Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. Super. Ct. No. VCF220547B
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Franson, J.
Following denial of her suppression motion (Pen. Code, § 1538.5) and related motion to dismiss (§ 995), appellant Isabel Cardenas Delgadillo pleaded guilty to possessing methamphetamine for sale in violation of Health and Safety Code section 11378, and she admitted violating her probation in another case. Placed on five years’ probation on various terms and conditions, she now appeals, claiming her suppression motion should have been granted. For the reasons that follow, we conclude that the officers’ entry into Delgadillo’s home violated her rights under the Fourth Amendment to the United States Constitution, and that the evidence seized, including her statements, should have been suppressed. Accordingly, we reverse the judgment and remand the matter.
All statutory references are to the Penal Code unless otherwise stated.
Delgadillo was jointly charged with Ernest Ruben Garsa, who is not before us in this appeal. Prior to the preliminary hearing, Garsa moved to suppress evidence. Delgadillo joined in the motion, which was heard in conjunction with the preliminary hearing. After the suppression motion was denied as to each defendant and Delgadillo and Garsa were held to answer, Delgadillo renewed the motion pursuant to section 1538.5, subdivision (i) and section 995. As these motions were submitted on the transcript of the preliminary hearing, the facts are taken from that hearing.
Parole Agent Truman Jennings was Garsa’s assigned parole officer. In the couple of years he had been so assigned, Jennings had made contact with Garsa at various residences that Garsa had used, most recently in May or June 2008. Garsa’s parole conditions included a search of his residence of record, and his person was subject to search any time of the day or night by Jennings or any law enforcement officer having business with Garsa. Based on policy with respect to the residence of record, a parole agent must make contact with the parolee at the residence before having search rights there. If Garsa were contacted in the community or, for example, in a vehicle other than his own that he was not operating, the search would be limited to the immediate area in which Garsa was contacted, which was basically regarded as an arm’s length.
As of January 29, 2009, Garsa had absconded from parole supervision for several months, and the Board of Parole Hearings had issued a warrant for his arrest. His residence of record was his mother’s house on East San Joaquin in Tulare. On January 28, a warrant was issued that authorized Garsa’s arrest inside a residence on Magnolia Avenue in Woodlake, where parole agents believed Garsa to be living. Garsa was not there, but agents obtained information that led them to attempt to contact Garsa at a residence on Palm Avenue, which Jennings understood to be the home of Garsa’s girlfriend. Jennings did not have a search warrant for the Palm Avenue house, and it was not Garsa’s residence of record.
Jennings referred to this as a “Stago” warrant that allowed agents to enter a residence to look for the individual who had the warrant for his or her arrest. The People suggest, and we agree, that Jennings was probably referring to a “Steagald” warrant, i.e., a warrant issued to comply with Steagald v. United States (1981) 451 U.S. 204 (Steagald).
At the Palm residence, Jennings opened the security screen on the front door, then knocked on the wooden door and announced the officers’ presence. The wooden door swung open. Jennings again announced the officers’ presence, and Garsa stuck his head out from a bedroom located on the northeast side of the very small residence. From the threshold, while still outside the residence, Jennings ordered Garsa to walk toward him. Garsa, who was carrying a cell phone, came about halfway into the living room, whereupon Jennings advised him to stop, turn around, and put his hands behind his back. Jennings then went inside and placed him in restraints. Garsa was the only person Jennings saw inside the residence at the time.
Jennings went into the bedroom Garsa had exited. Inside were numerous items of Aztec artwork that Jennings recognized from Garsa’s previous residences, as well as items of clothing and ball caps that Jennings routinely saw Garsa wear and that Jennings had observed in Garsa’s bedroom when he lived with his mother. There was a photograph of Garsa and a woman, and a jewelry box that Jennings did not recognize from Garsa’s previous residence. Based on the presence of the artwork and clothing, Jennings concluded that Garsa had been at this location for some time. Jennings did not ask Garsa for consent to search. Based on policy, his contacting Garsa in the residence and seeing him come from that bedroom was sufficient.
Woodlake Police Detective James Guy was present at the Palm residence, assisting parole agents and the Visalia Police Department in conducting a parole search. After agents yelled at Garsa to get on the ground, three went inside and detained him. Once they brought him out, he was placed in a patrol car. For officer safety reasons, agents then went inside to make sure nobody else was home. They found a small child in the second bedroom. Once they came back out, Guy asked Garsa to sign a consent-to-search form, which Garsa did. Officers then went back inside and started searching the residence. In the bottom compartment of the jewelry box in the bedroom, they found small bindles of methamphetamine. Also found were a pay-owe sheet, currency in the amount of $110, and two live rounds of ammunition. Guy, who had training and experience with regard to drug sales, formed the opinion that the methamphetamine was possessed for sale.
Guy subsequently contacted Delgadillo at Woodlake Park. She wanted to know what was going on in her residence with respect to Garsa. When Guy informed her about the narcotics that had been found and asked to whom they belonged, Delgadillo asked whether, if she took the blame for the drugs, there would be fewer charges against Garsa. Guy informed her that he was not in a position to make any type of deals and that he would investigate to whom they really belonged, whereupon Delgadillo walked away.
At the conclusion of the suppression hearing, the magistrate found, with respect to Garsa, that there was “more than sufficient reason” for the officers to believe the residence was shared by Garsa and Delgadillo, and Jennings was “lawfully in a position to see” Garsa, “a wanted absconder from parole, ” inside the residence. The magistrate concluded there was a lawful basis for officers to go into the house and seize Garsa, and that there were exigent circumstances to make sure there was no one else in the home who might pose a danger while the officers were lawfully engaging in their duties. With respect to Delgadillo, the magistrate found there was strong reason to believe she shared the property with Garsa, and he, as a co-occupant, gave consent to search. Accordingly, the suppression motion was denied.
The preliminary hearing transcript shows the magistrate stated, “there’s evidence he was on parole for a 211, so I’m not going to cite that.” We assume the magistrate actually said there was no evidence Garsa was on parole for a 211, since, although the complaint alleged that Garsa had a prior conviction under section 211, no actual evidence was presented with respect to the offense for which he was on parole.
At the subsequent hearing on the renewed motion, the court found insufficient reason to override the magistrate’s ruling and findings of fact. Accordingly, it denied the motions to suppress (§ 1538.5) and to dismiss (§ 995).
In analyzing the issues before us, we stress that we are concerned with the evidence and lower court’s ruling vis-à-vis Delgadillo, not Garsa. As Garsa was on parole but Delgadillo was not, the two had markedly different expectations of privacy and rights. (See People v. Robles (2000) 23 Cal.4th 789, 798; Perez v. Simmons (9th Cir. 1989) 884 F.2d 1136, 1140-1141, opn. amended on other points at 900 F.2d 213.) Thus, we express no opinion concerning whether, were Garsa before us on appeal, he would be entitled to suppression of any evidence. (See, e.g., People v. Watkins (1994) 26 Cal.App.4th 19, 29-30.)
Where, as here, a motion to suppress evidence is submitted to the superior court on the preliminary hearing transcript (see § 1538.5, subd. (i)), “‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.]” (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.) “‘“Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law.”’ [Citation.]” (People v. Fisher (1995) 38 Cal.App.4th 338, 341-342.) Because “[t]he constitutional precept of ‘reasonableness’ as to searches and seizures is not a ‘fact’ which can be ‘found’ or not found in any given case, ” but rather is a standard to be applied to the facts (People v. Manning (1973) 33 Cal.App.3d 586, 599), “‘[w]e exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]’ [Citation.] We affirm the trial court’s ruling if correct under any legal theory. [Citation.]” (People v. Hua, supra, 158 Cal.App.4th at p. 1033.) In light of the distinct roles assigned to the magistrate and the superior court, these rules continue to apply following unification of the municipal and superior courts. (See People v. Garrido (2005) 127 Cal.App.4th 359, 364.)
“The right of the people to be secure in their … houses … against unreasonable searches and seizures, shall not be violated.…” (U.S. Const., 4th Amend.) “That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ [Citation.]” (Payton v. New York (1980) 445 U.S. 573, 589-590 (Payton).) Accordingly, a warrantless entry by police into a residence is presumptively unreasonable and therefore unlawful, whether the entry is made to search for evidence or to seize a person. (People v. Williams (1988) 45 Cal.3d 1268, 1297, abrogated on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 560-561.) “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (Payton, supra, at p. 590.)
In the present case, officers possessed a warrant for Garsa’s arrest. In Payton, the United States Supreme Court held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Payton, supra, 445 U.S. at p. 603, italics added.) Here, although officers certainly had reason to believe Garsa was inside once they saw him when the door swung open, insofar as the record shows, they had no reason to believe, prior to their entry into the house, that the house was one in which Garsa was living. The reasonableness of an officer’s entry is judged upon the facts available to him or her at the time he or she entered. (See People v. McDowell (1988) 46 Cal.3d 551, 563.)
At the preliminary hearing, Jennings testified that when officers served the search warrant on the Magnolia residence, they were not able to make contact with Garsa, but “were able to obtain the residence at which he was living on the other side of town.” The magistrate’s evidentiary rulings precluded Garsa and Delgadillo from clarifying what information was obtained. As Jennings subsequently testified that the Palm residence was not Garsa’s residence of record as far as the parole authorities were concerned, and that it was only when he entered the bedroom and saw items of Garsa’s artwork and clothing that he began to “formulate” that Garsa had been there for some time, we conclude that the record does not establish the officers obtained information from the Magnolia residents that led them to believe Garsa was actually living at Delgadillo’s house on Palm, as opposed to being directed to the Palm home of his girlfriend as a place they might make contact with him.
In Steagald, supra, the United States Supreme Court held that Payton’s analysis was “plainly inapplicable when the police seek to use an arrest warrant as legal authority to enter the home of a third party to conduct a search.” (Steagald, supra, 451 U.S. at p. 214, fn. 7.) The court reasoned that while an arrest warrant for a particular individual may protect that individual from an unreasonable seizure, it does nothing to protect the interest of a third-party homeowner, in whose home officers seek to search for the subject of the arrest warrant, in being free from an unreasonable search of his or her home. (Id. at pp. 213, 216.) The court concluded: “Because the arrest warrant for [the individual] addressed only the former interest, the search of [the defendant’s] home was no more reasonable from [the defendant’s] perspective than it would have been if conducted in the absence of any warrant.” (Id. at p. 216.) Thus, in order to legally search for the subject of an arrest warrant in the home of a third party, officers must obtain a search warrant absent exigent circumstances or consent. (Id. at pp. 205-206.)
Pursuant to Steagald, absent exigent circumstances or consent, Delgadillo’s Fourth Amendment rights were violated when officers searched her home following their arrest of Garsa pursuant to an arrest warrant, as they lacked a search warrant for the Palm premises. (See People v. Dyke (1990) 224 Cal.App.3d 648, 658; People v. Mitchell (1990) 222 Cal.App.3d 1306, 1312.) The People implicitly concede as much, and seek to justify the search of Delgadillo’s home based on the “officer safety exigency.”
Where exigent circumstances exist, “the failure to comply with the warrant requirement is justified. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “[E]xceptions to the warrant requirement [under the exigent-circumstance rubric] are ‘few in number and carefully delineated, ’” however (Welsh v. Wisconsin (1984) 466 U.S. 740, 749; People v. Williams, supra, 45 Cal.3d at p. 1298), and the People bear a heavy burden when attempting to prove exigent circumstances that would justify a warrantless search or arrest (Welsh, supra, at pp. 749-750; People v. Brown (1989) 210 Cal.App.3d 849, 855).
“‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) “The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors.…” (People v. Celis (2004) 33 Cal.4th 667, 676 (Celis), citing Minnesota v. Olson (1990) 495 U.S. 91, 100.) Although “there is no ready litmus test for determining whether such circumstances exist” (People v.Ramey, supra, at p. 276), relevant factors include the gravity of the offense involved and particularly whether it is a crime of violence, whether the suspect is reasonably believed to be armed, whether there is a clear showing of probable cause, whether there is strong reason to believe that the suspect is in the premises being entered, the likelihood that the suspect will escape if not swiftly apprehended, and whether the unconsensual entry is made peaceably (People v. Williams (1989) 48 Cal.3d 1112, 1138-1139; see Welsh v. Wisconsin, supra, 466 U.S. at p. 751; Dorman v. United States (D.C. Cir. 1970) 435 F.2d 385, 392-393).
“[I]n each case the claim of an extraordinary situation must be measured by the facts known to the officers.” (People v. Ramey, supra, 16 Cal.3d at p. 276; accord, People v. Panah (2005) 35 Cal.4th 395, 465.) “Thus the exigent circumstances test involves a two-step inquiry: first, factual questions as to what the officer knew or believed and what action he took in response; second, a legal question whether that action was reasonable under the circumstances. [Citation.]” (People v. Duncan (1986) 42 Cal.3d 91, 97.) “‘As a general rule, the reasonableness of an officer’s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or “hunches, ” but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’ [Citation.]” (Id. at pp. 97-98, italics added.) The standard is an objective one: “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ [Citation.] The officer’s subjective motivation is irrelevant. [Citations.]” (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404, italics omitted; see also People v. Ortiz (1995) 32 Cal.App.4th 286, 292 [facts known to officer must demonstrate his or her belief in existence of exigent circumstances was objectively reasonable].)
In the present case, absolutely no evidence was presented with respect to why Jennings concluded it was necessary to enter Delgadillo’s house to detain and arrest Garsa, or search her house following the arrest. The only evidence relevant to this point was that he knew Garsa was inside, had absconded from parole, and was holding a cell phone. Insofar as the evidence shows, Garsa was obeying orders to walk toward the officers at the time the entry was made. There was no evidence that he failed to comply when told to put down the cell phone, or that he hesitated in walking toward the front door or otherwise acted as if he might flee. There was no evidence that Garsa was on parole for a violent offense or that officers knew him to have committed violent acts in the past or considered him potentially armed and dangerous. (Compare People v. Manderscheid (2002) 99 Cal.App.4th 355, 357, 361-362.) The People point to cases recognizing that police work is often dangerous, but if that generalized fact were sufficient justification for the entry here, exigent circumstances would exist in virtually every situation in which officers seek to arrest a parole absconder. The exigent circumstance exception would swallow the Fourth Amendment rule requiring a warrant.
The People suggest that Jennings, while standing outside the home, probably could not see the areas immediately to the sides of the front door, and that these areas easily could have contained a weapon that Garsa could have grabbed as he walked toward the officers. On the record before us, this is sheer speculation. Jennings never testified to any concerns about Garsa potentially gaining access to a weapon or becoming violent, or to any fear for his own safety or that of other officers or the public. Indeed, he was never even asked why he stepped inside.
The United States Supreme Court has required that, in order to justify “‘official intrusion upon the constitutionally protected interests of the private citizen, ’” the officer must be able to point to specific and articulable facts which, when considered together with the rational inferences to be drawn therefrom, reasonably warrant the intrusion. (Terry v. Ohio (1968) 392 U.S. 1, 21; cf. Sibron v. New York (1968) 392 U.S. 40, 64 & fn. 21.) Even in cases in which there was no particular reason to suspect foul play from the specific individual but the high court still balanced possible danger to the officer(s) against the intrusion into the individual’s personal liberty, an officer safety rationale was advanced in the lower court. (See, e.g., Maryland v. Wilson (1997) 519 U.S. 408, 413-415 [passenger may, as matter of course, be ordered out of automobile when driver stopped for traffic violation]; Michigan v. Summers (1981) 452 U.S. 692, 701-705 [search warrant carries with it limited authority to detain occupants of premises while search is conducted]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 109-111 [driver may, as matter of course, be ordered out of automobile where detained for traffic violation].) The prosecutor here made no such argument. Moreover, in none of the foregoing cases has a general officer safety concern been held to constitute an exigent circumstance or to justify or excuse an otherwise unlawful entry into a home.
As the California Supreme Court has stated: “Unquestionably, the work of a police officer in the field is often fraught with danger. At any given moment, a seemingly safe encounter or confrontation with a citizen can suddenly turn into an armed and deadly attack on the officer. Society’s interest in protecting police officers must, however, be balanced against the constitutionally protected interest of citizens to be free of unreasonable searches and seizures. In considering both interests, the United States Supreme Court has articulated certain legal rules, allowing, for instance, a warrantless entry into a home when exigent circumstances exist, or permitting a protective sweep of areas of a home where persons in hiding may pose a danger to officer safety.… [W]hen the entry of a house for officer safety is based on exigent circumstances, the officers must have probable cause to believe that a dangerous person will be found inside. [Citation.]” (Celis, supra, 33 Cal.4th at p. 680, italics added.) We decline to hold that the mere fact an individual previously convicted of a felony and sentenced to prison has absconded from parole supervision furnishes probable cause to believe he or she is dangerous.
The People rely on People v. Wilson (1997) 59 Cal.App.4th 1053 (Wilson), in which a police officer’s warrantless entry of a motel room was upheld. Wilson does not assist the People, however, because there the evidence showed that when the officer knocked on the door and it swung open, he could see the defendant. She was reaching under one of the beds, and the officer could not see her shoulder and arm. The officer explained that he stepped into the room because he could not see her hands and wanted to get a position of advantage in case she came out with a weapon. He further testified that since he was there to investigate a vehicle registration violation, he had no idea why her hands were under the bed. He thought there might be a weapon, and opened the door farther to see if there was anyone present who could harm him. (Id. at p. 1057.) In upholding the entry, the appellate court noted that the door to the room was not completely closed, the officer only took a single step inside when he saw the defendant reaching under the bed, no seizure of the defendant’s person occurred at the time of the intrusion, the defendant was not held at gunpoint, and the intrusion was not observed by others. (Id. at p. 1059.) It found the officer’s conduct in taking a step over the threshold so that he could more clearly see the defendant, and his assessment that such a limited intrusion was necessary given the risk the defendant was arming herself, to be objectively reasonable. (Id. at p. 1061.) The court concluded: “In present case, there were specific articulable facts relating to a potential danger which, when viewed objectively, warranted [the officer’s] stepping into the room to be better prepared in the event defendant produced a weapon.” (Id. at p. 1062, italics added.)
In Wilson, there were facts; here, there is only speculation to be balanced against the “weighty” right of “presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government” (Steagald, supra, 451 U.S. at p. 222). To the extent the magistrate made factual findings on this point, they are not supported by substantial evidence. (Contrast People v. Higgins (1994) 26 Cal.App.4th 247, 251; People v. Gordon (1984) 156 Cal.App.3d 74, 76-77.)
As the entry cannot be justified by exigent circumstances, we consider whether the evidence established any other justification. We conclude it did not.
In the present case, Garsa agreed to be subject to search in order to obtain parole. (§ 3067, subds. (a) & (b); see People v. Baker (2008) 164 Cal.App.4th 1152, 1158.) According to Jennings, this included a search of his residence of record. The Palm residence was not his residence of record, however. “Generally, a condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides, even if others also reside there. But they have to be reasonably sure that they are at the right house. Nothing in the law justifies the entry into and search of a third person’s house to search for the parolee. ‘The Fourth Amendment’s protection against unreasonable searches in a person’s home is not diminished by the mere presence of a guest in the home.’ [Citation.] In other words, the parole condition indicates only the parolee’s acquiescence to a warrantless search of his own residence. Absent this provision and the existence of exigent circumstances, officers must obtain consent or a warrant to enter a house. [Citation.]” (Motley v. Parks (9th Cir. 2005) 432 F.3d 1072, 1079.) Here, officers had no reason to believe Garsa resided at the Palm house – as opposed to merely being a guest at his girlfriend’s residence – until after the unlawful entry. “An initial [entry and] seizure cannot be justified by information obtained as a result of that [entry and] seizure. [Citation.]” (United States v. Delgadillo-Velasquez (9th Cir. 1988) 856 F.2d 1292, 1298.)
Although decisions of lower federal courts are not binding on us, they are persuasive and entitled to great weight. (People v. Bradley (1969) 1 Cal.3d 80, 86.)
Guy also obtained a signed consent from Garsa after officers entered the house and removed Garsa from it. “[A] consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched” (People v. Woods (1999) 21 Cal.4th 668, 675); in addition, a search may be valid if the officer had an objectively reasonable belief that the person consenting to the search had authority to do so, even if he or she in fact did not (Illinois v. Rodriguez (1990) 497 U.S. 177, 186; People v. Jenkins (2000) 22 Cal.4th 900, 974). “[D]etermination of consent … must ‘be judged against an objective standard: would the facts available to the officer at the moment … “warrant a man of reasonable caution in the belief”’ that the consenting party had authority over the premises? [Citation.]” (Illinois v. Rodriguez, supra, at p. 188.) Again, however, officers had no reason to believe Garsa had authority to consent, either because he resided at the house or because, for instance, Delgadillo was absent and he had “the run of” the premises (People v. Ledesma (2006) 39 Cal.4th 641, 703), until after the illegal entry. Under the circumstances, we cannot conclude Garsa’s consent was an independent intervening act that attenuated the taint of the illegal entry. (See People v. Ormonde (2006) 143 Cal.App.4th 282, 295.)
The People say Jennings entered the bedroom out of which Garsa had come, as part of a protective sweep. Use of a protective sweep as justification for conduct that otherwise violates the Fourth Amendment fails for the same reason as the exigent circumstance exception fails to justify the entry here: The evidence presented at the preliminary hearing is insufficient to establish what is needed to make such an action constitutionally permitted.
As the United States Supreme Court has explained, “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Maryland v. Buie (1990) 494 U.S. 325, 327.) In Buie, an individual was arrested in his home pursuant to an arrest warrant. In the course of a warrantless protective sweep of the basement, an officer saw evidence in plain view. (Id. at pp. 327, 330.) The high court held that a warrant was not required (id. at p. 334), and further held “that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, … 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.” (Ibid., italics added.) Thus, while a protective sweep for officer safety does not, unlike a warrantless entry into a house based on exigent circumstances such as the risk of danger to police officers or others on the scene, require probable cause to believe that a dangerous person will be found inside, there must be at least “a reasonable suspicion that the area to be swept harbors a dangerous person. [Citation.] Like the limited patdown for weapons authorized by Terry v. Ohio, supra, 392 U.S. 1, 21, 27, a protective sweep may not be based on ‘a mere “inchoate and unparticularized suspicion or ‘hunch.’”’ [Citation.]” (Celis, supra, 33 Cal.4th at p. 678.)
In Celis, officers detained the defendant in the backyard, and then entered his house. When they entered, they had no knowledge that anyone was present in the house, the record contained no information that the defendant or his accomplice was armed, and the officers were unaware at the time that contraband was present. Under the circumstances, the California Supreme Court held, the facts known to the officers before they performed the protective sweep fell short of the requisite articulable facts, considered together with rational inferences drawn therefrom, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbored a person posing a danger to officer safety. (Celis, supra, 33 Cal.4th at pp. 679-680.) The record in the present case is similarly devoid of any articulable facts suggesting officers reasonably believed someone who might be dangerous was present.
In light of our conclusion that Delgadillo’s Fourth Amendment rights were violated when officers entered the house, we need not decide whether their search of the jewelry box would otherwise have been permissible pursuant either to Garsa’s consent or the search term of his parole. (Compare People v. Smith (2002) 95 Cal.App.4th 912, 919-920 and People v. Boyd (1990) 224 Cal.App.3d 736, 750-751 with People v. Veronica (1980) 107 Cal.App.3d 906, 908-909.) The items found inside the house must be suppressed. (See People v. Williams, supra, 45 Cal.3d at pp. 1299-1300.)
So too must Delgadillo’s statements to Detective Guy. Even when made knowingly, voluntarily, and intelligently, a statement must be suppressed if it is the direct product of a Fourth Amendment violation. (People v. Boyer (1989) 48 Cal.3d 247, 267, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) To determine whether Delgadillo’s statements must be suppressed, “we ask ‘“‘whether, granting establishment of the primary illegality, the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” [Citations.] The degree of attenuation that suffices to dissipate the taint “requires at least an intervening independent act by the defendant or a third party” to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality. [Citations.]’ [Citation.]” (People v. Medina (2003) 110 Cal.App.4th 171, 178.) The record here does not show any break in the causal chain.
We sympathize with the officers in this case and do not mean to suggest they entered or searched for an improper purpose, or that they did not honestly believe they had valid safety concerns. We cannot manufacture evidence where none exists, however, and the fact of the matter is that no testimony was elicited on the issue at the suppression hearing. While we suspect the officers may have acted properly when they entered the premises, the record unfortunately contains no evidence from which we can so conclude.
DISPOSITION
The judgment is reversed and the case is remanded to the superior court with directions to permit Delgadillo to withdraw her guilty plea, to vacate its order denying the motion to suppress (§ 1538.5) and to dismiss (§ 995), to enter new orders granting said motions, and to undertake any other necessary proceedings in accordance with applicable law.
WE CONCUR: Wiseman, Acting P.J., Cornell, J.
The People acknowledge that the search at issue here took place in Delgadillo’s home, and thus implicitly concede that she has a legitimate expectation of privacy in the premises and so may challenge that search and the resultant seizure. (See People v. Camacho (2000) 23 Cal.4th 824, 830-831.)