Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-523173
Richman, J.
A “protective sweep” is a limited warrantless entry into a residence by law enforcement officers that is permissible if the officers have a reasonable belief that someone in the building poses a danger to their safety. The law governing such entries comes from Maryland v. Buie (1990) 494 U.S. 325 (Buie), and People v. Celis (2004) 33 Cal.4th 667 (Celis). Here, the trial court concluded that after a burglary suspect left his house in response to a demand by police officers and was then handcuffed, those officers were not authorized to enter and conduct a protective sweep of the suspect’s residence because of an abstract belief that someone may have remained behind in the residence and might gain access to a weapon believed to be within the residence. Exercising our independent review, we agree with the trial court’s decision that the predicate for a protective sweep—the reasonable suspicion that someone was still inside the house and constituted a clear and present danger—was not shown. We therefore affirm the subsequent order dismissing the charges against the suspect because all evidence supporting those charges was obtained due to the improper entry and search.
BACKGROUND
The evidence submitted in connection with the suppression motion was without conflict save as to inconsequential details. The record shows the following:
In October 2007, defendant Trown Green was living in a single-story three-bedroom residence as the agent of the absentee owner. Although the owner expected defendant to keep trespassers away from the property, it appears that defendant did precisely the opposite, and extended his hospitality to a number of other individuals who were living in the house. Two of the individuals granted defendant’s permission to live there were Richard Lopes and his girl friend, Therese Wharton.
About a year earlier, the owner—who is a retired deputy sheriff—found Lopes smoking marijuana in a storage room and ordered him to leave and never return. Clearly, defendant paid no heed to this command.
On October 18, Sonoma County Deputy Sheriff David Tait arrested Lopes for illegal possession of a firearm and methamphetamine. On October 23, after he had been released from custody, Lopes told Tait that, according to Wharton, in Tait’s absence defendant had “stolen property . . . mostly consisting of tools” from the bedroom shared by Lopes and Wharton. Lopes also informed Tait that “he suspected there might be firearms in the residence.” Tait testified that Lopes “had stressed . . . that Mr. Green had past assaults with a firearm and . . . he had heard that he had also been in possession of a sawed-off shotgun and that he was carrying that for his protection.” Lopes also reported “that he had received information that Mr. Green two nights prior had been assaulted by what they believed was an associate of a bail bondsman and that Mr. Green had been hit in the head with a hammer during that altercation.” Tait knew the residence because he had been there three or four times, officially.
It appears that Lopes, like defendant, was a past-convicted felon and therefore prohibited from possessing firearms by Penal Code section 12021.
Although its is not substantiated by evidence, both parties in their respective papers appear to have accepted that defendant may have been motivated in part by the belief that Lopes had told Tait that the weapon found in his possession actually belonged to defendant. Defendant termed his motivation “payback”; the prosecution called it “retribution.” As shown by the charges eventually filed against defendant, he was forbidden to possess firearms, so what Lopes told Tait threatened defendant with a separate and independent basis for criminal liability.
Treating Lopes’s report as necessitating “a burglary investigation” directed at defendant, and because Lopes apparently requested a police presence to “keep the peace” when he tried to retrieve his property, Tait went to the residence with three other officers. Several persons Tait took to be residents were standing outside the house. Shortly after 4 p.m., the officers were ready. Tait described what happened: “The first thing we did due to prior contacts at the house, knowing that there’s numerous people there, knowing that there’s weapons in the past, knowing that there’s drugs in the past, we requested verbally everybody to step out of the house.” Tait testified that “our main focus was to have everybody step outside, make sure we know who we’re dealing with and conduct a protective sweep of the house, make sure all occupants of the house were . . . out and then we can go forward with our investigation. . . .”
It appears that the Sonoma Sheriff’s Office has a practice known as “civil standby.” While there is nothing like an explicit definition of this term in the record, the familiarity with the practice by both sides and the trial court reflects that it is established and accepted. To judge from the few fleeting references to it in the record, it appears that “civil standby” is the sheriff’s practice to have a uniformed officer (or officers) present to preserve calm in situations that are not criminal in nature but which entail tension and possible violence. If Lopes was proposing to march into defendant’s house and rummage around for his stolen tools, it might be expected that defendant would take exception. The fact that four deputies were present was apparently to prevent matters from escalating to the point where the officers would have to intervene. Although in its opposition to defendant’s motion the prosecution took the position that entry into the residence “was justified as a civil standby,” no such argument is made in the People’s opening brief. We allude to this primarily because the concept figured prominently in the trial court’s ruling.
Tait further testified as to the “specific reasons” for a protective sweep: “Our specific need was the ability and past knowledge, knowing that there are numerous people there at the house, numerous people with criminal records, and having direct knowledge of weapons and drugs being taken out of that house as well as the individuals being arrested.” Tait was concerned that other persons might still be inside. As he explained: “There was also additional concern [that] people could be hiding. I do recall—I think it was approximately within a week before . . . that there was a female subject who was wanted who was hiding in the attic that required our canine services for a safe apprehension of that resident as well.”
Ultimately, nine persons, including defendant, were standing in front of the house. The deputies directed them to congregate in one area of the driveway. The nine people complied. Defendant, who had a gash on his head, was detained in handcuffs. Tait entered the residence and performed a protective sweep. In one of the bedrooms on a nightstand he found two “crank pipes,” shotgun shells, and “a wallet . . . with indicia and California I.D. belonging to Trown Green.” Underneath the bed Tait discovered a loaded sawed-off shotgun.
Defendant was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436. He waived the protection of those rights and agreed to speak with Tait. When Tait asked if there were any other firearms in the house, defendant replied that he believed there were “three firearms behind the refrigerator in the kitchen.” Tait entered the house and found a bolt-action rifle behind the refrigerator. When asked by Tait whether he had taken any property belonging to Lopes, defendant replied that he had, in the course of “performing an eviction.” No other person was found in the house.
Defendant was charged with three felonies—one count of first degree burglary (Pen. Code, § 459) and two counts of being a past-convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1))—and two misdemeanors—possessing ammunition forbidden to him as a past-convicted felon (Pen. Code, § 12316, subd. (b)(1)) and possessing drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). It was also alleged that defendant had a prior conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) that qualified as a serious felony and a strike for purposes of Penal Code sections 667 and 1170.12.
Defendant moved to suppress all of the evidence found inside the house on the ground that there was no basis for Tait to perform a warrantless entry and search. The entry and search could not be justified under the “protective sweep” exception to the warrant requirement because defendant “was passively lying handcuffed in the dirt” and the officers “had the situation well under control and had no reason to believe that anyone else might be in the house.”
In their opposition to the motion, the prosecution argued that “the protective sweep . . . was a legitimate means of protecting the safety of both the officers and Mr. Lopes.” The prosecution reasoned that “[t]he entry was justified in order to prevent violence to Mr. Lopes as he retrieved his belongings.” The house had a “transient” and “criminal population,” including defendant and Lopes. “The officers had a report that there was a shotgun underneath Defendant’s bed. Thus, there was a reasonable suspicion that there was another person in the house, and that that person posed a danger to the officers.”
After hearing argument, the court took the matter under submission and stated its ruling:
“The court did some additional research including rereading Maryland v. Buie as well as People v. Celis that’s 33 Cal.4th 667. And also . . . California Criminal Defense Practice Volume I section 11-63 in which it is stated as follows:
“ ‘As an incident to the arrest, the police are further permitted as a precautionary matter and without probable cause or reasonable suspicion to conduct a protective sweep of the premises if there are articulable facts and rational[] inferences to warrant a reasonable belief that another individual is present who poses a danger to those on the arrest scene.’ And that of course is . . . the principle of the Buie case, 494 U.S. 325, pages 333 to 337. The practice book goes on to say: ‘It is unclear whether police may make such a protective sweep of a residence, however, if the police have detained a person outside as opposed to inside a residence if such a sweep is allowed however at the very least the police must have reasonable suspicion to believe that another person is inside the home who presents a danger to the officers.’ And that’s the Celis case, 33 Cal.4th 667 . . . . And the court thought about this in two basic concepts, that of police practice: Number one protective sweep, number two a civil standby. And the court in thinking about it, was concerned about the scope of the civil standby. First of all, in light of the fact that number one, Mr. Lopes, the individual who had initially made the complaint sought the assistance of the police to go to the house to assist retrieval of . . . his things, his goods from somewhere on a civil standby basis under the ostensible demonstration that he had some right to be there. And while there was some equivocation about that, and certainly a direct conflict in the evidence at the hearing, Mr. Lopes obviously had been at that residence at some previous time.
“But then what the court focused in on was the scope of the civil standby, leaving aside for the moment the concept of the protective sweep. And in looking at that, I realized that my general sense of a civil standby involved police literally standing by, being there to make sure that a civil status was maintained, that the retrieval of certain items or the entry into the house for some other legitimate legal purpose was executed.
“And in this case what occurred was . . . beyond the scope of any civil standby I’d ever heard of in the sense that all nine residents of the home were brought outside. Mr. Green, as I understand it, I reviewed the transcript, was actually handcuffed so any danger that he might have presented would certainly be mitigated if not to the ultimate degree, the penultimate degree. He’s outside and he’s handcuffed and he doesn’t have anything to do with presenting a danger to either the police or Mr. Lopes who is ostensibly there to retrieve his property.
“And then there’s the protective sweep. And there’s the rule that there had to be a basis that someone else was inside and that that someone else actually presented a danger. Not might present a danger, but that there was some articulable basis. And in looking at Deputy Tait’s testimony, I found no such basis. And given that the court’s overall analysis that, number one, the civil standby went way beyond the scope of any civil standby I’ve ever heard of, made it possible in some certain circumstances and there were no cases that we were able to find on it . . . that is an abuse of power, but the [protective] sweep lacked the necessary elements that would have given the police to be where they were and to see the things that they saw and to seize the thing[s] that they seized. And based on all of that the court grants the motion at this time and does suppress the fruits of that search and that sweep, which included the contraband and the weapon[s] and the ammunition that Mr. Green had.”
The court then dismissed the charges, whereupon the People filed a timely notice of appeal from the dismissal order. (Pen. Code, § 1238, subd. (a)(7).)
DISCUSSION
The familiar three-step analysis is ordinarily used for reviewing rulings on suppression motions: “ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The trial court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominately one of law, . . . is also subject to independent review.” ’ ” [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 255.)
Our task here is simplified because there was no controversy involving any issue of fact, and there is no disagreement as to the governing rule of law. The only issue is the third step: whether that rule of law, as applied to the undisputed historical facts, was or was not violated. This is an issue for our independent review. (See People v. Thompson (2006) 38 Cal.4th 811, 818.)
This appeal has evoked a profusion of florid and grandiloquent expressions by counsel in their briefs. The People insist that “streams of police intelligence coalesced” with a “concatenation of concerns” when the deputies arrived at the house, thereby justifying the sweep. According to defendant, he was the victim of a search undertaken as a “constitutionally offensive” “subterfuge aimed at gaining entry into his home.” Defendant insists that “[t]o condone the officers’ conduct in this case would obliterate centuries of American law . . . and sanction an unheard of end-run around the warrant requirement” and would “unmoor it from its rationale and eviscerate the warrant requirement in its most scared place of application—the home.” This argument the People denounce as “a groundless canard.”
We view this appeal as presenting but a single issue—whether that the articulated justification for the deputies’ sweep into defendant’s house was sufficient under Buie and Celis. On our on independent review we conclude it was not.
Various arguments made in the trial court have been abandoned for this appeal.
The salient facts and analysis of Buie were stated by our Supreme Court in Celis:
“In Buie, the defendant and another man robbed a restaurant. One of the robbers was wearing a red jogging suit. Police obtained an arrest warrant for the defendant and executed it at his house. There, one officer shouted into the basement for everyone to come up. When the defendant did so, he was promptly arrested. Another officer then entered the basement ‘ “in case there was someone else” down there.’ (Buie, supra, 494 U.S. at p. 328.) In plain view the officer saw a red jogging suit, which he seized. (Ibid.) Charged with the restaurant robbery, the defendant moved to suppress the jogging suit. The trial court denied the motion. That ruling was overturned by the Maryland Court of Appeals, that state’s highest tribunal, which invalidated the search because the officers lacked probable cause to search the basement. (Id. at p. 329.) That decision, in turn, was vacated by the United States Supreme Court, which concluded that the probable cause standard did not apply to a ‘protective sweep.’ (Id. at p. 327.) The court explained that as an incident to an 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 launched.’ . . . But it stressed that beyond that, an inspection undertaken outside the immediate area of the arrest must be supported by ‘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 high court then remanded the case to the Maryland Court of Appeals to reconsider whether the prosecution’s evidence at the suppression hearing was sufficient to justify the officer’s entry into the basement as a ‘protective sweep’ under the reasonable suspicion standard articulated in Buie. (Id. at p. 337.)
“In authorizing the protective sweep of the defendant’s house in Buie, supra, 494 U.S. 325, the high court drew on principles set out in Terry v. Ohio [(1968)] 392 U.S. 1. That decision allowed officers, incident to an on-the-street detention, to conduct ‘a limited patdown for weapons where a reasonably prudent officer would be warranted in the belief, based on “specific and articulable facts,” and not on a mere “inchoate and unparticularized suspicion or ‘hunch,’ ” “that he is dealing with an armed and dangerous individual.” ’ (Buie, supra, at p. 332, quoting Terry v. Ohio, supra, at pp. 21, 27.) Buie recognized that with ‘an arrest in the home,’ there existed ‘an analogous interest of the 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.’ (Id. at p. 333.)
“From the high court’s decision in Buie, supra, 494 U.S. 325, we draw these conclusions: A protective sweep of a house for officer safety as described in Buie, does not require probable cause to believe there is someone posing a danger to the officers in the area to be swept. (Buie, supra, at p. 327.) A Buie sweep is unlike warrantless entry into a house based on exigent circumstances (one of which concerns the risk of danger to police officers or others on the scene); such an entry into a home must be supported by probable cause to believe that a dangerous person will be found inside. [Citation.] A protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person. (Buie, supra, at p. 327.) 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.’ ” ’ (Buie, supra, at p. 332.)” (Celis, supra, 33 Cal.4th 667, 677-678.)
The facts of Celis are no less instructive. The defendant there was suspected of transporting large amounts of drugs in oversized tires. The defendant was observed taking one such tire, which was deflated, from a tire shop into his house, along with an air pressurizing tank. “Some 40 minutes later, defendant came through the back door of his house, rolling a large inflated truck tire toward the alley. It appeared to Detective Strain to be the same tire defendant had brought back from the tire shop. About the same time Ordaz [another suspect] arrived at the alley driving a full-sized green pickup truck. Suspecting that the tire defendant was rolling toward the alley contained either money or narcotics, Detective Strain pulled out his gun and ordered defendant and Ordaz to stop. Defendant was handcuffed and made to sit down against the wall of his house. Because Detective Strain had noticed that defendant’s wife and ‘possibly a male juvenile’ lived with him, Strain together with other officers entered the house to determine if there was anyone inside who might endanger their safety. It took less than two minutes to walk through the 500-square foot house. The officers did not find anyone inside, but did see a wooden box large enough to conceal a person. Inside the box were several uniformly sized, wrapped packages . . . which proved to contain 16 kilograms of cocaine. They also searched the large truck tire, which contained 25 kilograms of cocaine.” (Celis, supra, 33 Cal.4th 667, 671-673.)
The Supreme Court found that this was inadequate to justify a protective sweep: “Officer Strain testified that the officers had on April 26 and 27, 2000 conducted a surveillance of defendant's house on A Street in San Diego. During that time, the officers noted the presence of defendant’s wife and ‘possibly a male juvenile’ in the home. But when on the afternoon of April 27th the officers entered defendant’s house for a protective sweep just moments after detaining defendant in his backyard as he rolled a large truck tire toward Ordaz’s waiting truck in the alley, they had no knowledge of the presence of anyone in defendant’s house. As the trial court found, the officers ‘had not been keeping track of who was in the house’; thus, when they entered the house to conduct a protective sweep, they did so without ‘any information as to whether anyone was inside the house.’ Also, there is no indication that when stopped by the officers, either defendant or Ordaz was armed. Moreover, until defendant later consented to a search of the large truck tire he was rolling from the back door of his house toward the alley, the officers were unaware that the tire (like the similar tires found in the two Los Angeles County investigations we discussed earlier) had been cut open and then resealed to conceal cocaine. The facts known to the officers before they performed the protective sweep fell short of what Buie requires, that is, ‘articulable facts’ considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety.’ (Buie, supra, 494 U.S. at pp.327, 334.)” (Celis, supra, 33 Cal.4th 667, 679-680.)
Celis is instructive in another respect. As recited in the text, the defendant there was halted at gunpoint, handcuffed, and ordered to sit on the ground. Nevertheless, the court held that these assertions of authority did not establish as a matter of law that the defendant had been arrested, as opposed to merely detained. (Celis, supra, 33 Cal.4th 667, 673-676.) A majority of courts throughout the country have perceived no difficulty in extending the concept of a protective sweep to situations not involving an arrest, such as a detention or warrant search. (E.g., State v. Revenaugh (Idaho 1999) 992 P.2d 769, 772-773; Cotton v. State (Md. 2005) 872 A.2d 87, 90-93; Nolin v. State (Fla.Dist. Ct.App. 2006) 946 So.2d.52, 55-58, fn. 2; U.S. v. Maddox (10th Cir. 2004) 388 F.3d 1356, 1361-1363; see U.S. v. Torres-Castro (10th Cir. 2006) 470 F.3d 992, 996-997 [noting that majority of circuits have not limited Buie sweeps to arrest situations]; 2 LaFave, Search and Seizure (4th ed. 2004) § 4.10(a), pp. 739-741; 3 LaFave, supra, § 6.5(c), p. 428.) The court in Celis found it unnecessary to decide whether a protective sweep was proper following a detention effected outside a residence “because the facts known to the officers when they entered defendant’s house fell short of the reasonable suspicion standard necessary to justify a protective sweep under Buie.” (Celis, supra, 33 Cal.4th 667, 679.)
The Buie court took pains to underscore the limited nature of a protective sweep, a nature circumscribed by its purpose: “We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts 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.” (Buie, supra, 494 U.S. 325, 335-336, fn. omitted.)
Here, as in Celis, when the deputies conducted the protective sweep of the house, “they had no knowledge of the presence of anyone in defendant’s house” or “ ‘any information as to whether anyone was inside the house.’ ” (Celis, supra, 33 Cal.4th 667, 679, italics added.) Even though the people who responded to the deputies’ orders to leave the house and stand together in the driveway were described as “compliant,” they were not asked if anyone else was in the house. (See People v. Ormonde (2006) 143 Cal.App.4th 282, 287 [protective sweep not justified by officer who was “just trying to determine if there were people in the house”].) The uncontradicted evidence shows that the deputies had no positive information that one or more persons had defied the deputies’ orders and stayed in the house. (See State v. Smith (N.H. 1996) 681 A.2d 1215, 1219 [protective sweep appropriate because officers “knew . . . someone was inside and refused to come to the door after they knocked and announced their presence”]; U.S. v. Cavely (10th Cir. 2003) 318 F.3d 987, 996 [same].)
Even if the deputies knew another person remained behind in the house, the deputies had no reasonable, objective basis for believing that such a person posed a danger to them. (See Celis, supra, 33 Cal.4th 667, 679 [that officers had previously “noted the presence of defendant’s wife and ‘possibly a male juvenile’ ” insufficient to justify protective sweep]; State v. Spencer (Conn. 2004) 848 A.2d 1183, 1994, fn. 13 [“The fact that the defendant’s wife lived with him is insufficient to establish that ‘someone of danger to the [police] was in the house at that time”]; State v. Kruse (Wis.Ct.App.1993) 499 N.W.2d 185, 189 [“The mere fact that the police had reasonable information that a woman lived in the apartment with Kruse, without more, is insufficient to create a reasonable suspicion that their safety was endangered.”]; U.S. v. Carter (10 Cir. 2004) 360 F.3d 1235, 1242 [“the fact that Defendant and his friend came running out of the garage in a combative manner” did not justify protective sweep because the searching officer “had no reason to believe a third person had stayed behind, or that such a person would attack them”].)
Furthermore, the suspicion that the shotgun was in the house does not transmute to a reasonable suspicion that there was also a person in the house who intended to use it against the deputies. (See State v. Sharpe (Ohio.App. 2008) 882 N.E.2d 960, 970 [“The fact that a gun or other weapon is on the premises could give other persons an instrument to use in such an attack. But the gun or other weapon poses no danger to officers absent a person or persons who might use it to launch an attack.”].)
It is significant that, although Deputy Tait had been out to the house three or four times, and presumably one of those visits involved the arrest of Lopes for illegal firearm possession, he did not testify that any of those visits involved the actual or even threatened use of force. This undercuts the People’s argument that the house was in effect a constant object of police attention because it was a haven for drug dealing and thus an inevitable theatre for potential violence. The only explicit proof about drugs was that Lopes was arrested for possession of methamphetamine, not possession for sale. Thus, none of his previous visits gave cause to suspect an imminent ambush, certainly not when defendant and Lopes—the feared combatants it was hoped the deputies’ civil standby would avert—were outside the house, separated, and defendant was in handcuffs.
Understandably, the deputies were apprehensive about Lopes’s report that defendant had a sawed-off shotgun and “was carrying [it] for his protection.” They could also entertain concern about defendant’s combative temperament and criminal history. But those fears were laid to rest once defendant, sans shotgun, was outside the house and handcuffed. (See U.S. v. Ford (D.C. Cir. 1995) 56 F.3d 265, 269; U.S. v. Henry (D.C. Cir. 1995) 48 F.3d 1282, 1284; State v. Sharpe, supra, 882 N.E.2d 960, 970.) And the possible crime the deputies were investigating involved defendant alone. The possible violence feared was from defendant to Lopes. There was nothing in Lopes’s report which suggested that defendant had an accomplice or confederate who might hide in the house or constitute an armed menace to the deputies. (Cf. People v. Maier (1991) 226 Cal.App.3d 1670, 1675 [sweep justified when officers knew that that defendant’s modus operandi for armed robberies involved accomplices]; U.S. v. Henry, supra, at p. 1284 [“The informant had advised officers that Henry would have weapons and that Henry’s [confederates] might be with him.”]; Com. v. Crouse (Pa.Super. 1999) 729 A.2d 588, 593 [protective sweep valid after officers arrested father at front door and then heard wife yelling on second floor for son].) All that was left was the speculation articulated by Deputy Tait that other persons “could be hiding” in the house. This is not even substantial enough to count as the unparticularized hunch forbidden by Buie and Celis. (See People v. Ormonde, supra, 143 Cal.App.4th 282, 295 [that “police were genuinely apprehensive . . . based on past experience” of similar situations does not constitute justification for sweep]; State v. Spencer, supra, 848 A.2d 1183, 1195 [fact that officers had conducted “hundreds” of sweeps was not “sufficiently specific and articulable to support a reasonable belief that defendant’s apartment harbored a third party posing a danger to those on the . . . scene.”].)
In sum, the record does not show that the deputies here had an articulable and objectively reasonable apprehension that their safety was at risk from some unidentified person who still lurked in the residence and intended them harm. And an inchoate suspicion is not enough: “Lack of information cannot provide an articulable basis upon which to justify a protective sweep. . . . ‘No information’ cannot be an articulable basis for a sweep that requires information to justify it in the first place.” (U.S. v. Colbert (6th Cir. 1996) 76 F.3d 773, 778; accord, State v. Spencer, supra, 848 A.2d 1183, 1194-1995; State v. Sharpe, supra, 882 N.E.2d 960, 970.)
“The generalized possibility that an unknown, armed person may be lurking is not . . . an articulable fact sufficient to justify a protective sweep.” (State v. Spencer, supra, 848 A.2d 1183, 1196.) Although the People vigorously argue that the deputies “possessed information concerning the house itself and its history, as well as that of defendant and his criminal history,” these efforts are unavailing. Tait’s testimony on this point was quoted in full, in order to establish that the “information” he had at the time was hardly precise, or articulable, or factual.
The People also see this appeal as controlled by the decision of Division Five of this District in People v. Ledesma (2003) 106 Cal.App.4th 857, which involved a protective sweep performed in the course of a probation clause search for drugs, that is to say, after the searching officers were already legally inside the residence. Apart from the obvious procedural difference that Division Five was affirming the denial of a suppression motion, the searching officer in Ledesma provided testimony that supported a reasonable fear of violence in that context. Ledesma also noted the principle quoted ante,“ ‘the mere abstract theoretical “possibility” that someone dangerous might be inside a residence does not constitute “articulable facts” justifying a protective sweep. Where an officer has no information about the presence of dangerous individuals, the courts have consistently refused to permit this lack of information to support a ‘possibility’ of peril justifying a sweep.” (Id. at p. 866.) The trial court concluded that the search here came within this principle. Our independent review of the undisputed material evidence leads to the same conclusion.
DISPOSITION
The order of dismissal is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
We mention this point because, with the exception of not having faced a drawn weapon, defendant was subjected to the same assertions of authority as was the defendant in Celis. However, at no point in the trial court did defendant challenge either that Deputy Tait’s actions amounted to more than a detention, or that those actions were illegal. Implicitly accepting that he had been validly detained outside his house, defendant limited his suppression motion to evidence obtained as a result of the subsequent search. It is therefore puzzling to see both sides display varying degrees of enthusiasm for this court to “reach the question left unresolved by Celis.” We decline to do so for two compelling reasons. The first reason is that the issue was not raised in the trial court and reviewing courts ordinarily to not allow new theories to be raised on appeals from suppression rulings. (E.g., People v. Williams (1999) 20 Cal.4th 119, 130-131 [rule applied to defendant]; People v. Smith (1983) 34 Cal.3d 251, 270-271 [rule applied to People].) The second reason is that it is unnecessary, because the appeal can, and will be, resolved by following the same analytical approach used in Celis.