PEOPLE v. QUICK

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Collin Lee QUICK et al., Defendants and Appellants.

No. G018071.

Decided: September 29, 1997

Peter Dodd, Hornbrook, under appointment by the Court of Appeal, for Defendant and Appellant Collin Lee Quick. Roger S. Hanson, Santa Ana, for Defendant and Appellant Michael Patrick Marvich. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Warren P. Robinson and Douglas P. Danzig, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

I

INTRODUCTION

Federal and state law enforcement officers entered Michael Patrick Marvich's home and arrested Collin Lee Quick on an outstanding parole warrant.   During a protective sweep of the house, officers found marijuana in a bedroom closet.   Based on this discovery, the officers obtained a search warrant for the house, thereafter finding more contraband.

Appellants moved to suppress the evidence, contending Quick was not on parole and the officers' actions otherwise violated the Fourth Amendment.   After the trial court denied their motions, appellants pleaded guilty to possessing narcotics for sale and a weight enhancement.  (Health & Saf.Code, §§ 11378 [methamphetamine], 11359 [marijuana];  Pen.Code, § 1203.073, subd. (b)(2).)   In addition, Marvich admitted providing a place for the manufacturing of narcotics (Health & Saf.Code, § 11366.5, subd. (a)) and Quick admitted possessing a destructive device and having suffered a prior drug conviction (Pen.Code, § 12303;  Health & Saf.Code, § 11370.2, subd. (a)).  The court sentenced Marvich to three years formal probation and gave Quick a two-year prison term.

On appeal, Marvich contends his prosecution was barred under double jeopardy principles.   Appellants also renew their Fourth Amendment claims.   Finding the protective sweep of Marvich's home illegal, we reverse the judgments.

II

FACTUAL AND PROCEDURAL BACKGROUND

The issue of Quick's parole status has been litigated in federal and state court for the past decade.   We therefore present a detailed account of Quick's criminal history and the facts giving rise to this appeal.

In December 1986, Quick was released from prison after serving a sentence for a state narcotics conviction.   Eleven months later, federal and state officers conducted a parole search at Quick's residence in San Bernardino.   Based on the contraband found in his home, Quick was indicted by a federal grand jury on multiple counts of weapons and narcotics violations.   Quick moved to dismiss the indictment, claiming he was not validly on parole at the time of the search.   District Court Judge James M. Ideman granted the motion finding the state trial court, in accepting Quick's guilty plea, failed to inform him of any parole condition.   Thereupon, Judge Ideman dismissed the indictment and ordered Quick released from federal custody.

Nonetheless, the following week the California Board of Prison Terms issued an arrest warrant for Quick on the grounds he “has violated the conditions of his parole and is a fugitive from justice.”   In addition, United States Customs Bureau Agent Cari Hennen, who had worked on the federal case, began tracking down Quick.   When asked what prompted the new investigation, Hennen said she had a “long-term interest in it.   I put a lot of effort into the previous investigation.”

In April 1989, Hennen accompanied a fellow Customs agent to Marvich's Costa Mesa home as part of an unrelated investigation of Marvich.   To her surprise, Hennen recognized two vehicles at the residence which she associated with Quick.   Over the next several months, Hennen conducted periodic surveillance of Marvich's home but never saw Quick there.   Hennen also contacted Quick's parole agent, Brenda Lucas, with whom Hennen had worked on Quick's federal case.   Lucas advised Hennen about Quick's outstanding parole warrant and explained they would have to establish Quick lived at Marvich's house in order to arrest him there on the warrant.

On December 12, 1989, the Ninth Circuit Court of Appeals overturned Judge Ideman's order dismissing the federal indictment against Quick.   The court agreed the sentencing court's failure to inform Quick about parole made “[a]ny sentence of parole added on to [his] sentence [ ] invalid under California law.”   However, the court ruled this “did not result in prejudice since [Quick] was under the sentence of an alternative, valid parole.”   In essence, the court reasoned Quick could be deemed to have been on parole at the time of the search because, but for his good time/work time credits, he would have been imprisoned at such time.1

Hennen stepped up her investigation on the heels of the Ninth Circuit's ruling.   An investigative report dated January 16, 1990 states, “Quick will soon be reindicted and Customs will join ATF and Orange County District Attorney's Office in pursuing Quick and Marvich for further violations.” 2  The report also provides, “There is reason to believe that Quick and Marvich are currently conducting illegal activities out of [Marvich's house].   The Orange County District Attorney's Office is very interested and involved in Marvich's criminal past and his possible current violations and [is] willing to work together in this investigation.”

A report dated January 22 states, “[I]t is imperative that Quick's residency at [Marvich's home] be established for the purposes of searching Marvich's home, in search of Quick and proof of any current illegal activities by either suspects, and others.”  (Sic.) The report also alludes to Marvich's “Colombian drug smuggling connection” and alleges Marvich's “colorful criminal past includ [ed] at least two alleged ‘hits' Marvich made on a former girlfriend and an associate.”

To establish Quick's residency, Hennen organized 72 hours of nonstop surveillance of Marvich's home, beginning on January 23.   Over this period, Quick was seen coming and going from the house at all hours without knocking.

On the evening of January 25, Hennen organized a team of about 15 federal and state law enforcement officers to enter Marvich's residence.   Hennen instructed that in addition to arresting Quick, the team should search the house for other persons because “[i]t's standard for police safety.”   Hennen suspected Marvich's housemate, Tina Anderson, and ward, 18-year-old Van Lawrence, resided at the house, but she had no information indicating they were in any way dangerous.   Of course Hennen knew Quick had possessed weapons in the past, and she also had been told Marvich kept a gun by his easy chair and had been involved in several murders.3

Hennen testified the sole purpose for entering the residence was to arrest Quick on the parole warrant.   In fact, parole agent Lucas was the one who knocked on Marvich's front door and announced the officers' presence.   When no one answered, the team opened the door and entered the five-bedroom house.

Within seconds, Marvich, age 79, and Quick were forcibly handcuffed at gun point in the living room.   Other officers, including Larry Thayer, conducted a “protective sweep of the residence” to secure the scene.   After finding Anderson in an upper bedroom, Thayer proceeded to the lower bedroom, opened the closet door and saw a large trash bag on the floor.   When he kicked the bag “to see if anybody was underneath” it, the top opened, revealing marijuana.   Based on Thayer's discovery, Costa Mesa police obtained a search warrant and found additional marijuana, methamphetamine, cocaine and a blasting device in the house.

III

DOUBLE JEOPARDY ***

IV

THE FOURTH AMENDMENT

Predictably, appellants rekindle their attack on Quick's arrest warrant, claiming the Ninth Circuit's ruling Quick was on an “alternative, valid parole” is incorrect and therefore the officers had no justification for entering Marvich's home.   Appellants also challenge the officers' motives for entering the house, contending they used Quick's alleged parole status as a ruse to search for evidence of illegal activity.   We need not decide these issues because we find illegal the warrantless protective sweep leading to the marijuana discovery in the lower bedroom of Marvich's home.

 A.) Marvich's Standing to Contest Search of Lower Bedroom-In the federal forfeiture trial, Marvich testified the narcotics found in the lower bedroom of his house belonged exclusively to Quick.4  The Attorney General claims Marvich thus disclaimed any privacy interest in the bedroom and therefore lacks standing to contest the search.   However, lack of ownership in the items seized does not necessarily preclude Marvich from challenging the search of the bedroom.

 “To contest the legality of a search under the fourth amendment, the defendant must demonstrate a legitimate expectation of privacy in the place or item searched by showing an actual subjective expectation of privacy which society is prepared to recognize.  [Citations.]”  (United States v. Davis (9th Cir.1991) 932 F.2d 752, 756;  accord People v. Hernandez (1988) 199 Cal.App.3d 1182, 1189, 245 Cal.Rptr. 513.)   Moreover, in deciding whether defendant has met this burden, we do not rely solely on the defendant's disclaimer but instead consider all relevant evidence.   (People v. Allen (1993) 17 Cal.App.4th 1214, 21 Cal.Rptr.2d 668.)   After all, “[w]hat is a reasonable expectation of privacy is by definition related to time, place and circumstance.”  (United States v. Vicknair (5th Cir.1980) 610 F.2d 372, 380.)

At the suppression hearing, Marvich testified he seldom entered the lower bedroom, which was used as a guest room for his brother and Quick's son.   However, no one was staying there at the time of the search, and thus Marvich controlled the room.   He therefore had “a subjective expectation that it would remain free from governmental invasion[.]”  (People v. Ybarra (1991) 233 Cal.App.3d 1353, 1360, 285 Cal.Rptr. 200.)   Marvich also took “precautions to maintain his privacy” (ibid.) by keeping the room locked.   Considering as well his proprietary interest in the room (ibid.), we find Marvich has standing to challenge the search of that area.

 B.) Legality of Protective Sweep-The Attorney General contends the marijuana in the lower bedroom closet was discovered pursuant to a lawful protective sweep of the residence.   We disagree.

“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, 110 S.Ct. 1093, 1100, 108 L.Ed.2d 276.)   The standard is the same, even when the arrest is for a violent crime.  (Id. at p. 334, fn. 2, 110 S.Ct. at 1098;  see generally 3 W. LaFave, Search and Seizure (3d ed.1996) § 6.4(c), pp. 326-327.)

The Attorney General argues the officers reasonably believed they “might encounter violence when they executed the warrant,” in light of the following facts:  (1) “appellants had a history of narcotics and weapons involvement,” (2) “Marvich might have been involved in a previous murder,” (3) “Marvich kept a gun by his side,” (4) “Quick had previously been in possession of an automatic weapon,” (5) “Lawrence was somewhere between 18 and 20 years old,” (6) “Lawrence might be in the house,” 5 and (7) “it was not known whether Lawrence was dangerous or not.”   We do not disagree with this statement.   The officers' knowledge of appellants' backgrounds certainly justified their believing they “might encounter violence.”

 However, a Buie protective sweep cannot be based on a generalized expectation of violence at the arrest scene.   Rather, the facts must give rise to “a suspicion of danger from attack by a third party during the arrest[.]”  (United States v. Colbert (6th Cir.1996) 76 F.3d 773, 777, italics added.)   The dangerousness of the arrested individuals is largely irrelevant, particularly when, as here, they are detained as part of the initial entry.  (Ibid.;  United States v. Ford (D.C.Cir.1995) 56 F.3d 265, 270;   United States v. Henry (D.C.Cir.1995) 48 F.3d 1282, 1284.)

The record is devoid of specific and articulable facts from which the officers could reasonably suspect a threat from third persons inside Marvich's home.   There is no evidence Anderson or Lawrence were connected with any of the suspected illegal activities which may have been occurring at Marvich's home.   In fact, the officers did not even know if they were home during the raid.   When asked if she had any information about the two which would lead her to be concerned for her safety, Hennen, the lead agent on the case, candidly testified she did not.   The officers who conducted the sweep search likewise testified they had no specific information regarding the presence or potential dangerousness of third persons inside the residence.6

The Attorney General nonetheless maintains the protective search was justified because it was unknown whether Anderson and Lawrence were dangerous.   However, as the Sixth Circuit recently ruled, “Lack of information cannot provide an articulable basis upon which to justify a protective sweep.  [Citations.]  [ ] In fact, allowing the police to conduct protective sweeps whenever they do not know whether anyone else is inside a home creates an incentive for the police to stay ignorant as to whether or not anyone else is inside a house in order to conduct a protective sweep.   Finally, and perhaps most importantly, allowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court's explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home.  ‘No information’ cannot be an articulable basis for a sweep that requires information to justify it in the first place.”  (United States v. Colbert, supra, 76 F.3d at p. 778.)

 Indeed, “[i]f any possibility of danger were sufficient to create a reasonable belief of a danger, the police would have carte blanche power to conduct sweep searches of citizens' homes incident to virtually any arrest for a felony, whether violent or not, even where the arrestee surrenders at the front door;  by means of post-hoc rationalizations, the police could justify virtually any sweep search.   This would be contrary to the traditionally strong protection accorded to citizens' homes under both the United States and [state] constitutions.[7 ]  We further believe that this is why, in Buie, the Supreme Court affirmed the requirement that officers' perception of danger be based on some specific and articulable grounds.   In short, while officers need not have probable cause to believe a dangerous third person is present, the mere possibility of such a presence is not enough.   Instead, police must have specific and articulable grounds sufficient to support a reasonable belief that a person posing a danger is present.”  (Hayes v. State (1990) 106 Nev. 543, 797 P.2d 962, 967, first and fourth italics added;  see also United States v. Akrawi (6th Cir.1990) 920 F.2d 418, 420-421 [although arrestees were connected with a notoriously violent drug ring, protective sweep illegal where police had “no specific basis” for believing additional persons were present and dangerous];  United States v. Delgadillo-Velasquez (9th Cir.1988) 856 F.2d 1292, 1298-1299 [protective sweep illegal where officers had no information additional persons were in apartment].) 8

We appreciate the potential dangers to police officers in the field.   As recognized in Colbert, supra, “[O]fficers have an incredibly difficult and dangerous task and are placed in life threatening situations on a regular basis.   It would perhaps reduce the danger inherent in the job if we allowed the police to do whatever they felt necessary, whenever they needed to do it, in whatever manner required, in every situation in which they must act.   However, there is a Fourth Amendment to the Constitution which necessarily forecloses this possibility.   As long as it is in existence, police must carry out their often dangerous duties according to certain prescribed procedures, one of which has been transgressed here.”  (United States v. Colbert, supra, 76 F.3d at p. 778.)

Applying the fact-specific test set forth by the United States Supreme Court in Buie we are compelled to find the officers' protective sweep illegal for lack of specific and articulable facts the lower bedroom in Marvich's home harbored persons posing a danger to the entry team.   Simply put, appellants' backgrounds and the lack of information on Anderson and Lawrence cannot justify the warrantless sweep which took place.9  Since the marijuana found during the sweep was the primary basis for the subsequent search warrant, the warrant was invalid and all contraband seized from the residence is inadmissible.  (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441;  People v. Machupa (1994) 7 Cal.4th 614, 29 Cal.Rptr.2d 775, 872 P.2d 114.)

The judgments of the superior court and the order denying the motions to suppress are reversed.

I respectfully dissent.

In an era when the killing and maiming of law enforcement officers have become so common as to rarely even make newspapers' front pages, we should resist the temptation to second-guess arresting officers when they attempt to protect themselves from harm when effecting an arrest.   Cool reflection after the fact may lead us to conclude there really was no danger to the officers when arresting appellants.   However this is not the test under Maryland v. Buie (1990) 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276.   All that is required to sustain the sweep search is the presence of “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․”  (Id. at p. 334, 110 S.Ct. at 1098.)   The officers knew there probably were two other persons in the house.   They knew it was not unlikely there were weapons in the house.   Although they may not have had specific information about the other occupants of the house, they did know they were the kind of persons who were not merely found in proximity to but rather who associated with persons known to be potentially violent:  appellants.   These facts were articulable and articulated.   A rational inference may be drawn from those facts that armed persons, posing a danger to the arresting officers, might be in other rooms.   This should be enough to entitle the officers to act for their protection.

Even before Buie, our Supreme Court recognized an “emergency exception to the warrant requirement” in Tamborino v. Superior Court (1986) 41 Cal.3d 919, 924, 226 Cal.Rptr. 868, 719 P.2d 242.  Tamborino's footnote 2 quotation from Wayne v. United States (D.C.Cir.1963) 318 F.2d 205, 212, is particularly apt to these kind of cases:  “ ‘[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct.   People could well die in emergencies if the police tried to act with the calm deliberation associated with the judicial process.’ ”  (Tamborino v. Superior Court, supra, 41 Cal.3d at p. 924, 226 Cal.Rptr. 868, 719 P.2d 242, emphasis added.)

Buie recognized the “interest of the [arresting] officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.”  (Maryland v. Buie, supra, 494 U.S. at p. 333, 110 S.Ct. at 1098.)   The court recognized “[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter․  [U]nlike an encounter on the street or along a highway, an 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.”  (Ibid.)

The Buie court balanced the interest in the safety of the arresting officers against the arrested person's Fourth and Fourteenth Amendment right to be free from unreasonable searches by concluding that a “sweep search” incident to an arrest is not unreasonable if limited to “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.”  (Id. at p. 334, 110 S.Ct. at 1098.)   The court recognized that limiting the right to search to such “immediately adjoining” places might, however, not be sufficient for the protection of the arresting officers and held that more extensive sweep searches are permitted, provided there are “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.”  (Ibid.) Although respondent Buie argued a probable-cause standard should be applied to the search (id. at p. 331, 110 S.Ct. at 1096-97), the Supreme Court refused to do so, recognizing the interest of police officer safety outweighed respondent's constitutional rights.

None of the post-Buie federal cases relied on by my colleagues support their interpretation of the standard enunciated by the Supreme Court in that case.   In U.S. v. Colbert (6th Cir.1996) 76 F.3d 773, defendant was arrested some 40-50 feet outside his apartment and the only other occupant of the apartment had also been detained outside the apartment.   The court notes that justification for the sweep must depend upon “whether the arresting officers reasonably believed that someone else inside the house might pose a danger to them” (Id. at p. 777) and that the officer had testified “that he ‘didn't have any information at all’ when asked whether he had information that anyone was inside ․ prior to his decision to conduct the protective sweep.”   (Id. at pp. 777-778.)   Here the officers did have information and the information pointed to potential danger to their safety.

U.S. v. Ford (D.C.Cir.1995) 56 F.3d 265 is equally inapt to support my colleagues' analysis.   There, after the officer had ascertained there was no-one in the room, he continued his search by lifting a mattress, under which he found cocaine and other contraband.   As the court noted, “Agent Godfrey never suggested that a person might have been hiding under the mattress.   To the contrary, he testified that it would have been ‘[v]irtually impossible’ for someone to do so.”  (Id. at p. 270.)   Hence, clearly no articulable facts would support an inference of danger to the officer justifying the search.   The case is not even close to the one posed here.   Likewise, in U.S. v. Akrawi (6th Cir.1990) 920 F.2d 418 the searching officers “could not articulate any specific reason that they believed someone of danger to the agents was in the house at that time.”  (Id. at p. 419.)   Also, there, the search may not have been conducted until almost 45 minutes after the arrest.   Here, the sweep search was essentially contemporaneous with the arrest.

U.S. v. Henry (D.C.Cir.1995) 48 F.3d 1282, also cited by my colleagues, actually approved the use of a sweep search, this even though defendant had been arrested outside his apartment, where an “objective basis” existed “for the officers to fear for their safety after the arrest.”   (Id. at p. 1284.)   The “objective basis” consisted of information there might be weapons and associates of defendant in the house.   Factually the case is closest to the one before us except, in this case, the arrest took place inside the house, thus providing even greater justification for the search.

I would affirm the trial court's decision pertaining to the sweep search and uphold the validity of the ensuing search warrant.

FOOTNOTES

1.   The Ninth Circuit remanded “the case for an evidentiary hearing to determine whether there was reasonable suspicion justifying the parole search.”   Judge Ideman ultimately determined there was not.

2.   The author of this report is undisclosed, but the Attorney General represents it was most likely prepared by Customs personnel.

3.   Hennen had heard Marvich was implicated in the murder of an attorney and Lawrence's parents.   Apparently, there was insufficient evidence to try Marvich for the killings, and Lawrence was unaware Marvich was a suspect.

FOOTNOTE.   See footnote *, ante.

4.   Quick stayed in an upper bedroom of the house.

5.   As it turned out, Lawrence was not home during the raid.

6.   In his dissenting opinion, Justice Rylaarsdam suggests Lawrence's and Anderson's mere association with appellants made them a threat to the arresting officers.   However, the United States Supreme Court has repeatedly recognized an individual's mere proximity to suspected illegal conduct does not justify police intrusion.  (See Ybarra v. Illinois (1979) 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 [defendant's “mere propinquity to others independently suspected of criminal activity” does not give rise to reasonable suspicion];  Brown v. Texas (1979) 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 [defendant's presence in neighborhood frequented by drug users, coupled with officer's belief he “looked suspicious,” did not constitute reasonable suspicion to stop defendant];  Sibron v. New York (1968) 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 [defendant's extended interaction with known drug addicts did not supply justification for search and seizure].)   Were the rule otherwise, “suspicion by association” would permit a protective search of almost any residence with multiple occupants.

7.   (See United States v. United States District Court (1972) 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed.2d 752 [“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”].)

8.   The dissent's attempt to equate this case with the emergency situation presented in Tamborino v. Superior Court (1986) 41 Cal.3d 919, 226 Cal.Rptr. 868, 719 P.2d 242 is unavailing.   There, a police officer looking for persons involved in a robbery followed a blood trail inside an apartment.   The court found the warrantless entry justified because the officer reasonably could have believed he was acting in an emergency situation.  (Id. at p. 925, 226 Cal.Rptr. 868, 719 P.2d 242.)   In contrast, the police here created the exigency by choosing to execute the warrant inside Marvich's residence.   Given Quick's frequent comings and goings, the police could have easily arrested him outside the house.   They also could have minimized any potential danger once inside by taking appellants out of the house immediately upon their arrest.  (See Maryland v. Buie, supra, 494 U.S. at pp. 335-336, 110 S.Ct. at pp. 1099 [protective sweep may last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.”].) Instead, the entry team penetrated the entire residence.

9.   Nor can generalized concerns for officer safety, such as those expressed by agent Hennen.  “[T]he fourth amendment was adopted for the very purpose of protecting us from ‘routine’ intrusions by governmental agents into the privacy of our homes.”  (United States v. Castillo (1988) 866 F.2d 1071, 1079.)   To the extent Hennen ordered the protective sweep as part of a standard search procedure, it would be “patently unconstitutional.”  (Hayes v. State, supra, 797 P.2d at p. 967;  accord United States v. Schultz (E.D.Wis.1993) 818 F.Supp. 1271, 1274 [invalidating sweep conducted pursuant to routine departmental procedure];  see generally Richards v. Wisconsin (1997) 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 [generalized concerns for police safety do not justify a blanket exception to the Fourth Amendment's knock-notice requirement when the police are executing search warrants in felony drug investigations].)

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., concurs.