Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD212033, SCD218417, Theodore M. Weathers, Judge.
O'ROURKE, J.
In case number SCD212033, John Fenton Parkinson pleaded guilty to forgery and possession of financial institution papers with the intent to defraud (Pen. Code, § 476) and possession of a counterfeit seal (§ 472).) He also admitted having a strike prior. (§§ 667, subds. (c) and (e)(1) and 1170.12, subd. (c)(1).) Subsequently, in case number SCD218417, Parkinson pleaded guilty to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and to another count of forgery and possession of financial institution papers with the intent to defraud. (§ 476.) He also admitted committing those crimes while out on bail. (§ 12022.1, subd. (b).) The trial court sentenced him to a seven-year, four-month prison term.
All statutory references are to the Penal Code unless otherwise specified.
In this appeal from both cases, Parkinson contends the search of his bedroom violated his rights under the Fourth Amendment of the United States Constitution, and therefore the court erroneously denied his motion to suppress evidence under section 1538.5 because no facts justified a protective sweep; the search impermissibly exceeded the scope of a compliance check; and the good faith exception to a warrantless search was inapplicable. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 20, 2008, at approximately 10:30 a.m., Deputy Sheriff Chris Steffen accompanied parole agents to Parkinson's house to perform a compliance check for Shane Donovan, a parolee. The agents entered the house first and left the door open. Deputy Steffen entered afterwards and heard the agents talking to individuals inside. He did not ascertain those individuals' identities, but walked farther inside the house to determine whether anyone else was present. He contacted a man and a woman who came from the back area of the house. Parkinson's brother, Frank Tarantino, also came from that same area and closed a bedroom door. Deputy Steffen asked him what was happening and who else was inside the bedroom. Tarantino was surprised and nervous and replied evasively that no one else was there, and he did not know what was happening inside the bedroom. Deputy Steffen did not believe Tarantino and figured, based on his experience conducting parole compliance checks, that either the parolee or a dangerous person was hiding in the bedroom. Therefore, as was his practice, he decided to check the bedroom.
Because the bedroom door was locked, Deputy Steffen got a butter knife from the kitchen and jimmied the lock open. He searched the entire bedroom and did not find anyone hiding, but noticed what resembled counterfeit bills. He closed the bedroom door and notified his area detective. From the time he entered the room to when he searched the bedroom, three minutes had elapsed.
The detective telephoned an agent from the United States Secret Service and told him what Deputy Steffen found during the sweep. Relying on that information, the secret service agent typed an affidavit used to secure a warrant authorizing a bedroom search. The authorities found approximately $19,000 in counterfeit bills in various stages of production in Parkinson's bedroom.
In denying Parkinson's section 1538.5 motion, the trial court found Deputy Steffen's testimony was credible, and ruled that the search was a proper protective sweep justified for officer safety: "[T]he actions of Deputy Steffen were appropriate given the observation that he made of Mr. Frank Tarantino, specifically that when Mr. Tarantino came out of the room, that he locked the room, that he was looking over his shoulder, that 'he didn't make eye contact with [Detective Steffen], just acting real evasive, slow to answer, a lot of umm's, and looking real nervous.' I think that that gave Deputy Steffen reasonable suspicion then to believe that there might be someone in there, and for officer safety, this court believes that the officer was justified in entering the room to conduct a protective sweep."
DISCUSSION
Parkinson contends the trial court prejudicially erred in finding applicable the protective sweep exception to the warrant requirement. He maintains the search was not incident to an arrest, the agents had already apprehended the parolee, and no facts created a reasonable suspicion suggesting a dangerous person remained in the locked bedroom. Relying on Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie), Parkinson argues that a protective sweep in a home may only be conducted pursuant to an arrest warrant obtained based on probable cause that the officer's safety is endangered because of criminal activity in the home. We reject these contentions.
In reviewing the trial court's ruling on a motion to challenge the initial warrantless search, the resulting warrant, and the fruits of its execution, we defer to that court's factual findings when supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 598.) "The power to judge credibility, weigh the evidence, and draw reasonable inferences is vested in the trial court." (People v. Smith (2010) 190 Cal.App.4th 572, 576.) However, we exercise our own independent judgment when determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (Leyba, at pp. 597, 598 and fn. 1.)
"[T]he Fourth Amendment bars only unreasonable searches and seizure[s];" police may conduct a warrantless protective sweep in the home pursuant to other legal means of entry. (Buie, supra, 494 U.S. at pp. 331, 337.) A protective sweep is "a limited police search of the premises designed to ensure officer safety." (Id. at p. 327.) Like an investigative stop that the police conduct under the authority of Terry v. Ohio (1968) 392 U.S. 1, a protective sweep may be justified even if an officer lacks a warrant and probable cause to believe that officer safety was threatened. (People v. Ledesma (2003) 106 Cal.App.4th 857, 863 (Ledesma).) Buie established a "reasonable suspicion" standard: "[T]here 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, at p. 334.)
The disadvantage to the police of being on "[their] adversary's 'turf' " presents a greater risk to those conducting the arrest. (Buie, supra, 494 U.S. at p. 333.) Incident to an arrest, an officer may look in closets and other spaces within the immediate proximity of the arrest from which an immediate attack could occur and place the officer in danger. (Id. at p. 334.) Beyond these parameters, an officer needs an articulable reasonable suspicion that "the area to be swept harbors an individual posing a danger to those on the arrest scene." (Ibid.)
"The [United States Supreme Court] has emphasized the importance of allowing the officers on the scene 'to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'... and warned lower courts to avoid the 'unrealistic second-guessing' of police officers acting 'in a swiftly developing situation... the question is not simply whether some alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.' " (Ledesma, supra, 106 Cal.App.4th at p. 864 (citations omitted).)
Contrary to Parkinson's claim that a protective search may only be carried out pursuant to an arrest warrant, several courts have expanded the Buie doctrine to grant officers the right to conduct a warrantless protective sweep in other instances of lawful entry into a home. (People v. Smith (2010) 190 Cal.App.4th 572, 579 [upholding a protective sweep pursuant to a probation search]; Ledesma, supra, 106 Cal.App.4th at p. 867 ["[W]e revisit Buie and apply it to a protective sweep conducted prior to a valid probation search."].) "[The] officer safety analysis applies equally to a probation or consent search. Commonsense tells us that residential searches must be carried out with equal concern for the safety of officers, probationers, parolees, suspects and innocent occupants alike as those conducted pursuant to a search warrant." (Smith, supra, 190 Cal.App.4th at p. 579.)
Parkinson engages in "unrealistic second-guessing." (Ledesma, supra, 106 Cal.App.4th at p.864.) He argues that Deputy Steffen had no more than a "hunch" that individuals were hiding behind the locked bedroom door, and that hunch was insufficient to create a reasonable suspicion of danger to justify using the butter knife to unlock the bedroom door. He argues Deputy Steffen was not fearful because he entered the bedroom alone and without a weapon drawn. He specifically contends that Deputy Steffen needed to establish whether the parolee was one of the persons speaking with the agents before opening his bedroom door.
Although in Buie and Ledesma the court found reasonable suspicion based on the dangers of an arrest or the presence of drugs, the absence of these factors did not diminish Deputy Steffen's reasonable suspicion. (Buie, supra, 494 U.S. at p. 333 [reasonable suspicion included officers recognizing sufficient danger being on the adversary's turf].) A protective sweep may be justified by information "filtered through the lens of [the officers'] experience and training." (Ledesma, supra, at 106 Cal.App.4th p. 865.) The protective sweep is not aimed at locating a subject; but rather at protecting the officers, agents, and other persons in the house. (Id. at p. 867.) Further, Buie does not limit the search to the moment the subject is found; instead it dictates that the search shall last "no longer than is necessary to dispel the reasonable suspicion of danger and... no longer than it takes to complete the arrest and depart the premises." (Buie, supra, at p. 341.)
Here, Deputy Steffen possessed a reasonable concern for his safety after observing Tarantino's nervous answers and evasive behavior, and Tarantino's action in repeatedly glancing over his shoulder at the locked bedroom door from which he had just emerged. Further, Deputy Steffen was entitled to rely on the fact that he had previously contacted a man and a woman who had come from the area of the bedroom, and he knew from experience that people hide in bedrooms during parole compliance checks. Under these circumstances, it was reasonable for Deputy Steffen to conduct a protective sweep.
In light of that conclusion, we need not address Parkinson's contentions that the search impermissibly exceeded the scope of a parole compliance check, or that the good faith exception to a warrantless search was inapplicable.
Disposition
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P.J., IRION, J.