Filed 1/6/15 P. v. Ulloa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. !
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065341
Plaintiff and Respondent,
v. (Super. Ct. No. SCD244857)
ALBERTO LUIS ULLOA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles G.
Rogers, Judge. Reversed and remanded.
Earll M. Pott and Loleena Ansari, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
In December 2011, the Drug Enforcement Agency (DEA) learned a drug-
trafficking organization, the Knights Templar, planned to drive a shipment of narcotics from Mexico to the United States. Intelligence established a Spanish-speaking man
would receive the shipment at a specified residence in Santa Ana, California. Local law
enforcement agreed to help with surveillance and monitoring. On arrival at the residence,
detectives noticed two Hispanic men, including defendant, milling about a vehicle backed
into the driveway of the residence with its doors, hood, and trunk open.
Soon thereafter, a third man, Jose Hurtado-Ponce, emerged from the garage,
walked across the street, and peered inside a surveillance van. When Hurtado-Ponce
returned to the driveway, the other men stopped what they were doing and closed the
vehicle. One man drove the vehicle away while Hurtado-Ponce and Ulloa went back into
the home. Without a warrant, and without consent, the detectives approached and
promptly entered the home, where they found Ulloa carrying a satchel containing
narcotics and cash. It was later discovered the vehicle also contained narcotics.
In December 2012, the San Diego County District Attorney's Office charged Ulloa
with six counts related to his possession of cocaine, heroin, and methamphetamine. In
May 2013, Ulloa filed a motion to suppress evidence, pursuant to Penal Code section
1538.5, claiming the warrantless search of his home violated his Fourth Amendment
rights. The People filed an opposition, arguing exigent circumstances justified the
search. In October 2013, the motion was heard and denied. In December 2013, Ulloa
renewed his motion. When it was again denied, Ulloa pleaded guilty to all charges,
preserving his right to appeal the denial of his section 1538.5 motion.
2 FACTUAL AND PROCEDURAL BACKGROUND
In 2011, the DEA investigated a Mexican drug-trafficking organization known as
the Knights Templar. As part of the investigation, the DEA arranged for several wiretaps
on the phones of the organization's lead members. On December 27, 2011, the DEA
intercepted approximately seven calls involving organization leader Jose Antioco Padilla
(Tioco) and suspected drug couriers, including one call to a man later identified as Ulloa.
These calls revealed the organization planned to drive a shipment of narcotics across the
United States-Mexico border, and to deliver that shipment to Ulloa.
The next morning, agents intercepted another call between Tioco and Ulloa,
during which Ulloa agreed to wait at his then-current location until contacted by the load
driver. From this call, agents used Global Positioning System (GPS) satellite pings to
determine that Ulloa would receive the shipment at a specific residence in Santa Ana
(residence). The DEA called the California Multi-jurisdictional Methamphetamine
Enforcement Team (Cal-MMET), a special task force of the Los Angeles Sheriff's
Department, to request assistance with surveillance and monitoring. DEA agent Nathan
Jones told Cal-MMET detective Laurence Zimmerman that, based on wiretap
information, the DEA expected a vehicle to deliver a shipment of narcotics to a man at
the residence. Jones did not describe the suspected vehicle or any suspected persons at
that time, but he believed Zimmerman inferred the man spoke Spanish, as their
investigation plainly involved Spanish-speaking individuals.
Zimmerman and other Cal-MMET detectives parked across the street from the
residence, and began surveillance of the area. They noticed two Hispanic men, including
3 Ulloa, milling about a vehicle, a silver Lincoln LS, backed into the driveway with its
doors, hood, and trunk open. Soon thereafter, a third man, Hurtado-Ponce, emerged from
the garage, walked across the street, and tried to peer inside a Cal-MMET surveillance
van. The record does not indicate what Hurtado-Ponce saw, or might have seen, inside
the van. When Hurtado-Ponce returned to the driveway, he and the other two men had a
brief conversation, and the other men immediately stopped what they were doing and
closed up the vehicle. One man drove the vehicle away as Hurtado-Ponce and Ulloa
retreated into the home. Believing Hurtado-Ponce had compromised the surveillance, but
unsure of whether the men had already unloaded narcotics into the home, Zimmerman
decided to approach the residence to conduct a consent search.
Zimmerman directed the detectives to suit up and otherwise prepare for entry, a
process that took approximately 15 minutes. The Cal-MMET team then approached the
residence. They encountered a few individuals in the driveway, including women and
children, but neither sought nor obtained their consent to search the home. Through an
open door, Zimmerman saw Hurtado-Ponce and directed him outside. Hurtado-Ponce
immediately complied. Another detective, positioned around the back of the residence,
communicated that he saw Ulloa inside. Zimmerman ordered a "protective sweep" of the
residence. They found Ulloa running through the family room toward the back door.
The detectives promptly detained him and seized and searched his satchel, which
contained six ounces of cocaine, one ounce of methamphetamine, and $6,000 in cash. A
search of Ulloa's person yielded a cell phone, the same one used during the intercepted
phone calls, and an additional $1,400 in cash.
4 The detectives later discovered the Lincoln LS in a parking lot a few miles away.
A search of the vehicle produced roughly one pound of cocaine, six pounds of heroin,
and 11 pounds of methamphetamine.
In December 2012, the San Diego County District Attorney's Office charged Ulloa
with possession of cocaine, heroin, and methamphetamine. The court subsequently
denied Ulloa's motions to suppress under Penal Code section 1538.5, ruling in both
instances the search of the residence was warranted as an exception to the Fourth
Amendment. Ulloa appeals the denial of his section 1538.5 motion.
DISCUSSION
I
Standard of Review
"An appellate court's review of a trial court's ruling on a motion to suppress is
governed by well-settled principles." (People v. Williams (1988) 45 Cal.3d 1268, 1301.)
As a mixed question of law and fact, two standards apply: the appellate court defers to
the trial court's factual findings when supported by substantial evidence, but reviews de
novo the issue of whether the challenged search was reasonable under the Fourth
Amendment. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Leyba (1981) 29
Cal.3d 591, 595-597.)
II
Warrantless Entry of a Residence
The Fourth Amendment to the United States Constitution guarantees "[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
5 unreasonable searches and seizures," and generally precludes warrantless entry into a
home. (U.S. Const., 4th Amend.; People v. Henderson (1990) 220 Cal.App.3d 1632,
1649 [explaining that "courts have guarded with particular zeal the right of individuals to
carry on private activities within their homes without unreasonable governmental
intrusion"].) "It is not surprising, therefore, that the Court has recognized, as 'a "basic
principle of Fourth Amendment law[,]" that searches and seizures inside a home without
a warrant are presumptively unreasonable.' " (Welsh v. Wisconsin (1984) 466 U.S. 740,
748-749, quoting Payton v. New York (1980) 445 U.S. 573, 586.)
The presumption of unreasonableness may be overcome, however, by a showing
of exigent circumstances. (Minnesota v. Olson (1990) 495 U.S. 91, 100 (Olson).)
"Exigent circumstances are defined as 'those circumstances that would cause a reasonable
person to believe that entry . . . was necessary to prevent physical harm to the officers or
other persons, the destruction of relevant evidence, the escape of the suspect, or some
other consequence improperly frustrating legitimate law enforcement efforts.' " (U.S. v.
Lindsey (9th Cir. 1989) 877 F.2d 777, 780-781, quoting U.S. v. McConney (9th Cir. 1984)
728 F.2d 1195, 1199 (en banc), cert. den. (1984) 469 U.S. 824.)
The People here claim exigent circumstances, namely the imminent destruction of
relevant evidence and the imminent escape of the suspect, justified the warrantless entry.
The People's burden is thus twofold: "First, it must demonstrate probable cause to secure
[the] residence. Second, it must show the existence of exigent circumstances to excuse
the lack of a warrant." (U.S. v. Lindsey, supra, 877 F.2d at p. 780.)
6 A. The Imminent Destruction of Relevant Evidence
1. Probable Cause as to the Presence of Contraband
To demonstrate probable cause to enter the residence, the People must
demonstrate there was probable cause to believe contraband or other evidence was
present in the residence. (See People v. Celis (2004) 33 Cal.4th 667, 676 (Celis)
[recognizing the imminent destruction of evidence exception applies when officers have
probable cause to believe evidence of a crime is present in the home, and reasonably
conclude the evidence will be destroyed or removed before they can secure a warrant].)
Probable cause is a factually specific, "fluid concept . . . not readily, or even usefully,
reduced to a neat set of legal rules." (Illinois v. Gates (1983) 462 U.S. 213, 232.)
Instead, it requires "a fair probability that contraband or other evidence of a crime will be
found in a particular place," based on the totality of the circumstances. (Id. at p. 238.)
The People admit the Cal-MMET detectives had no idea whether the suspected
contraband was in the residence, in the vehicle, both, or neither. The detectives thus
inferred the presence of contraband based on their understanding of the wiretap
information; the GPS cell phone ping to the residence; the presence in the driveway of
that residence of a vehicle, surrounded by a few Hispanic men, with its doors, hood, and
trunk open; and the conceivably suspicious behavior that occurred following Hurtado-
Ponce's "counter-surveillance."
Ulloa contends the detectives had only limited information not amounting to
probable cause as to the presence of contraband in the residence. When DEA agent Jones
asked detectives to assist with surveillance and monitoring, he did not provide a
7 description of either the suspected vehicle or any suspected persons. Because the vehicle
was already present when the detectives arrived at the residence, they had no insight as to
how long it been there, or what had happened since it arrived. Zimmerman testified the
detectives saw nothing removed from the vehicle or carried into the residence—no actual
narcotics, no suspicious packages, weapons, or other contraband. After Hurtado-Ponce
peered inside the surveillance van, he walked to the house before the three men closed up
the vehicle and dispersed, leaving both the front and garage doors wide open.
The People assert, however, the detectives nonetheless had information amounting
to probable cause based on the totality of the circumstances. The detectives easily
verified the information relayed by Jones as soon as they arrived at the scene. The
detectives then analyzed the event, as it unfolded, in light of their experience and training
in narcotics and trafficking. " 'Circumstances and conduct which would not excite the
suspicion of the man on the street might be highly significant to an officer who had had
extensive training and experience in the devious and cunning devices used by narcotics
offenders to conceal their crimes.' " (People v. Johnson (1971) 21 Cal.App.3d 235, 244,
quoting People v. Williams (1961) 196 Cal.App.2d 726, 728.)
Moreover, Zimmerman testified that based on his experience and training, he
believed the vehicle's open doors, hood, and trunk were consistent with and indicative of
narcotics trafficking. The trial court agreed, finding the vehicle was "not . . . parked in a
regular way [for] a residential home." Zimmerman also testified that based on his expert
opinion, the suspects acted "covertly," not calmly, in reaction to Hurtado-Ponce's
countersurveillance. The trial court again agreed, finding the suspects reacted "not in a
8 relaxed way, not in a slow way, not [in] an ordinary way, but consistent with a way that
would raise a suspicion."
Although probable cause is a concept not readily reduced to a neat set of legal
rules, the detectives acted on a collection of information that, when examined in its
entirety, sufficiently established the existence of narcotics in one of two places: the home
or the vehicle. We therefore conclude on this record that the detectives had probable
cause to believe there was contraband in the home.
2. Probable Cause as to the Existence of Exigent Circumstances
To demonstrate the existence of exigent circumstances, the People must
demonstrate there was probable cause that the destruction of evidence was imminent; that
exigent circumstances called for "police action literally . . . 'now or never' to preserve the
evidence of the crime." (Roaden v. Kentucky (1973) 413 U.S. 496, 505; Celis, supra, 33
Cal.4th at p. 676; Olson, supra, 495 U.S. at p. 100.) Where exigency is based on the
imminent destruction of evidence, courts have found relevant " '(1) the degree of urgency
involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that
the contraband is about to be removed; (3) the possibility of danger to police officers
guarding the site of the contraband while a search warrant is sought; (4) information
indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge "that efforts to dispose
of narcotics and to escape are characteristic behavior of persons engaged in the narcotics
traffic." ' " (People v. Koch (1989) 209 Cal.App.3d 770, 782 (Koch), quoting U.S. v.
Rubin (3d Cir.1973) 474 F.2d 262, 268-269; People v. Ortiz (1995) 32 Cal.App.4th 286,
9 292 (Ortiz).) " ' " '[F]ear or apprehension alone that evidence will be destroyed will not
justify a warrantless entry of a private home.' " ' " (People v. Thompson (2006) 38
Cal.4th 811, 835, quoting People v. Gentry (1992) 7 Cal.App.4th 1255, 1262.)
The court ultimately decides whether exigency justified the warrantless entry by
"the totality of circumstances known to the officers at the time of the warrantless
intrusion." (Hopkins v. City of Sierra Vista, Ariz. (9th Cir. 1991) 931 F.2d 524, 527.)
In Ortiz, two police officers entered a hotel looking for a man they saw drinking
outside. (Ortiz, supra, 32 Cal.App.4th at p. 289.) As they walked down the hallway, the
officers noticed a room door left ajar and, inside, a woman three to six feet away counting
tinfoil bindles and placing them on a table near the bed. (Id. at pp. 289-290.) Suspecting
the tinfoil contained heroin possessed for sale, the officers pushed open the door and
walked into the room. (Id. at p. 290.) The court decided "the specific facts known to [the
officers] and the inferences reasonably drawn therefrom support[ed] a finding of exigent
circumstances." (Id. at p. 295.) In light of the factors listed above, we find this record to
be distinguishable from Ortiz.
The first factor considers the degree of urgency involved and the amount of time
necessary to obtain a warrant. (Koch, supra, 209 Cal.App.3d at p. 782.) In Ortiz, the
officers " 'observed criminal activity with the naked eye from a vantage point accessible
to the general public.' " (Ortiz, supra, 32 Cal.App.4th at p. 291, quoting U.S. v. Garcia
(9th Cir. 1993) 997 F.2d 1273, 1279.) Believing the woman might be engaged in some
sort of fleeting drug transaction, in which the purchaser or seller was about to leave the
room, the officers believed, and the court agreed, that leaving to obtain a warrant would
10 require longer than the few minutes in which such a transaction could have been
consummated. (Ortiz, at pp. 293-294.)
Here, unlike the officers in Ortiz, the detectives did not directly observe criminal
activity. In fact, the detectives saw nothing removed from the vehicle or carried into the
residence―no actual narcotics, no suspicious packages, weapons, or other contraband.
And, unlike the officers in Ortiz, the detectives did not believe the suspects were engaged
in a fleeting drug transaction. Instead, they understood that the transaction involved a
sizeable shipment from Mexico. Although obtaining a warrant "would have taken at
minimum two to three hours," unlike the two officers in Ortiz, the Cal-MMET team
could have sent one of the many detectives on scene without jeopardizing their entire
operation. The People do not suggest facts or circumstances tending to suggest particular
urgency.
The second factor considers the reasonable belief that contraband is about to be
removed. (Koch, supra, 209 Cal.App.3d at p. 782.) In Ortiz, the officers believed if they
did not take immediate action the contraband would be destroyed. (Ortiz, supra, 32
Cal.App.4th at p. 290.) Specifically, "[w]hen asked how the heroin might be destroyed
'within the confines of that room,' [the officer] said he was concerned the culprits might
swallow it." (Id. at p. 290, fn. 1.) This fear was based in part on the "common
knowledge that those who possess drugs often attempt to destroy the evidence when they
are observed by law enforcement officers." (Id. at p. 293.)
Here, unlike the officers in Ortiz, the detectives acted without express concern any
drugs would be destroyed or removed. Specifically, when asked about whether the
11 detectives were concerned about the destruction of evidence, Zimmerman said nothing
more than "destruction of evidence is always a possibility." Moreover, a detective
positioned around the back of the residence could see Ulloa inside, and thus presumably
could also see whether Ulloa was attempting to destroy evidence. The record includes no
such observation. Instead, the record suggests the detectives walked right in, based only
on Zimmerman's concerns, which simply " ' " 'will not justify a warrantless entry of a
private home.' " ' " (People v. Thompson, supra, 38 Cal.4th at p. 835.)
The third factor considers the possibility of danger to police officers guarding the
site of the contraband while a search warrant is sought. (Koch, supra, 209 Cal.App.3d at
p. 782.) In Ortiz, with only two officers present, if one officer left in search of a warrant
the other would be alone, charged with preventing the destruction of evidence and
arresting any suspects, without knowing how many others might be inside, and without
knowing whether any suspect was armed. (Ortiz, supra, 32 Cal.App.4th at p. 294.)
Here, unlike in Ortiz, there were many detectives present at the time they
approached the residence. If one left in search of a warrant, there still would have been
many officers guarding the site of the contraband without increasing the possibility of
danger. Moreover, during the 15 minutes between Hurtado-Ponce's countersurveillance
and the detectives' approach, the front and garage doors remained open, people continued
to wander about, both inside the residence and in the driveway, including women and
children, and no one attempted to leave. As the detectives approached the residence,
Hurtado-Ponce remained in plain view and quickly complied with Zimmerman's request
to come outside. Although these circumstances do not completely alleviate the
12 possibility of danger to detectives on scene, especially considering the belief that
"narcotics dealers are frequently armed," the familial atmosphere and Hurtado-Ponce's
ready compliance together diminish that possibility. (U.S. v. Cattouse (2d Cir. 1988) 846
F.2d 144, 146.)
The fourth factor considers information indicating the possessors of the
contraband are aware the police are on their trail. (Koch, supra, 209 Cal.App.3d at
p. 782.) Ortiz explains the officers need not be certain they were actually seen; "[i]t is
sufficient the officers were presented with specific circumstances from which it
reasonably may be inferred that [the suspects] had, or might have, detected their
presence." (Ortiz, supra, 32 Cal.App.4th at p. 293.)
Here, the detectives believed Hurtado-Ponce compromised their watch when he
tried to peer into the surveillance van parked across the street from the residence. They
based this belief on the fact that immediately afterward, the three men closed up the
vehicle and dispersed. This behavior was "consistent with a way that would raise a
suspicion."
The fifth factor considers the ready destructibility of the contraband and the
knowledge that efforts to dispose of narcotics are characteristic of persons engaged in
narcotics trafficking. (Koch, supra, 209 Cal.App.3d at p. 782.) In Ortiz, the officers
believed the contraband sitting in front of the woman was readily destructible, "[s]ince it
is common knowledge that those who possess drugs often attempt to destroy the evidence
when they are observed by law enforcement officers." (Ortiz, supra, 32 Cal.App.4th at
p. 293.)
13 Here, unlike in Ortiz, the detectives suspected the residence contained an entire
shipment of drugs. Although the detectives did not know exactly how many pounds of
what kind of drugs they might discover therein, it is reasonable to infer that the shipment
was not of a readily destructible amount.
The detectives apparently jumped the gun. They could have ordered Ulloa out, as
they ordered Hurtado-Ponce, or they could have waited a moment longer to apprehend
Ulloa as he left the residence through the sliding glass door. Instead, they entered the
residence without hesitation, without a warrant, and without specific and articulable facts
amounting to probable cause to justify the invasion. Here, "[n]o reason is offered for not
obtaining a search warrant except the inconvenience . . . and some slight delay . . . .
These are never very convincing reasons and, in these circumstances, certainly are not
enough to bypass the constitutional requirement." (Johnson v. U.S. (1948) 333 U.S. 10,
15.)
Unlike the officers in Ortiz, the detectives were not "presented with an unexpected
situation which required a quick assessment." (Ortiz, supra, 32 Cal.App.4th at p. 294.)
They were not "out in the field," they were participating in a " 'planned arrest' resulting
from an investigation." (Ibid.) We conclude the People have not established probable
cause the destruction of evidence was imminent.
B. The Imminent Escape of the Suspect
The People alternatively contend the imminent escape of the suspect justified the
warrantless search of the residence. Although the trial court did not address this
14 argument, we conclude it does not justify the warrantless search because the detectives
did not have probable cause to believe Ulloa might escape.
In Olson, police suspected the defendant had driven the getaway vehicle during a
robbery turned fatal shooting. (Olson, supra, 495 U.S. at p. 93.) After tracking him to
the residence at which he was an overnight guest, police surrounded the home before
calling to ask the defendant to come outside. (Id. at p. 94.) The defendant refused and,
15 minutes later, police made a warrantless, nonconsensual entry and found the defendant
hiding in a closet. (Ibid.) Although the Supreme Court recognized "a warrantless
intrusion may be justified by hot pursuit of a fleeing felon" (id. at p. 100), it determined
the requisite exigent circumstances did not exist because " '[i]t was evident the suspect
was going nowhere. If he came out of the house he would have been promptly
apprehended.' " (Id. at p. 101.)
Here, like Olson, it was evident Ulloa was going nowhere. The detectives were
stationed around the exterior of the residence, including at the back entrance, and had
Ulloa emerged he would have been promptly apprehended. We conclude exigent
circumstances did not exist to justify the warrantless search of the residence. The
dissenting opinion's somewhat intemperate response to our conclusion does not persuade
us to change our conclusion.
III
Protective Sweep
The People alternatively contend reasonable suspicion justified the warrantless
entry as a protective sweep. "A 'protective sweep' is a quick and limited search of
15 premises, incident to an arrest and conducted to protect the safety of police officers or
others." (Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie).) Such a search is permitted
"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." (Id. at p. 337.)
Zimmerman ordered a protective sweep after directing Hurtado-Ponce outside.
The detectives engaged in the sweep not in conjunction with an in-home arrest but amidst
an out-of-home detention. However, "[a] protective sweep is not limited to situations
immediately following an arrest . . . [and] may occur in conjunction with a suspect's
detention." (People v. Werner (2012) 207 Cal.App.4th 1195, 1206 (Werner), citing Celis,
supra, 33 Cal.4th at p. 679.) Entry incident to an arrest or detention conducted outside
the home may be permissible when the "arrest taking place just outside . . . pose[s] an
equally serious threat to the arresting officers" as one that occurs in the home. (U.S. v.
Colbert (6th Cir. 1996) 76 F.3d 773, 776; Celis, at p. 679.) That the detectives merely
detained Hurtado-Ponce just outside the home therefore does not preclude them from
conducting a protective sweep of the residence.
Nonetheless, the People must establish that reasonable suspicion supported the
protective sweep. (Werner, supra, 207 Cal.App.4th at p. 1206.) Reasonable suspicion is
an abstract concept based on the totality of the circumstances, and calls for "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 harbor[ed] an individual
posing a danger to those on the arrest scene." (Buie, supra, 494 U.S. at p. 334.) The test
16 for a protective sweep thus "requires a reasonable suspicion both that another person is in
the premises and that that person is dangerous." (Werner, supra, 207 Cal.App.4th at
p. 1206.)
The People assert reasonable suspicion supported the protective sweep. The
detectives knew with some certainty someone remained inside the residence. Following
Hurtado-Ponce's surveillance, the detectives watched both Ulloa and Hurtado-Ponce
retreat into the residence. Zimmerman ordered the protective sweep, after directing
Hurtado-Ponce outside and before Ulloa had yet emerged, when a detective positioned
around the back announced he saw someone inside. The pivotal issue is, therefore,
whether articulable facts warranted the detectives' belief Ulloa posed a danger to those at
the scene. We conclude they did not.
The People admit the detectives observed neither narcotics nor weapons prior to
the protective sweep. Nonetheless, the People argue, based on the nature of narcotics
transactions and the fact the detectives "could not see [Ulloa] and could not know where
he was inside the home or what he was doing," a reasonably prudent officer would have
believed Ulloa posed a danger to those at the scene. But a detective positioned around
the back of the residence saw Ulloa inside, and thus presumably could also see whether
Ulloa was taking up arms or engaging in other threatening behavior. The record includes
no such observation. The People further assert Ulloa "was not responding to commands
to exit the [home]." But Zimmerman testified he only ordered Hurtado-Ponce out,
because "[n]obody else was [visible]."
17 The People nonetheless claim these facts do not rule out the possibility of danger
to the officers, especially considering Zimmerman's many years of experience as a sworn
peace officer and a member of the narcotics task force. Our consideration of the totality
of the circumstances certainly includes "consideration of the modes or patterns of
operation of certain kinds of lawbreakers." (U.S. v. Cortez (1981) 449 U.S. 411, 418.)
"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." (Celis, supra, 33 Cal.4th at p. 680.)
In Celis, police suspected the defendant was involved in drug trafficking. (Celis,
supra, 33 Cal.4th at p. 671.) During surveillance of his home, police witnessed the
defendant rolling a large, inflated truck tire toward an alley. (Id. at p. 672.) Believing the
tire contained either money or narcotics, the officers detained the defendant outside and
thereafter conducted a protective sweep of his home, because they "noticed [the]
defendant's wife and 'possibly a male juvenile' lived with him." (Ibid.) The Supreme
Court found "[t]he facts known to the officers before they performed the protective sweep
fell short of what Buie requires . . . ." (Id. at pp. 679, citing Buie, supra, 494 U.S. at
pp. 327, 334.) The court emphasized that the officers had not been keeping track of who
was in the house, and had no indication the defendant was armed. (Celis, at p. 679.)
Here, like Celis, the facts known to the detectives before they performed the
protective sweep fall short of Buie's requirements. The detectives knew Ulloa was inside,
but they had no indication he was armed or otherwise dangerous. The People have not
pointed to specific and articulable facts that would warrant a reasonably prudent officer
18 to entertain a reasonable suspicion that Ulloa posed a danger to officer safety. Like the
court in Celis, we recognize that "the work of a police officer in the field is often fraught
with danger." (Celis, supra, 33 Cal.4th. at p. 680.) But, like the court in Celis, we
conclude that the usual dangers associated with drug trafficking are not sufficient on their
own to justify a warrantless entry. "[A] protective sweep may not be based on 'a mere
"inchoate and unparticularized suspicion or 'hunch . . . .' " ' " (Id. at p. 678.)
DISPOSITION
The order denying the motion is reversed. The matter is remanded to the trial
court to set aside Ulloa's guilty plea and vacate the order denying his motion to suppress
evidence.
McDONALD, Acting P. J.
I CONCUR:
McINTYRE, J.
19 Aaron, J., concurring and dissenting:
I concur with the majority's conclusion that there was probable cause to believe
there was contraband in the home. However, I dissent from part II.A.2. of the majority
opinion because I believe that exigent circumstances justified the warrantless entry and
search of the home. I would therefore affirm the judgment of the trial court denying
Ulloa's motion to suppress.
Exigent circumstances sufficient to justify a warrantless entry into a home exist
when there is "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; Welsh v.
Wisconsin (1984) 466 U.S. 740, 748-753.) As the majority notes, courts look to " ' "the
totality of the circumstances known to the officers at the time of the warrantless
intrusion" ' " (quoting Hopkins v. City of Sierra Vista, Ariz. (9th Cir. 1991) 931 F.2d 524,
527), to determine whether exigent circumstances exist. (United States v. Licata (9th Cir.
1985) 761 F.2d 537.) Further, "[i]n determining whether a law enforcement officer acted
reasonably [under the circumstances], due weight must be given . . . to the reasonable
inferences which he is entitled to draw from the facts in the light of his experience . . . ."
(People v. Duncan (1986) 42 Cal.3d 91, 98, italics added.)
In People v. Ortiz (1995) 32 Cal.App.4th 286, two police officers, Forsythe and
Vila, entered a hotel looking for a man they had seen drinking in front of the hotel. They
obtained the man's room number from the manager. As they passed the room, they
noticed that the door was open, which allowed Forsythe to see into the room. "[Forsythe] observed defendant sitting on the bed and saw a woman counting out tinfoil bindles and
placing them on a table near the bed. . . . Forsythe was approximately three to six feet
away from the woman when he made this observation. Based on his training and
experience, Forsythe concluded the tinfoil bindles contained heroin possessed for sale.
Fearing the evidence would be destroyed if he did not act immediately, Forsythe pushed
the door open all the way and walked into the room, accompanied by Vila." (Id. at p.
290.) Once inside the room, Vila opened one of the bindles and discovered that it
contained a dark tar-like substance. The officers placed defendant and the woman under
arrest for possessing heroin for sale, seized the contraband, and searched the hotel room.
The Ortiz court upheld the warrantless entry and search of the hotel room despite the fact
that the officers had not seen or heard any attempt to destroy the contraband. The court
determined that the officers reasonably believed that, because the woman had seen the
officers as they walked past the open door to the hotel room, the destruction of the
contraband was imminent, thus creating an exigency justifying the entry and search.
In reaching this conclusion, the Ortiz court stated, "Viewed objectively, these facts
were sufficient to lead a reasonable officer to believe that defendant or the woman saw,
or might have seen, the officers. Since it is common knowledge that those who possess
drugs often attempt to destroy the evidence when they are observed by law enforcement
officers (e.g., People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6 [destruction by
swallowing]), it was reasonable for Forsythe to believe the contraband he saw in front of
defendant and the woman was in imminent danger of being destroyed. (United States v.
Santana (1976) 427 U.S. 38, 43 ['Once Santana saw the police, there was . . . a realistic
2 expectation that any delay would result in destruction of evidence'].) Thus, exigent
circumstances justified the warrantless entry into the hotel room." (Ortiz, supra, 32
Cal.App.4th at p. 293, italics added.) The Ortiz court continued, "Contrary to defendant's
suggestion, the officers need not have been certain that they actually were seen by
defendant or the woman. It is sufficient the officers were presented with specific
circumstances from which it reasonably may be inferred that defendant or the woman
had, or might have, detected their presence. (Cf. People v. Gentry [(1992)] 7 Cal.App.4th
[1255,] 1262; U.S. v. Parra (10th Cir.1993) 2 F.3d 1058, 1063-1064 [exigent
circumstances were demonstrated where officers believed that suspects 'might have
observed them from the partially open door and might therefore begin destroying
evidence'].)" (Ortiz, supra,, at p. 293.)
Ortiz is clearly instructive in this case. During the surveillance operation, the
officers on the scene observed one of the suspects, Hurtado-Ponce, peer inside a
surveillance van and then immediately return to the driveway and say something to Ulloa
and a third suspect. Ulloa and the third man in turn immediately stopped what they were
doing with the vehicle and closed the doors, trunk and hood of the vehicle. The third
man then sped away in the vehicle while Hurtado-Ponce and Ulloa retreated into the
house. Based on these observations, the law enforcement officers on the scene could
reasonably have inferred that their surveillance operation had been compromised and that
the suspects were now aware that law enforcement officers were monitoring their
activities.
3 The majority distorts the holding of the Ortiz court in its attempt to distinguish
Ortiz from the present case. Specifically, the majority cites the Ortiz court's observations
concerning the "fleeting" nature of the transaction in that case to suggest that this factor
was pivotal to the court's conclusion that exigent circumstances existed. In fact, this
factor was irrelevant to the court's holding that the possibility that the presence of law
enforcement officers has been detected, alone, creates exigent circumstances that justify a
warrantless entry. While the Ortiz court did mention the fleeting nature of the transaction
and the possibility that the defendant or seller might leave the hotel room while officers
attempted to obtain a search warrant, the court made these comments only after it had
concluded that the possibility that the officers might have been seen was sufficient, in
itself, to justify the warrantless entry of the hotel room. After reaching this conclusion,
the Ortiz court stated that even if it were unlikely that the defendant or the woman had
seen the officers, the warrantless entry would still have been justified because the
circumstances were such that the presence of the remaining officer "was subject to
imminent discovery if one of them waited outside the room while the other left to obtain
a warrant." (Ortiz, supra, 32 Cal.App.4th at p. 294.)
The majority further attempts to distinguish Ortiz by stating, "Here, unlike the
officers in Ortiz, the detectives did not directly observe criminal activity. In fact, the
detectives saw nothing removed from the vehicle or carried into the residence—no actual
narcotics, no suspicious packages, weapons or other contraband." If, in making this
statement, the majority is suggesting that the officers in this case did not have reason to
believe that there was contraband in the residence that might be destroyed, I would note
4 that such a suggestion is in direct conflict with the majority's conclusion in part II.A.1
that "the detectives had probable cause to believe there was contraband in the home."
The majority's efforts to distinguish Ortiz are based, at bottom, on second-
guessing tactical decisions made by the law enforcement officers in order to preserve
readily destructible evidence, in the face of overwhelming facts demonstrating that their
surveillance operation had been compromised. The majority speculates that the officers
might have been able to station "one of the many detectives on scene" for several hours
while other officers obtained a warrant, with little description of the actions that such a
detective might have taken to peaceably preserve the evidence without the risk of danger
to that detective or to others at the scene. Similarly, the majority speculates, with no
basis in fact, that an officer observing the residence "presumably could also see whether
Ulloa was attempting to destroy evidence," and suggests that the "familial atmosphere"
reduced the possibility of danger. In engaging in this speculation, the majority disregards
the authorities cited above that have concluded that once suspects become aware of the
presence of police, it is reasonable to conclude that any delay will result in destruction of
evidence, and, in citing the "familial atmosphere" at the scene, ignores the inherent
dangerousness of the situation. "The police interest in protecting against violence during
the search of a home for narcotics has been widely recognized. 'In the narcotics business,
"firearms are as much 'tools of the trade' as are most commonly recognized articles of
narcotics paraphernalia." ' (Ybarra v. Illinois (1979) 444 U.S. 85, 106 (dis. opn of
Rehnquist, J.), quoting United States v. Oates (2d Cir. 1977) 560 F.2d 45, 62.) The
danger is potentially at its greatest when, as here, the premises to be searched are a
5 private home, rather than a place of public accommodation as in Ybarra. '[B]ecause of
the private nature of the surroundings and the recognized propensity of persons "engaged
in selling narcotics [to] frequently carry firearms to protect themselves from would-be
robbers" ( People v. Lee (1987) 194 Cal.App.3d 975, 983), the likelihood that the
occupants [of a residence] are armed or have ready accessibility to hidden weapons is
conspicuously greater than in cases where, as in Ybarra, the public freely enters premises
where legal business is transacted.' (People v. Thurman (1989) 209 Cal.App.3d 817,
824–825.)" (People v. Glaser (1995) 11 Cal.4th 354, 367-368, fn. omitted.)
Given that, as the majority concluded, there was probable cause to believe there
were narcotics in the home, that at least one suspect remained in the home, and that
officers' surveillance had been detected, causing one of the suspects to speed off in the
vehicle that was delivering the narcotics, there was, in my view, clearly probable cause
for officers to believe that anyone remaining in the house might attempt to destroy
evidence. Under Ortiz, the mere possibility that suspects in possession of contraband
might be aware that law enforcement officers are present is sufficient to constitute an
exigency since, as the Ortiz court succinctly stated, "[i]t is common knowledge that those
who possess drugs often attempt to destroy the evidence when they are observed by law
enforcement officers." (Ortiz, supra, 32 Cal.App.4th at p. 293.) Contrary to the
majority's suggestion, there is no requirement that officers have heard toilets flushing or
observed any other attempts to destroy evidence in order for there to be probable cause to
believe that evidence might be imminently destroyed. Because the officers in this case
had probable cause to believe that the suspects were in possession of contraband, and also
6 had reason to believe that the suspects had become aware that they were under law
enforcement surveillance, there was probable cause to believe that contraband or
evidence might be imminently destroyed.1 The warrantless entry and search were
therefore justified by exigent circumstances.
AARON, J.
1 The majority notes that here, unlike in Ortiz, the officers suspected that there was an entire shipment of drugs in the residence, and then states, "[I]t is reasonable to infer that the shipment was not of a readily destructible amount." In making this observation, the majority appears to suggest that the possible destruction of some of the contraband in the shipment would not justify a warrantless entry into the residence. Of course, that is not correct. Circumstances need not indicate that all of the contraband or other evidence might be destroyed in order for exigent circumstances to exist. 7