People v. Sedillo CA2/6

Filed 10/21/20 P. v. Sedillo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B297757
(Super. Ct. No. 17CR05741)
Plaintiff and Respondent, (Santa Barbara County)
v.
SAMUEL SEDILLO,
Defendant and Appellant.
After the trial court denied his motion to suppress
evidence (Pen. Code,1 § 1538.5), Samuel Sedillo pled no contest to
felon in possession of a firearm (§ 29800, subd. (a)(1)), felon in
possession of ammunition (§ 30305, subd. (a)(2)), possession for
sale of a controlled substance (Health & Saf. Code, § 11378), and
possession for sale of a controlled substance with a loaded
firearm (Health & Saf. Code, § 11370.1, subd. (a)). He admitted
an enhancement for a prior strike (§ 667, subds. (d)(1) & (e)(1)).
1 Unless
otherwise noted, all subsequent statutory
references are to the Penal Code.
The trial court sentenced him to six years in state prison.2
Sedillo appeals, contending the trial court should
have suppressed the evidence because a protective sweep of his
bedroom was not warranted, and the shotgun found in the
bedroom was not in plain view. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Testimony of Officer Hensic
At the hearing on the motion to suppress evidence,
Senior Deputy Probation Officer Heidie Hensic testified that five
probation officers and six sheriff’s deputies conducted a search of
the residence of Sedillo’s brother Alex,3 pursuant to the search
terms of Alex’s postrelease community supervision (PRCS) for
drug sales. At a briefing before the search, an officer provided
information about the layout of the house. Detective Dennis
Thomas said he wanted to contact Sedillo if he was home.
Hensic testified that officers knocked on the front
door. Alex promptly answered the door. Alex initially said his
brothers were home, including Sedillo. But Alex and other family
members later said Sedillo was at work.
2 The information also included allegations of five prior
prison terms (§ 667.5, subd. (b)), but Sedillo did not admit them
and the trial court did not dismiss them or take other action
regarding them. (See People v. Langston (2004) 33 Cal.4th 1237,
1241 [court must either impose enhancement for admitted prior
or strike it]; People v. Mendez (1973) 35 Cal.App.3d 606, 609
[failure to impose sentence on counts or priors has effect of
dismissal].)
3We refer to Alex by his first name to avoid confusion. No
disrespect is intended.
2
Testimony of Sergeant Morris
Sheriff’s Sergeant Jarrett Morris testified he knew
Sedillo lived in the house, had a prior strike, and had a “violent
past,” including a conviction for section 245 (assault with a
deadly weapon or by means of force likely to cause great bodily
injury). At the briefing before the search, Detective Thomas said
he had information from an informant that there were “drugs and
possibly weapons in the home.” Morris did not remember the
specifics of that information, or whether it “was a reliable or
unreliable informant.”
There were security cameras outside the house
pointed up and down the street. Morris was told Sedillo
controlled the cameras from his bedroom. Morris believed the
cameras could have shown the officers approaching the house.
Deputies conducted a protective sweep of the
residence. Morris testified that every time deputies conduct a
probation or parole search or serve a search warrant, they follow
the same protective sweep routine to find everyone in the house
and gather them into one area.
Sedillo’s room was securely locked with a padlock on
the outside of the door. The residents said none of them had a
key to the padlock or knew where one was.
Morris had never been in the house before and was
not familiar with it. In his experience, criminals, drug dealers
and violent individuals who try to conceal themselves from law
enforcement commonly barricade themselves or have family
members hide them in a room. He testified “it would have been
very plausible that [Sedillo] would have been able to see us
coming and have somebody secure him or anybody else inside
that bedroom.”
3
Morris knocked on the door to Sedillo’s room and
called out to open the door. He did not receive a response and did
not hear any noises in the room. He stood to the side of the door,
then moved in front of it and kicked it open. He and a deputy
conducted a protective sweep of the room. They did not find
anyone inside. As they were leaving, Morris moved the door and
checked behind it to ensure no one was hiding in a closet or crawl
space. He saw a shotgun behind the door. Deputies then
obtained a search warrant.
Denial of motion
The trial court denied the motion to suppress
evidence. It found the protective sweep was supported by
reasonable suspicion and the shotgun was in plain view.
DISCUSSION
Sedillo contends the trial court erred when it denied
his motion to suppress because the evidence did not support a
reasonable suspicion that a dangerous person was in the room.
We agree.
In ruling on a motion to suppress, the trial court
determines the credibility of witnesses, resolves factual conflicts,
and weighs the evidence. (People v. Tully (2012) 54 Cal.4th 952,
979.) On review of the denial of a motion to suppress evidence,
“‘[w]e view the evidence in a light most favorable to the order
denying the motion to suppress.’” (Ibid.) We defer to the trial
court’s express and implied factual findings that are supported by
sufficient evidence. (People v. Beck and Cruz (2019) 8 Cal.5th
548, 592.) We exercise our independent judgment in determining
the reasonableness of the search. (Ibid.)
A warrantless search is presumed to be
unreasonable, and the prosecution has the burden to justify it.
4
(People v. Williams (1999) 20 Cal.4th 119, 127.) An exception
exists for a search of the residence of a person on PRCS.
(§§ 3453, subd. (f), 3465; People v. Douglas (2015) 240
Cal.App.4th 855, 857.) A PRCS search is generally limited to
those areas over which the individual has complete or joint
control. (People v. Woods (1999) 21 Cal.4th 668, 682 [probation
search].)
Protective sweep
“‘The Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific
and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.’”
(Maryland v. Buie (1990) 494 U.S. 325, 337 (Buie).) The officer
must have “a reasonable suspicion both that another person is in
the premises and that that person is dangerous.” (People v.
Werner (2012) 207 Cal.App.4th 1195, 1206 (Werner), italics
original.)
In addition to in-home arrests, protective sweeps are
authorized for other situations in which officers are inside a
residence. For example, in People v. Ledesma (2003) 106
Cal.App.4th 857, 864, 867 (Ledesma), the court upheld a
protective sweep preceding a probation search, including a sweep
of nonprobationers’ bedrooms. The same considerations
regarding a probation search would apply to a protective sweep
before a PRCS search.
The entry to Sedillo’s bedroom was not justified based
solely on the deputies’ normal practice in conducting protective
sweeps. A protective sweep “is decidedly not ‘automati[c],’ but
may be conducted only when justified by a reasonable, articulable
5
suspicion that the house is harboring a person posing a danger to
those on the arrest scene.” (Buie, supra, 494 U.S. at p. 336.) A
sweep is not “always justified prior to a search” but must be
based on reasonable suspicion. (Ledesma, supra, 106 Cal.App.4th
at p. 864, italics original.) “‘[T]he mere abstract theoretical
“possibility” that someone dangerous might be inside a residence
does not constitute “articulable facts”’ justifying a protective
sweep.” (Id. at p. 866; Werner, supra, 207 Cal.App.4th at p.
1209.)
The theoretical possibility that family members
locked Sedillo inside the room was not supported by “specific and
articulable facts.” Family members denied having a key. There
was no response when Morris knocked, and he heard no noises
coming from the room. Alex originally said Sedillo was home, but
family members later said he was at work. The reasonable
inference from the locked padlock on the outside of Sedillo’s
bedroom door was that he left the room and locked the door
behind him.
Morris’s experience that family members sometimes
hide criminals does not by itself establish a reasonable suspicion
that that occurred here. The situation here is more analogous to
that in People v. Ormonde (2006) 143 Cal.App.4th 282. There,
officers conducted a protective sweep of a house in a domestic
violence case based in part on their experience that domestic
violence cases were dangerous, and guns, knives and emotional
persons were frequently present. (Id. at p. 286.) The court
declined to rely on these prior incidents because to do so “would
be tantamount to creating a domestic violence exception to the
warrant requirement.” (Id. at p. 295.) Similarly here, the
officer’s prior experience with criminals and drug dealers hiding
6
in a residence does not establish a reasonable belief that Sedillo
was in the bedroom behind the padlocked door.
The trial judge mentioned the possibility of there
being another access to the locked bedroom. But Morris did not
mention this possibility, another officer had already provided
information about the layout of the house, and there was no
evidence any of the officers checked for another entrance. “‘“No
information” cannot be an articulable basis for a sweep that
requires information to justify it in the first place.’” (Ledesma,
supra, 106 Cal.App.4th at p. 866.)
Moreover, the facts do not warrant extending the
protective sweep doctrine to a room locked from the outside with
a padlock. Even if Morris suspected Sedillo was inside the room,
the evidence does not support a reasonable suspicion he was
dangerous. Morris knew Sedillo had a prior strike and “a violent
past,” including a prior 245. But the prior strike was for a
violation of section 245 committed in 2008, eight years earlier.
And as noted by the trial judge, the informant’s claim that “drugs
and possibly weapons were in the home” had “not been fleshed
out in any way, shape or form.” Morris did not even know if the
informant was reliable or unreliable. An uncorroborated tip from
an informant whose veracity has not been established is
insufficient to establish a reasonable suspicion. (People v.
Carney (1983) 34 Cal.3d 597, 612-613, revd. on other grounds
in California v. Carney (1985) 471 U.S. 386 [tip not justify
protective sweep]; People v. Pitts (2004) 117 Cal.App.4th 881, 886
[tip not justify investigative detention].)
Finally, the evidence did not show how Sedillo could
have been a threat from inside the room during the period
required to conduct the PRCS search. Sedillo could not leave the
7
room through the door because it was padlocked from the outside.
And there was no evidence to support the abstract possibility that
Sedillo, who Morris believed might be hiding quietly in the locked
bedroom, might attempt to shoot a firearm blindly through the
closed door. In sum, the evidence does not support a reasonable
suspicion based on specific and articulable facts that Sedillo was
in the padlocked room and posed a danger to the officers.
In response to our dissenting colleague, who accuses
us of “appellate bravado,” we agree (as we must) with his cited
authority, People v. Leyba (1981) 29 Cal.3d 591, 596-597, which
provides as follows:
“In the first step the trial court must ‘find the
facts’ relating to the challenged search or seizure:
e.g., it must decide what the officer actually
perceived, or knew, or believed, and what action he
took in response. These are traditional questions of
fact, and the statute vests the superior court with the
power to decide them. . . .
“No less important, however, is the second step
of the process. As we observed in Lawler, ‘The trial
court also has the duty to decide whether, on the
facts found, the search was unreasonable within the
meaning of the Constitution.’ (Ibid.) Because ‘that
issue is a question of law,’ the appellate court is not
bound by the substantial evidence standard in
reviewing the trial court’s decision thereon.”
Here, there is no significant disagreement as to the
facts, i.e., what the officer “perceived, or knew, or believed, and
what action he took in response.” The issue is whether the
search was objectively reasonable based on the facts as
8
determined by the trial court. We have a duty to determine this
“question of law” independent of the trial court’s decision.
And although it should not be necessary to write this
(but for the dissent’s hyperbolic comments), we recognize that
police officers have a difficult and important job. They are often
called upon to risk their lives in service to the public. But it is
not our charge to unquestionably defer to actions which raise
constitutional implications. Rather, it is the duty of the courts to
safeguard citizens against unlawful intrusions on their
constitutional rights. (Mapp v. Ohio (1961) 367 U.S. 643, 647.)
In fulfilling this role, we sit not in an ivory tower (as suggested by
the dissent), but as a bulwark against unreasonable searches by
the state. (California v. Acevedo (1991) 500 U.S. 565, 586 (dis.
opn. of Stevens, J.).) As succinctly stated in Johnson v. United
States (1948) 333 U.S. 10, 17:
“An officer gaining access to private living
quarters under color of his office and of the law which
he personifies must then have some valid basis in law
for the intrusion. Any other rule would undermine
‘the right of the people to be secure in their persons,
houses, papers, and effects,’ [footnote omitted] and
would obliterate one of the most fundamental
distinctions between our form of government, where
officers are under the law, and the police-state where
they are the law.”
Plain view
An officer who sees incriminating evidence in plain
view while conducting a lawful protective sweep may lawfully
seize it without a warrant. (Buie, supra, 494 U.S. at p. 330;
People v. Superior Court (Chapman) (2012) 204 Cal.App.4th
9
1004, 1013, 1016.) But because deputies did not lawfully enter
Sedillo’s room, they did not observe the shotgun from a place they
had a lawful right to be. Accordingly, the plain view doctrine
does not apply and the observation of the shotgun should have
been suppressed. (People v. Camacho (2000) 23 Cal.4th 824, 831-
832.)
Search warrant
The only evidence seized pursuant to the protective
sweep was a shotgun. Deputies then obtained a search warrant
and located additional guns, ammunition, and drugs. Sedillo
moved to suppress the shotgun “and all of the evidence found
thereafter.” The motion states that the warrantless discovery of
the shotgun was used to support the search warrant affidavit.
If the warrant was based on the discovery of the
shotgun, the warrant would be invalid as fruit of the poisonous
tree. (People v. Machupa (1994) 7 Cal.4th 614, 628.) But the
warrant would be valid if sufficient probable cause remains after
excising information obtained during the sweep. (People v.
Morton (2003) 114 Cal.App.4th 1039, 1049.)
The prosecution relied on the search warrant in its
opposition to the motion to suppress. But the search warrant
affidavit was not presented at the hearing and is not included in
the record on appeal. Because we do not have a complete record,
the trial court shall conduct further proceedings to determine the
validity of the warrant should the issue be raised on remand.
(Werner, supra, 207 Cal.App.4th at p. 1213.)
DISPOSITION
The judgment is reversed. The trial court shall
permit Sedillo to withdraw his no contest plea. The trial court
10
shall vacate its order denying the motion to suppress, and shall
conduct further proceedings consistent with this opinion.
NOT TO BE PUBLISHED.
TANGEMAN, J.
I concur:
PERREN, J.
11
YEGAN, Acting P. J., Dissenting:
The majority seem very brave in the ivory tower of
the court of appeal. We are far away from the dangerous streets
of California. In my opinion, except in extreme cases, the last
thing that appellate court justices should do is “second guess”
police officers who believe that a “protective sweep” of a house is
necessary for their safety and the safety of the residents. They
are trying to not only enforce the criminal law, but are trying to
go home at the end of the shift. We need police officers, “live
ones,” to see that the laws are followed. (In re Richard G. (2009)
173 Cal.App.4th 1252, 1255, citing People v. Koelzer (1963) 222
Cal.App.2d 20, 27 (Koelzer).) Here, the majority fault the police
for conducting a “protective sweep” of a residence occupied by a
person on PRCS with search terms and whose brother, appellant,
is a known violent convicted felon who is not allowed to have
firearms. The majority’s approach to the balancing of competing
rights should not be viewed with “appellate bravado.” The net
result of the majority opinion is a one-day license for a felon to
possess a firearm.
The majority opinion places a premium on the
children’s game of “Hide and Seek.” Only, this is not a children’s
game and the lives of police officers are at stake. There should be
no benefit for a convicted felon to hide either himself and/or his
shotgun and/or his drugs in a padlocked room as a shield to
prevent peace officers from doing the job they are sworn to do. As
I shall explain, the majority have retried the case on appeal. In
doing so, they have impermissibly substituted their judgement on
the facts for that of the trier of fact. They draw inferences away
from the order here under review on almost every item of
evidence. They are not allowed to do so. (See, e.g., People v.
1
Leyba (1981) 29 Cal.3d 591, 596-597.)1
1Appellant’s brother was on PRCS with “search terms.” Is
there a better place to hide his own drugs than in a padlocked
room? Are the police required to believe brother that this was
solely the domain of appellant? And, if brother was truthful
when he told police that appellant was home, and the police could
not find him, isn’t is reasonable to rationally suspect that
appellant was hiding in the locked room?
There is no question but that an appellate court reviews
questions of law de novo and if the majority would just say that
as a matter of law, the police cannot forcibly enter a padlocked
room not occupied by a PRCS defendant, then this appeal would
present a pure question of law. But, my experience tells me that
there is reweighing going on here. I will cite three instances:
First, the majority opinion states that the reasonable inference is
that appellant left the room and locked the door behind him.
This is astonishing and it is the majority’s inference, not that of
the trial court. This is retrying the case on appeal. Second, the
majority opinion states that appellant was not dangerous. This is
astonishing and at variance with not only with the trial court’s
finding, it is variance with common sense. To say that a person
who has been sentenced to state prison five separate times
including assault with a deadly weapon, is not dangerous, does
show appellate bravado. This is retrying the case on appeal.
Third, the majority opinion recites there is no evidence to support
the articulated belief that appellant was quietly hiding in the
bedroom and might shoot blindly through the door. This is at
variance with the trial court’s ruling. This is the inference drawn
by the majority, not by the trial court. This is retrying the case
on appeal. The trial court expressly believed, and factually found
“the family [told the police and probation officers] that [appellant]
is in the room.” This is a “clincher” easily equated with the
concept of an adverse factual finding.
How am I so sure that the above findings and inferences
are not that of the trial court? It would have granted the
2
Before I explain why the order denying suppression
should be affirmed, I make it perfectly clear that if, for one
moment, I believed that the “protective sweep” was a ruse to gain
entry into appellant’s room to conduct a search, I would
unhesitatingly agree that the suppression motion was
meritorious. But that is not what happened. The trial court
credited the testimony of the police officers. It is presumed that
the trial court was familiar with the charging information. It
believed the police officers and on appeal, we are required to
credit their testimony and the reasonable inferences to be drawn
therefrom.
I quote the relevant portions of the order denying
suppression. I parenthetically observe that this ruling is a
textbook example of how a trial court should explain its ruling.
“THE COURT: . . . So the issue in the [Pen. Code, §] 1538.5 is
whether there was reasonable suspicion to support a protective
sweep. . . . [¶] The facts in support of [denial of the suppression
motion] are that Deputy Probation Officer Hensic testified that
the probationer said his brothers are home and then specifically
indicated that [appellant] was home, that the house and adjacent
areas were covered by security cameras, and that the officers had
information from the family that the viewing area for those
cameras was inside of the locked bedroom, that the [appellant]
had a prior [Pen. Code, §] 245 and prior multiple drug sale
convictions, that they had received information without – and
that information has not been fleshed out in any way, shape or
form, but that there was information that potentially drug sales
and weapons were happening in that house. The officers asked
suppression motion had it made the findings suggested by the
majority.
3
for a key. There was no key to be had. [¶] . . . But, really, the
issue in this case is what . . . articulable facts and reasonable
inferences support that a reasonably prudent officer would
believe a person who’s a potential danger was in the residence.
[¶] Here we have, one, the particular person that the officers are
concerned about is an identified person and an identified person
who they believe is involved in drugs and potentially weapons
who has a prior significant criminal history, and two, the
reasonable articulated facts that he was in the room with the
family telling them that he’s in the room. On the basis of that
information, a reasonably prudent officer would have searched
the room. [¶] The fact that there was a padlock on the outside is
troubling. It means that in order for someone to have been in
there, someone either had some other access to the room or
someone locked them in the room. However, given that there’s
security coverage of the house available from that room, the fact
that there are other explanations, the officers don’t have to be
right that someone was in the room, but what they simply need is
a reasonable suspicion that’s based on articulable facts and
reasonable inferences, and in this case I’ll find that the protective
sweep was supported by reasonable suspicion, and particularly as
the Court indicated in People v. Ledesma [(2003)] 106
Cal.App.4th [857,] 863, the Supreme Court ‘has repeatedly held
that in determining the existence of reasonable suspicion, the
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. The 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
4
information available to them that might well elude an untrained
person,”’ further, in considering the information filtered through
the lens of their experience and training, ‘a prudent officer will
consider safety concerns triggered by the search in determining
the appropriateness of first conducting a sweep, and the
reviewing court must do the same.’ [¶] . . . The question is was
the officer in a place that he had a legal justification to be and
was it in plain view. I’ll find the shotgun was in plain view in a
place where the officer had the right to be. On that basis, the
[Pen. Code, §] 1538.5 motion is denied.”
Rather than recite the facts as the majority does to
justify reversal, I will recite the facts as found by the trial court
and the reasonable inferences that may be drawn therefrom.
Then, the objective reader will make up his or her own mind. In
street parlance, appellant is a “five-time loser.” In legal parlance,
appellant has been sentenced to state prison on five separate
occasions. His name must be a household word at the police
station and they wanted to talk to appellant and his brother
concerning possible illegal drug sales at the house. Why? An
informant had told the police or probation officers there was drug
activity at the house and that there might be firearms in the
house. The police are supposed to investigate crime.
Appellant has a history of violence and has been
sentenced to prison for assault with a deadly weapon. He had set
up an elaborate camera system for his house including the ability
to monitor who was coming down the street. Appellant’s brother
had “search terms” as a condition of his release on PRCS for drug
sales. The police lawfully entered the residence pursuant to the
“search terms.” Appellant’s brother initially told the police that
appellant was at home. This could have been an honest mistake
5
or it could have been a clue that the brother was lying and that
he had locked appellant in the room where illicit drugs and
firearms were hidden. The room was locked on the outside with a
padlock. Appellant’s brother said that he did not have a key. He
told the officers to “kick the door.” The officers gave a “knock-
notice.” Then, they forced entry to make sure that appellant or
someone else was not hiding in the room with a firearm.
Appellant was not in the room but his illegally possessed shotgun
was in the room. The police then obtained a search warrant and
seized the shotgun and drugs. This is what they are supposed to
do.
Now I ask the objective reader, given what the police
knew, would a reasonable and prudent police officer “take a
chance” and not perform a “protective sweep” to make sure that
appellant was not lurking behind the door? This is not far-
fetched and history has shown that criminals do shoot through
closed doors. But the majority want the police to take that
chance. And, had the police not gone into the room and had
appellant or someone else shot through the door, the police would
be faulted for not going into the room. As Presiding Justice Fred
Pierce has said, “police officers [are entitled to protect
themselves] . . . [t]his is a rule of necessity to which a right as
basic as that of privacy must bow. To rule otherwise would be
inhumanely to add another hazard to an already very dangerous
occupation. Our zeal to fend off encroachments upon the right of
privacy must be tempered by remembrance that ours is a
government of laws to preserve which we require law
enforcement officers—live ones. Without becoming a police state,
we may still protect the policeman’s status.” (Koelzer, supra, 22
6
Cal.App.2d at p. 27.) The suppression motion was properly
denied.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
7
James K. Voysey, Judge
Superior Court County of Santa Barbara
______________________________
Linda L. Currey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.