Filed 2/11/15 P. v. Yang CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FIVE


THE PEOPLE,
         Plaintiff and Appellant,
                                                                     A141340
v.
NENG VANG YANG,                                                      (Humboldt County
                                                                     Super. Ct. No. CR1300493)
         Defendant and Respondent.


         Defendant Neng Vang Yang was charged with possessing marijuana for sale after
police officers found large quantities of the drug while responding to a shooting inside his
home. (Health & Saf. Code, § 11359.) The trial court granted defendant’s motion to
suppress the evidence discovered during the search (Pen. Code, § 1538.5), and dismissed
the case in the interest of justice after the People indicated they would be unable to
proceed. The People appeal (Pen. Code, § 1238, subd. (a)(7)), arguing the marijuana was
discovered during a lawful protective sweep of the premises. (Maryland v. Buie (1990)
494 U.S. 325 (Buie). We agree and reverse.

                              I. FACTS AND PROCEDURAL HISTORY1
         At about 9:30 p.m. on November 23, 2012, Eureka Police Department officers
were dispatched to a single-family, two-story house on Progress Street after a shooting at
that location was reported. For safety reasons, they ordered everyone in the house to


         1
             The facts are taken from the hearing on the motion to suppress.

                                                             1
come outside. About six to eight people complied, all of whom appeared to be members
of the same family. Defendant was one of the people in the group and lived in the house.
       One of the men who came out of the house was handcuffed and taken into custody
after being identified as the shooter. The people outside the house told police the
shooting victim was the only person still inside. Officers entered the house and found the
victim in the kitchen, bleeding from a gunshot wound to his leg. They performed a
protective sweep to see whether any other suspects or victims were inside. The purpose
of the sweep was to “clear” the residence and make sure it was safe for medical personnel
and others to enter without fear of being attacked.
       Officer Stelzig covered the bottom floor during the sweep, while Officer Cooper
went upstairs, checking rooms and looking anywhere he thought a person might be.
Cooper entered one of the upstairs rooms and saw a large triple beam scale of the type
used for weighing larger packages of marijuana. He also smelled an “overpowering
odor” of marijuana.
       Cooper noticed what appeared to be a closet door inside the room that smelled of
marijuana (he did not recall whether it was open or closed) and looked inside. He saw
what he described as a large “attic” or “crawl space,” though it was on the same level as
the second flood itself, rather than overhead. Inside the room were a “couple of rifle
cases and several tubs and just areas where people could hide.” Cooper asked for more
officers to come upstairs to help him clear the space. When more officers arrived, they
entered the space and determined the rifle cases were empty. They saw large amounts of
processed marijuana inside the tubs, some of which were see-through. The attic smelled
of marijuana.




                                             2
       Stelzig advised defendant they had found marijuana upstairs and one of the
detectives would be “writing a search warrant” unless he gave consent to search the
home. Defendant signed a written consent form and the officers seized the marijuana.2
       Defendant was charged with possessing marijuana for sale in violation of Health
and Safety Code section 11359. He filed a pretrial motion to suppress evidence of the
marijuana seized at his home. The People opposed the motion, arguing the marijuana
was discovered in plain view during a lawful protective sweep of the premises under
Buie, supra, 494 U.S. 325. The court granted the motion to suppress in a written order
stating: “There were no articulable facts to support the search of the attic area on the
second floor, which exceeded the limited intrusion permitted by [Buie]. (See also United
States v. Akrawi (1990) 920 F.2d 418 [(Akrawi)].) It is of import that upon entering the
bedroom the officer smelled the overpowering odor of marijuana, saw a triple beam
scale, and searched the attic area in the bedroom and located the marijuana. The search
here went beyond a cursory protective sweep.”

                              II. STANDARD OF REVIEW
       Our standard of review in an appeal challenging an order on a motion to suppress
is well established. “We defer to the trial court’s factual findings where supported by
substantial evidence, but we must exercise our independent judgment to determine
whether, on the facts found, the search and seizure was reasonable under the Fourth
Amendment standards of reasonableness. [Citation.]” (People v. Avila (1997) 58
Cal.App.4th 1069, 1073-1074.)

                                    III. DISCUSSION
       Although the warrantless entry of a residence is presumptively unreasonable under
the Fourth Amendment of the United States Constitution, “ ‘police may enter a home
without a warrant when they have an objectively reasonable basis for believing that an

       2
        Although the evidence at the preliminary hearing showed the defendant and his
wife had medical marijuana cards, in the opinion of a qualified expert, the marijuana
seized was worth more than $10,000 and exceeded the amount of medical marijuana that
would be used by two individuals.

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occupant is seriously injured or imminently threatened with such injury.’ ” (People v.
Troyer (2011) 51 Cal.4th 599, 605 (Troyer) [officer responding to a reported shooting
who found gunshot victim on porch was entitled to enter home to locate possible
additional victims inside]; see Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 403
[officers entitled to enter home after they responded to complaints about a loud party and,
through a window, observed an assault].) Here, the police had an objectively reasonable
basis for believing a shooting victim was inside defendant’s home, and they were
justified in entering to render assistance and determine whether anyone else had been
hurt. (See Troyer, supra, 51 Cal.4th at pp. 607-609; Tamborino v. Superior Court (1986)
41 Cal.3d 919, 924-925 [police officer’s discovery of wounded person upon his forced
entry into an apartment where a robbery had been reported supplied reasonable cause to
reenter apartment and conduct search for additional victims after wounded person was
detained outside apartment].)
       Defendant does not challenge the officers’ entry into the home, but takes the
position that once they found the shooting victim on the first floor, they had no reason to
go upstairs and into the attic where the marijuana was discovered. The People argue
because the officers were justified in entering defendant’s home to render aid to the
shooting victim, they were entitled to search the upstairs for additional victims and
conduct a protective sweep of the entire premises to ensure their safety and that of the
emergency personnel who needed to enter the home to treat the known victim. We agree
with the People.
       In assessing the reasonableness of a search under the Fourth Amendment, “courts
have regularly considered the safety risks confronting investigating officers.” (People v.
Wilson (1997) 59 Cal.App.4th 1053, 1060.) Within certain parameters, police may
conduct a protective sweep of the premises when necessary to protect the safety of police
officers and others. (Buie, supra, 494 U.S. at p. 327; People v. Ledesma (2003) 106
Cal.App.4th 857, 863 (Ledesma).) In Buie, the court explained the proper scope of a
protective sweep in connection with an in-home arrest pursuant to a warrant: “[A]s an
incident to the arrest the officers could, as a precautionary matter and without probable


                                             4
cause or reasonable suspicion, look in closets or other spaces immediately adjoining the
place of arrest from which an attack could be immediately launched. Beyond that,
however, we hold that there must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those on the
arrest scene.” (Buie, supra, 494 U.S. at p. 334.)
       Although Buie involved a protective sweep in the context of an in-home arrest,
subsequent case law has extended its holding to other situations. (See Ledesma, supra,
106 Cal.App.4th at p. 864 [protective sweep in anticipation of probation search]; United
States v. Taylor (6th Cir. 2001) 248 F.3d 506, 513 [officer left to secure premises while
search warrant is obtained may conduct protective sweep]; Drohan v. Vaughn (1st Cir.
1999) 176 F.3d 17, 22 [officers executing search warrant may conduct protective sweep];
United States v. Patrick (D.C. Cir. 1992) 959 F.2d 991, 996-997, abrogated on other
grounds in Apprendi v. New Jersey (2000) 530 U.S. 466, as stated in United States v.
Starnes (7th Cir. 2013) 741 F.3d 804, 810 [officers who entered an apartment with
tenant’s consent properly performed protective sweep of bedroom]; Earle v. United
States (D.C. 1992) 612 A.2d 1258, 1264 [officers who entered home to investigate
reported gunshots based on emergency exception to the warrant rule were entitled to
perform protective sweep]; People v. Werner (2012) 207 Cal.App.4th 1195, 1206
[recognizing protective sweep may occur in connection with a detention or an arrest
outside the premises to be swept].) Properly distilled, these cases stand for the
proposition that when police have lawful cause to enter a residence, they may conduct a
protective sweep when the criteria of Buie have been met.3



       3
          Some federal courts have limited Buie to sweeps conducted in connection with a
lawful arrest inside a home. (See United States v. Hassock (2d Cir. 2011) 631 F.3d 79,
86-87; People v. Celis (2004) 33 Cal.4th 667, 678 (Celis).) Given the underlying purpose
of a protective sweep—to prevent violence against officers acting in the lawful conduct
of their duties—we conclude Buie is not so limited. (See Ledesma, supra, 106
Cal.App.4th at pp. 862-868.)

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       A protective sweep “can be justified by a standard lower than probable cause,
namely, reasonable suspicion.” (Celis, supra, 33 Cal.4th at p. 680 [assuming Buie
applied to detention outside a home, officers did not have reasonable suspicion to do a
sweep of home when defendant was detained outside and officers had no information
anyone was currently inside]; see Buie, supra, 494 U.S. at p. 327.) This standard “strikes
the proper balance between officer safety and citizen privacy.” (Buie, at p. 334, fn. 2.) In
determining the existence of reasonable suspicion, courts must evaluate the “ ‘ “totality of
the circumstances” ’ on a case-by-case basis to see whether the officer has ‘ “a
particularized and objective basis” ’ for his or her suspicion. [Citation.]” (Ledesma,
supra, 106 Cal.App.4th at p. 863.) “Among the circumstances that are appropriately
taken into account in evaluating a protective sweep are the type and location of the police
action contemplated following the sweep.” (Ibid.)
       Applying these principles to the case before us, it was objectively reasonable for
officers to conduct a protective sweep of the upstairs of defendant’s home. Police
officers were dispatched to the home to investigate a shooting. Several people,
apparently related to one another, left the house when ordered by the police and
confirmed the shooting had occurred. The suspected shooter was among that group and
was identified and arrested, but the victim remained inside the home and was in need of
medical attention for his gunshot wound. The officers did not have the option of leaving
the home once the suspect was in custody outside. They needed to remain inside to
attend to the victim and were entitled to conduct a protective sweep to ensure their own
safety and that of the emergency medical personnel who would treat the victim.
       Given the violent nature of the attack that had just occurred, officers were well
advised to ensure no one else remained inside before allowing emergency personnel to
enter the home. Although the family members outside told them there was only one
victim and only one shooter, they were faced with a fluid and dangerous situation and
were not required to accept this information at face value. (See Troyer, supra, 51 Cal.4th
at p. 608.) A person with a weapon hiding upstairs was potentially as dangerous as one
hiding on the first floor of the home, closer to the victim. It was reasonable for the


                                              6
officers to sweep the premises—downstairs and upstairs—and briefly look into those
areas “where a person may be found.” (Buie, supra, 494 U.S. at p. 335.) The attic space
in which the marijuana was discovered was an unfinished room on the same level as the
upstairs rooms, accessible through a doorway in one of those rooms. Because a person
could have been found in that space, it was reasonable for the officers to enter it, and they
were entitled to later seize the marijuana found in plain view. (People v. Superior Court
(Chapman) (2012) 204 Cal.App.4th 1004, 1014-1016.)
       The order granting the motion to suppress indicates the trial court found it of
“import” that upon entering the bedroom, Officer Cooper smelled marijuana and saw a
triple beam scale. This suggests the court was focused on the officer’s subjective reason
for entering the attic, rather than the objective circumstances. We consider the objective
reasonableness of the protective sweep, not the officer’s subjective intent, in determining
its legality under the Fourth Amendment. (United States v. Plummer (2005) 409 F.3d
906, 909; see Michigan v. Fisher (2009) 558 U.S. 45, 47; Whren v. United States (1996)
517 U.S. 806, 813.)
       Our analysis is not altered by Akrawi, supra, 920 F.2d 418, cited in the trial
court’s order. In Akrawi, federal agents executed an arrest warrant for a suspected
cocaine distributor at a home where both he and the defendant (Akrawi) were present.
(Id. at pp. 418-419.) Although the subject of the warrant was immediately arrested
downstairs when he answered the door, and although no search warrant accompanied the
arrest warrant, the agents “inexplicably” remained in the home for 45 minutes, at some
point searching all the rooms upstairs. (Id. at p. 419.) Akrawi was charged with
possessing a firearm found during the search, which police sought to justify as a
protective sweep. (Id. at pp. 419-420.) The Court of Appeals concluded his motion to
suppress the evidence should have been granted because (1) police had stated no basis for
believing dangerous individuals were present on the second floor, and (2) there was no
causal relation between the sweep and the claim the agents needed to protect themselves
when the record did not show at what point during their 45-minute stay the agents
conducted the sweep. (Id. at pp. 420-421.)


                                             7
       In the case before us, police officers were responding to a confirmed shooting
inside the defendant’s home rather than executing an arrest warrant at a house where
there was no evidence of recent violent criminal activity. The recent shooting made it
reasonable to sweep the upstairs looking for additional suspects or armed individuals who
might pose a threat to the officers and emergency personnel who needed to enter the
home. Moreover, the sweep in this case was conducted immediately upon the officers’
lawful entry into the home for the purpose of rendering aid to a gunshot victim. In
Akrawi, the prosecution failed to establish when the sweep occurred: “[W]e will not
presume that the sweep was short and that it occurred immediately after [the arrest]. If
the agents were concerned about safety, it seems unlikely they would have lingered in the
house for forty-five minutes after confronting [the arrestee] at the front door with no
resistance.” The facts of Akrawi are inapposite and do not support the trial court’s ruling
in this case.

                                      DISPOSITION
       The orders dismissing the information and granting defendant’s motion to
suppress under Penal Code section 1538.5 are reversed and the matter is remanded to the
trial court.




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                         NEEDHAM, J.



We concur.




SIMONS, Act. P. J.




BRUINIERS, J.




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