court. In any event, whether we
analyze this matter through the framework of Nix or Lundin, the outcome is
the same: the trial court properly suppressed the evidence seized during the
warrantless search of Corbett‟s home.

      III.   Impact of June 10 Warrant on the Inevitable Discovery
             Analysis
       The People argue that the evidence seized from Corbett‟s home in the
initial search on June 9 should not have been suppressed because the police
obtained a warrant to search the home the following day, June 10. They
contend that the search warrant issued on June 10 was validly issued based
upon independent probable cause, and argue that because the valid,
judicially authorized June 10 search warrant granted the police authority to
enter Corbett‟s home to search for and seize weapons, the fact of the issuance
of the warrant made it inevitable that law enforcement would have lawfully
obtained the firearms and ammunition that had been seized the day before
during the warrantless search of the home. Under this theory, the trial court
erroneously suppressed the evidence seized in the warrantless search of June
9 because the police obtained a warrant to return to the home on June 10.
       As the People acknowledged at oral argument, their inevitable
discovery doctrine argument hinges on the June 10 warrant being “validly
issued based upon independent probable cause.” The People argue that the
facts known to the police before they interviewed Corbett—the circumstances
of his offense and arrest, the records indicating that he was the registered
owner of eight firearms, and the fact that he had been served with an
emergency protective order that prohibited firearm ownership and


will be discussed in more detail infra, the People have not demonstrated that
the warrant application, after excising information obtained in violation of
Corbett‟s constitutional rights, established independent probable cause.

                                      19
possession—combined with their asserted entitlement to a search warrant
under Penal Code section 1524, subdivision (a)(11) because of the emergency
restraining order—are all facts that are “independent of—and not derived
from—the intervening unlawful entry into Defendant‟s residence.”
Accordingly, the People conclude, “the search warrant was validly issued
upon independent evidence that is unaffected by the prior unlawful entry into
Defendant‟s residence,” making it inevitable that the items illegally seized
the day before would have been seized eventually. This contention is without
merit.
       Family Code section 6389 makes it illegal for a person subject to a
protective order such as that here to own, possess, purchase, or receive a
firearm or ammunition while the protective order is in effect. (Fam. Code,
§ 6389, subd. (a).) Accordingly, firearms that are within the possession or
control of the restrained person must be relinquished: “upon issuance of a
protective order, as defined in Section 6218, the court shall order the
respondent to relinquish any firearm in the respondent‟s immediate
possession or control or subject to the respondent‟s immediate possession or
control.” (Fam. Code, § 6389, subd. (c)(1).) The statute establishes specific
procedures for firearms surrender. The relinquishment process “shall occur
by immediately surrendering the firearm in a safe manner, upon request of
any law enforcement officer, to the control of the officer, after being served
with the protective order.” (Fam. Code, § 6389, subd. (c)(2).) “Alternatively,”
the statute continues, if there is no request for relinquishment, “the
relinquishment shall occur within 24 hours of being served with the order, by
either surrendering the firearm in a safe manner to the control of local law
enforcement officials, or by selling the firearm to a licensed gun dealer.”
(Ibid.) Within 48 hours of service of the order, the restrained person must
file a receipt with the court that issued the order and the law enforcement
agency that served it showing that the firearm was surrendered to law
enforcement or sold to a licensed gun dealer.8 (Ibid.)

8     These provisions contemplate a firearms owner with firearms in or
subject to his immediate possession or control—not the case with a defendant
in custody. Other provisions of Family Code section 6389 further establish
that the relinquishment provisions of the statute are aimed at firearms that

                                      20
       Penal Code section 1524, subdivision (a)(11) authorizes the issuance of
a search warrant “[w]hen the property or things to be seized include a
firearm that is owned by, or in the possession of, or in the custody or control
of, a person who is subject to the prohibitions regarding firearms pursuant to
Section 6389 of the Family Code, if a prohibited firearm is possessed, owned,
in the custody of, or controlled by a person against whom a protective order
has been issued pursuant to Section 6218 of the Family Code, the person has
been lawfully served with that order, and the person has failed to relinquish
the firearm as required by law.”

      A. Basis for the Search Warrant

      Although the People argue that the police were entitled to a search
warrant under Penal Code section 1524, subdivision (a)(11) because of
Corbett‟s purported failure to comply with his firearms relinquishment
obligations after being served with the emergency protective order, the record
demonstrates that the search warrant was not sought on this basis. The
affidavit submitted in support of the search warrant application mentioned
that he had been served with a protective order but did not assert that
Corbett had refused or failed to comply with his obligations pursuant to the
protective order. Instead the People relied upon Corbett‟s purported consent
to search and the items that the police had discovered during the prior day‟s
search as the basis for the request to return to the home.
      The affidavit submitted in support of the application for a search
warrant contained evidence that: (1) Corbett entered the victim‟s home (with
a description of the incident and the celebrity status of the victim);
(2) Corbett committed stalking, a felony; (3) the firearms registry indicated


are within the possession or control of the restrained person. Family Code
section 6389, subdivision (g) provides that “The restraining order requiring a
person to relinquish a firearm pursuant to subdivision (c) shall prohibit the
person from possessing or controlling any firearm for the duration of the
order.” Also, if the restrained person “owns a firearm that is not in his or her
immediate possession,” upon notice of that fact the court may limit the
restraining order to exclude that firearm if the judge is satisfied the
respondent is unable to gain access to that firearm while the protective order
is in effect. (Fam. Code, § 6389, subd. (l).)

                                       21
he owned eight firearms; and (4) he had been served with an emergency
protective order. The search warrant affidavit did not describe any
requirement that Corbett surrender his firearms or any alleged failure to do
so. In fact, all the remaining material facts asserted in the affidavit
concerned the information obtained during the interrogation and the
warrantless search: the officer swore that in the June 9 interview, Corbett
gave “written and verbal consent to search his residence . . . for all firearms
and ammunition,” and that he provided the relevant passcodes and
combinations to access those items. The officer described the recovery of
rifles, handguns and ammunition from the home and the determination that
two of the seized weapons were fully automatic weapons, possession of which
was a felony pursuant to Penal Code section 32625, subdivision (a). The
officer then attested that all of the guns registered to Corbett except for one
had been found during the initial search, and that a third gun safe that had
not been mentioned by Corbett was located during that search. The officer
stated his belief that the final weapon and other firearms might be in the gun
safe and requested a warrant to search the safe for the final firearm and any
others inside.

      B. Emergency Protective Order

      Even if the police had sought the search warrant on the basis of
Corbett‟s purported violation of the emergency protective order, the People
have not established that a search warrant could properly have been issued
on this basis due to problems of notice and the absence of an opportunity to
comply with the protective order‟s firearms relinquishment obligations.

            1. Notice

      For a search warrant to be issued pursuant to Penal Code section 1524,
subdivision (a)(11), the emergency protective order must be “lawfully served”
on the restrained person. (Pen. Code, § 1524, subd. (a)(11).) While Corbett
was undisputedly served with an emergency protective order while in
custody, the order served upon him failed to give him notice of any firearms
relinquishment obligations as required by Family Code section 6389.
      Family Code section 6389, subdivision (f) provides that “[t]he
restraining order requiring a person to relinquish a firearm pursuant to

                                      22
subdivision (c) shall state on its face that the respondent is prohibited from
owning, possessing, purchasing, or receiving a firearm while the protective
order is in effect and that the firearm shall be relinquished to the local law
enforcement agency for that jurisdiction or sold to a licensed gun dealer, and
that proof of surrender of sale shall be filed with the court within a specified
period of receipt of the order. The order shall also state on its face the
expiration date for relinquishment.” (Fam. Code, § 6389, subd. (f).) The
emergency protective order included in the record contains no relinquishment
language. The document the People have identified to this court as giving
Corbett notice of the firearm restrictions—Exhibit B to the Motion to
Suppress—contains no mention of firearms at all, let alone an order that
Corbett relinquish or not possess firearms.9

      Family Code section 6389 also requires that “all forms providing notice
that a protective order has been requested or granted” include “a notice that,


9      Although the People chose to rely only on the first page of the
emergency protective order when they supported their contentions by
referring this court only to that page (Cal. Rules of Court, rule 8.204(a)(1)(C)
[briefs must “[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter appears]), we
are aware from our review that the record includes an exemplar of the second
page of a 2007 form for protective orders. On that second page, a full page of
text in fine print that is headed by the caption “WARNINGS AND
INFORMATION” is a statement that “PERSONS SUBJECT TO A
RESTRAINING ORDER ARE PROHIBITED FROM OWNING,
POSSESSING, PURCHASING, RECEIVING, OR ATTEMPTING TO
PURCHASE OR RECEIVE A FIREARM (PENAL CODE SECTION
12021(g)).” Penal Code section 12021, however, was repealed in 2012. (Stats.
2010, ch. 711, § 4.) Therefore, assuming that the blank copy of the emergency
protective order form in the record corresponds to the emergency protective
order served on Corbett, Corbett was given a protective order that failed to
mention firearms in the orders section of the document; did not refer to
relinquishment or surrender of firearms anywhere in the document; and in
the only place where firearms were mentioned, on the second page amongst
the other information about the protective order, it directed him to a repealed
statute for further information on his obligations with respect to firearms.


                                      23
upon service of the order, the respondent shall be ordered to relinquish
possession or control of any firearms and not to purchase or attempt to
purchase or receive any firearms for a person not to exceed the duration of
the restraining order.” (Fam. Code, § 6389, subd. (b).) Such a form existed at
the time of Corbett‟s arrest, but it was not used by the police. Instead, the
police used an outdated Judicial Council form that did not contain any
firearm relinquishment language.10

      The People assert that the emergency protective order served on
Corbett provided actual notice that he “could not possess or own a firearm.”
The People have failed to prove this contention. The emergency protective
order identified to this court by the People as the source of notice of the
firearm restrictions, Exhibit B to the Motion to Suppress, contains no

10     The 2007 form used here was determined by advisory committees of the
Judicial Council to be “somewhat difficult to understand because of its
layout.” (Judicial Council Invitation to Comment SPR12-26.) In 2012, the
Family and Juvenile Law Advisory Committee and the Civil and Small
Claims Advisory Committee of the Judicial Council recommended revision of
the 2007 form to “highlight the restrictions on firearms and ammunition in
the order and to clarify whether firearms have been reported, observed,
searched for, or seized in connection with an incident.” (Judicial Council
Invitation to Comment SPR12-26.) The proposed new form was designed to
“provid[e] directly in the order that the restrained person is prohibited from
owning, possessing, purchasing or receiving firearms or ammunition.”
(Judicial Council Invitation to Comment SPR12-26.) “Placing the firearms
restrictions directly in the order on page 1, instead of just in the information
on the reverse side of the form, will give greater force and prominence to the
firearms prohibition,” concluded the committees. (Judicial Council Invitation
to Comment SPR12-26.) The new form was adopted for mandatory use with
a revision date of January 1, 2014. Had the police used this form, the
protective order served on Corbett would have provided in the orders section
of the form—immediately after orders concerning harassment, contact, and
staying away from the protected person—this language: “YOU MUST NOT
own, possess, purchase, receive, or attempt to purchase or receive any
firearm or ammunition. If you have any firearms, you must turn them in to a
law enforcement agency or sell them to, or store them with, a licensed gun
dealer.”


                                      24
prohibition on owning firearms, and, indeed, no reference to firearms at all.
The People say that the order “cited Family Code sections 6200 et seq. on the
face of the document,” but they are referring to a tiny line in the footer of the
form, and they have not shown that while in police custody Corbett had
access to the legal resources that would have permitted him to obtain actual
notice of his obligations from this minuscule mention of a statute. Rodriguez,
the officer who served the order, testified generally at the suppression
hearing that he “explained what it says on the front and the back” when he
served to Corbett, but the People did not elicit any specific testimony to
establish that Corbett was advised of firearm restrictions at that time. The
People have failed to demonstrate that Corbett was given notice of his
obligations under Family Code section 6389.11

            2. Opportunity to Comply

      The People also have not shown that Corbett was given any
opportunity to relinquish his firearms or arrange for their surrender before
the police searched his home. It is undisputed that Corbett was in custody
from the time of his arrest through the time that his home was searched.
The only way the police would permit Corbett to comply with their
understanding of Family Code section 6389 was to consent to a warrantless
search of his home. No other avenue for compliance was available to Corbett
because the police held him in custody without the ability to make a
telephone call to arrange for relinquishment of the firearms, all of which were
outside his immediate custody or control, to the police or to a licensed gun
dealer. (Indeed, the People have not demonstrated that Corbett was ever
informed that the law provided that as an alternative to surrendering his
firearms to the police he could arrange for their conveyance to a licensed gun
dealer.) The People do not explain how Corbett could have “failed to
relinquish [his] firearm[s] as provided by law” (Pen. Code, § 1524, subd.
(a)(11)) without any opportunity to comply with the statute.


11    We emphasize, however, that the use of an outdated form for an
emergency protective order does not in any way relieve the subject of the
order of the obligation to comply with those portions of the order as to which
adequate notice has been given.

                                       25
       The People‟s view of this statute would permit the police essentially to
convert an emergency protective order—which requires only a showing of
good cause, not probable cause (Fam. Code, § 6320)—to a search warrant just
by holding the restrained person in custody for 24 hours. The trial court
recognized this problem, expressing concern that “the net result is that here‟s
the protective order, by the way, [your time to comply has] already expired,
we get to have your guns if we want them.” Moreover, because it is a
criminal offense to own a firearm while a protective order is in effect (Fam.
Code, § 6389, subd. (a)), this interpretation of the law would also permit law
enforcement to cause a restrained person to become criminally liable for a
violation of the statute just by keeping him or her in custody until the
expiration of the time frame provided in the statute. As the trial court
pointed out, this raises the issue of “what happens when we issue protective
orders that make people criminals because they haven‟t turned over things
that they couldn‟t turn over because they‟re in police custody.” Neither of
these consequences would afford due process.
       The People‟s interpretation of the statutory scheme also would create
equal protection dilemmas, because restrained persons with financial means
could protect their Fourth Amendment rights by posting bail and complying
with the relinquishment statute while indigent defendants would be forced to
waive their Fourth Amendment rights or to have their refusal to waive their
rights afford the basis for a search warrant and for criminal liability. As the
trial court recognized, “[I]f a very wealthy person were subject to an
[emergency protective order] and could immediately post bail, that . . . person
could then go and surrender his weapons and not have his home tromped into
by someone searching. Whereas someone who is living in a tent in skid row
of Los Angeles is going to be in jail for the 24 hours [after the protective order
is served], and wherever their weapons might be found they‟re not going to be
able to stop it.” In light of the absence of actual notice of his obligations
under Family Code section 6389 or any opportunity to comply with the law,
the People have not demonstrated that Penal Code section 1524, subdivision
(a)(11) offered a basis for obtaining a search warrant for Corbett‟s home.




                                       26
      C. Purported Refusal to Surrender Firearms

       The People attempt to avoid the problems of notice and opportunity to
comply by asserting that Corbett refused to surrender his firearms when
asked to do so during the interrogation. The People have not provided any
citation to the record to support this assertion, in violation of California Rules
of Court, rule 8.204(a)(1)(C), and the record contains contrary evidence: at
the suppression hearing the prosecutor asked Dunn, “Did the defendant,
during the conversation, ever decline to turn over his weapons to you?” Dunn
responded, “No.”
       We have reviewed the transcribed portion of the interrogation and have
not located any refusal to surrender weapons upon police request. Dunn did
tell Corbett that with the emergency protective order “comes with firearm
restrictions” and that they were “gonna have to hold on to those guns until
this thing gets resolved.” Dunn, however, did not ask Corbett to turn his
firearms in to the police or to arrange to sell them to or store them with a
licensed gun dealer. Instead, Dunn gave Corbett a choice: he could either
consent to a search of wherever the guns were located (“we can either go
there with your permission and voluntarily, you know, surrender the guns”),
or the police would “have to write a search warrant, in which case we‟ll have
to go into your house or your apartment and search the entire location until
we find the weapons that we know you have.”
       For his part, Corbett never stated that he refused to relinquish his
firearms. He simply invoked his right to remain silent repeatedly and told
the police, “You guys do what you have to do. I don‟t know what to tell you.”
When Dunn returned to questioning Corbett about the location of the
firearms and told Corbett again that he could give permission for the search
of his home or Dunn would “have to write a search warrant and I‟ll go there
with a team and do what we got to do to find them,” Corbett asked if he could
make a telephone call because he had not been given a call yet. Dunn refused
to provide Corbett with his requested telephone call until after the
interrogation. Dunn did not explore whether Corbett wanted to arrange for
the relinquishment, sale, or proper storage of his weapons, nor did he give
Corbett the means to make such arrangements to comply with his firearm



                                       27
obligations, suggesting an objective of gaining access to Corbett‟s home rather
than the surrender of firearms.
      As the record does not support the People‟s contention that Corbett
refused to relinquish his firearms, the People have not established on this
record that Corbett can be considered to have “failed to relinquish his firearm
as provided by law” as required to obtain a search warrant under section
1524, subdivision (a)(11).

      D. Analysis of Redacted Warrant Application

       When the affidavit supporting a search warrant contains information
derived from unlawful conduct as well as other, untainted, information, “the
reviewing court must excise all tainted information but then must uphold the
warrant if the remaining information establishes probable cause.” (People v.
Weiss, supra, 20 Cal.4th at p. 1081; see also Franks v. Delaware (1978) 438
U.S. 154 (Franks).)
       The People asserted at oral argument that the trial court found that
after excising illegally obtained evidence from the warrant application the
warrant was nonetheless issued on probable cause. From our review of the
extensive transcripts in the case it appears that the People requested that
the court make such a finding, but that the court declined the request to
excise the tainted information from the warrant application and to perform a
Franks analysis based on the untainted information known to the officers
prior to the interrogation, describing it as a “parallel, but not controlling,
kind of analysis” that could not overcome the policy against encouraging the
police to neglect the constitutional requirement of a warrant. The court was
very clear that it believed there had been probable cause that would have
allowed the police to obtain a warrant, but we have not found any review by
the trial court of the warrant application to determine whether it set forth
facts establishing independent probable cause, nor have the People identified
such an analysis in the record.
       Removing from the affidavit the information that the police obtained
improperly during the initial search, the warrant application does not contain
facts sufficient to establish independent probable cause to search Corbett‟s
home on June 10. The police did not identify any evidence of stalking or



                                      28
burglary that they had reason to believe would be in Corbett‟s home, and the
affidavit contained no facts from which it could be concluded that there was a
fair probability that evidence of stalking or burglary, or contraband relating
to those crimes, would be found at the residence. (See Gates, supra, 462 U.S.
at p. 238; Scott, supra, 52 Cal.4th 483.) The only evidence in the affidavit
demonstrating that there was a fair probability that contraband or evidence
of any crime would be found at Corbett‟s residence on June 10 was the fact
that the police had discovered during the warrantless search on June 9 that
Corbett possessed illegal automatic weapons and ammunition. That is, the
police relied on the fruits of their illegal search to justify their request for a
warrant authorizing them to conduct another search and to seize the gun safe
they had seen during the first search. This is not independent probable
cause—it is probable cause that resulted directly from, and was dependent
on, information derived from the illegal search. Therefore, the facts provided
in the search warrant application to establish probable cause were obtained
“by exploitation of th[e] illegality” of the earlier warrantless search, and not
“by means sufficiently distinguishable to be purged of the primary taint” of
the illegal police conduct. (Wong Sun, supra, 371 U.S. at p. 488; see also U.S.
v. Boatwright (9th Cir. 1987) 822 F.2d 862, 864-865 [the inevitable discovery
doctrine “requires that the fact or likelihood that makes the discovery
inevitable arise from circumstances other than those disclosed by the illegal
search itself”].) Accordingly, the People have not demonstrated that the
search warrant was issued based on independent probable cause, and they
have not established any error in the trial court‟s ruling that the evidence
obtained in the warrantless June 9 search of Corbett‟s home must be
suppressed.

                                DISPOSITION

      The writ petition is denied.




                                            ZELON, Acting P. J.



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We concur:




     SEGAL, J.




     KEENY, J.*




*    Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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