Filed 7/1/15 P. v. Bizieff CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068555
    Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF149976A)
    v.

ANASTASIA BIZIEFF,                                                                       OPINION
    Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P. J., Detjen, J. and Franson, J.
       Appellant Anastasia N. Bizieff was charged with three felonies: possession of a
loaded firearm while under the influence of methamphetamine (Health & Saf. Code,
§ 11550, subd. (e)); possession of a billy, blackjack, etc. (Pen. Code, § 22210); and
possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Appellant
was also charged with two misdemeanors: being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)); and possession of controlled
substance paraphernalia (former Health & Saf. Code, § 11364.1). It was further alleged
that the felonies were committed while appellant was released from custody for a
different, pending felony case. (Pen. Code, § 12022.1.)
       Appellant moved to suppress evidence seized pursuant to a “protective sweep”
search, alleging that a warrantless search of her residence did not meet any exception
under the Fourth Amendment. The trial court denied the motion.
       On November 14, 2013, appellant pled no contest to the charges for possession of
the billy club and possession of a controlled substance in exchange for probation and one
year in county jail. The prosecutor agreed to dismiss the remaining charges. On
December 12, 2013, imposition of sentence was suspended and probation was granted for
a term of three years. Appellant received 248 days for time served and statutory credit.
The court also imposed various fines.
       On appeal, appellant contends that the trial court erred when it denied her motion
to suppress evidence seized pursuant to the search because there was insufficient
justification for the protective sweep. She argues that the search violated her Fourth
Amendment rights under the United States Constitution and that the trial court’s denial of
her motion must be reversed.
       We reject her contention and affirm.




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                            STATEMENT OF THE FACTS1
       On July 31, 2013, at approximately 1:30 a.m., Kern County Sheriff’s Deputies
Ken Young and Edward Tucker responded to a residence to investigate a theft. Appellant
reported the theft and was living at the residence at that time. Appellant met Deputies
Young and Tucker at the back gate of her property and lead them inside. The residence
had two stories with a split flight of stairs leading to the second-floor loft. On the second
floor, there was an open area that looked down over the living room and dining room.
After they walked in, appellant sat down on the second stair.
       Deputy Young noticed that appellant appeared to be under the influence of drugs.
He asked if she had recently used methamphetamine, and appellant said that she had but
was not currently under the influence of the drug. Deputy Young conducted a field
sobriety test. At some point during the conversation with appellant, Deputy Tucker
alerted Deputy Young to a weapon lying, in plain view from where they were standing at
the bottom of the staircase, on the kitchen counter. It was a two-foot long billy club with
a sharpened spike protruding from one end.
       After discovering the club and believing that appellant might have been under the
influence, Deputy Tucker decided to conduct a protective sweep of the second floor while
Deputy Young continued the field sobriety test on appellant. Deputy Young testified that
the second floor looked out over the main floor, and it would not have been possible for
him to see a threat coming from above if there was one. Deputy Tucker walked up the
stairs, announcing his presence and received no answer. Upon reaching the second floor,
he noticed it had a “wide range view” of the floor below. In the first bedroom on the
second floor, he saw a rifle case lying next to the bed. He also found a loaded semi-
automatic shotgun, video surveillance equipment, and drug paraphernalia in the


1     The facts are drawn from the evidence presented at the hearing on the motion to
suppress held on October 24, 2013.


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bedroom’s walk-in closet. Deputy Tucker then cleared the other upstairs rooms and
found several more knives and other “edged and blunt-type weapons,” as well as
evidence of appellant’s recent prior arrest and glass pipes with residue consistent with
methamphetamine. He did not find anyone in the upstairs area.
       Prior to the protective sweep, Deputy Young informed Deputy Tucker that he had
responded to a call at appellant’s residence approximately 11 days before, on or about
July 20, 2013, for the brandishing of a firearm. During Deputy Young’s response on July
20, he observed several people throughout the residence, including a parolee named
Jeremy Holiday. Deputy Tucker knew of Holiday and also knew that he went by the
moniker “Pokey” because he had a reputation for stabbing people in fights. Deputy
Tucker testified that, during his conversations with appellant on the July 31 visit,
appellant said she knew Holiday and indicated to the deputies that she had prior dealings
with him. She also implied that Holiday may have been involved with “whatever was
going on” that night.
       Both Deputy Young and Deputy Tucker testified that they did not recall hearing
noises coming from the upstairs section of the house.2 Each also testified that they did
not recall asking appellant if anyone else was in the house. Deputy Tucker further
testified that it would not have mattered how appellant responded to such an inquiry, if
there was one, because he still would have done a protective sweep of the upstairs area.
                                      DISCUSSION
Standard of Review
       The standard of review of a trial court’s ruling on a motion to suppress is governed
by well-established principles. (People v. Ormonde (2006) 143 Cal.App.4th 282, 290
(Ormonde).) When there is no controversy concerning the underlying facts, as is the case

2.    Deputy Young testified that he recalled seeing several dogs in the house and that
he might have heard noises coming from upstairs. Deputy Tucker did not recall hearing
any dogs.


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here, the only issue is whether the law, as applied to the facts, was violated. (People v.
Werner (2012) 207 Cal.App.4th 1195, 1203 (Werner).) Thus, we must defer to the trial
court’s factual findings and independently apply the requisite legal standard to the facts
presented. (People v. Celis (2004) 33 Cal.4th 667, 679 (Celis).)
       Appellant contends that the trial court erred in denying her motion to suppress
because the warrantless search of her home was not supported by the protective sweep
exception to the warrant requirement of the Fourth Amendment of the United States
Constitution and article I, section 13 of the California Constitution. We disagree.
Applicable Law and Analysis
       An entrenched rule of constitutional law is that the Fourth Amendment bars
unreasonable searches and seizures. (Maryland v. Buie (1990) 494 U.S. 325, 331 (Buie).)
When determining reasonableness, a balance must be struck between the intrusion on an
individual’s Fourth Amendment rights and “its promotion of legitimate governmental
interests.” (Ibid.) Searches of a house, for instance, are generally not reasonable without
a warrant issued on probable cause. (Ibid.) Nevertheless, because of the need to balance
these competing interests, there are exceptions where neither a warrant nor probable
cause is required. (Ibid.) One such exception is the protective sweep.
       A protective sweep is “a quick, limited premises search incident to a lawful arrest
at a residence.” (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegal Evidence,
§ 346, p. 1210.) The rationale for a protective sweep is to protect officers from an
immediate risk of harm at the site of an arrest.3 (Buie, supra, 494 U.S. at p. 333
[analogizing the safety concerns of a protective sweep to those associated with a “frisk”
as established in Terry v. Ohio (1968) 392 U.S. 1, or a search of a car for weapons in


3       The protective sweep is not limited to circumstances immediately following an
arrest. It may also occur in conjunction with detention or a valid probation search.
(Werner, supra, 207 Cal.App.4th at p. 1206; see also People v. Ledesma (2003) 106
Cal.App.4th 857, 864 [protective sweep may precede a probation search].)


                                             5.
Michigan v. Long (1983) 463 U.S. 1032].) “[A]n in-home arrest puts the officer at the
disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of
unknown configuration is more to be feared than it is in open, more familiar
surroundings.” (Buie, supra, at p. 333.) However, the interest of protecting individual
privacy restricts the scope of the sweep. The protective sweep exception does not permit
a full search of the premises. It is limited to a “cursory inspection of those spaces where
a person may be found.” (Id. at p. 335.)
       A protective sweep “‘does not require probable cause to believe there is someone
posing a danger to the officers in the area to be swept.’” (Werner, supra, 207
Cal.App.4th at p. 1205.) Rather, it can be justified when there is merely “‘a reasonable
suspicion that the area to be swept harbors a dangerous person.’” (Ibid.) However, it
cannot be based on an “‘“unparticularized suspicion or ‘hunch.’”’” (Celis, supra, 33
Cal.4th at p. 678.) The test, as established in Buie, “requires a reasonable suspicion both
that someone is in the premises and that that person is dangerous.” (Werner, supra, at p.
1206.) The existence of a reasonable suspicion is determined by the totality of the
circumstances and whether officers had “‘“a particularized and objective basis”’ for his
or her suspicion.” (Ibid.) It must be shown that “articulable facts,” known to the officers
before the protective sweep began and considered with the rational inferences drawn
from those facts, existed that “would warrant a reasonably prudent officer to entertain a
reasonable suspicion that the area to be swept harbors a person posing a danger to officer
safety.” (Celis, supra, at pp. 679-680.)
       With these principles in mind, we consider the evidence in this case. The record
does not support appellant’s contention that Deputy Tucker lacked a reasonable suspicion
as required under Buie. On the contrary, facts from the scene and inferences drawn from
those facts support a reasonable suspicion that someone could have been in the house and
posed a viable threat to the officers from the second floor of the residence. Appellant
mentioned her association with Jeremy Holiday to the deputies, a violent criminal with a

                                             6.
reputation for stabbing others, and implied that he may have been involved with the
events that caused her to call the police; the deputies knew that Holiday was recently
present in the house; they were concerned about their exposure to a potential attack from
the second floor; and they observed a spiked billy club in the kitchen. Additionally, the
deputies were aware of the potential presence of a firearm based on a firearm call 11 days
prior. The totality of the circumstances gave the deputies reasonable suspicion to believe
that the residence harbored one or more dangerous persons who might threaten their
safety.
          Appellant contends that because neither deputy could recall asking whether
anyone else was in the house and neither testified to hearing noises coming from other
areas of the residence, they lacked the reasonable suspicion necessary to justify the
sweep. She relies on a number of recent California cases to support her argument.
However, the facts of each are distinguishable from the circumstances described here.
          For instance, in Celis, supra, 33 Cal.4th at p. 672, officers detained the defendant
and his accomplice outside his residence, which had been under surveillance for drug
trafficking. The officers then entered the home to conduct a protective sweep based
solely on one-day-old surveillance observations showing defendant’s wife and a male
juvenile in the house. (Ibid.) The officers found a box, large enough to hold a person,
which contained cocaine. (Ibid.) The California Supreme Court held that the facts
known to the officers when they entered the house fell short of a reasonable suspicion
necessary to justify the sweep. (Id. at pp. 679-680.) The court reasoned that officers had
no knowledge that anyone was inside on the day they detained the defendant, there was
no indication that the suspects were armed, and the officers had no indication that house
harbored a dangerous person. (Id. at p. 679.) Similarly, in Ormonde, supra, 143
Cal.App.4th at p. 287, officers, responding to a domestic violence call, detained a suspect
outside the defendant’s apartment and entered the apartment for a protective sweep.
Although the officer in that case had no reason to believe anyone was in the apartment,

                                                7.
he conducted the sweep to ensure the safety of the officers based on a general concern
about the dangerous nature of domestic violence calls. (Id. at p. 294.) The court held
that a general apprehension of danger, based solely on the nature of the call, was not
enough to amount to a reasonable suspicion that a potentially dangerous person was
inside the apartment. (Id. at p. 295; see also Werner, supra, 207 Cal.App.4th at p. 1209
[a mere abstract possibility that a dangerous person might be present is not enough to
justify a protective sweep].)
       Contrary to the circumstances in Celis and Ormonde, Deputies Young and Tucker
had more than a generalized apprehension of danger. Their testimony demonstrates that
they had a reasonable suspicion that someone else, capable of threatening their safety,
may have been in appellant’s house. Deputy Tucker observed a sharpened weapon in
plain view inside appellant’s home. Appellant mentioned that she knew Holiday and
implied that he may have been involved in the events that led her to call the police that
night. Deputy Tucker had prior contacts with Holiday and was familiar with his
reputation for stabbing people. Deputy Young also told Deputy Tucker that he had seen
Holiday at appellant’s house 11 days ago. Under the circumstances, Deputy Tucker
could have reasonably associated the weapon with Holiday based on appellant’s
statements and his prior dealings with Holiday. (Cf. People v. Ledesma, supra, 106
Cal.App.4th at p. 866 [Officer’s observation of a car parked close to defendant’s
residence was sufficient to create a reasonable possibility that the owner, a known drug
dealer, might be inside].) Moreover, the deputies’ exposed position beneath the loft area
made them particularly vulnerable to an attack from above. Deputy Tucker’s sweep was
quick and limited to areas where a person could have been hiding—specifically, the
upstairs loft area, bedrooms, and walk-in closet. (Buie, supra, 494 U.S. at p. 334 [In
interest of officer safety and without probable cause or reasonable suspicion, officers may
“look in closets and other spaces immediately adjoining the place of arrest from which an
attack could be immediately launched”].) Although appellant never confirmed whether

                                             8.
another person was in the house, the facts known to the deputies before the protective
sweep began provided a particularized and objective basis to reasonably suspect that the
loft area harbored a person who could pose a threat to officer safety.
                                     DISPOSITION
       The judgment is affirmed.




                                             9.
