1 Filed 5/22/13 P. v. Wolfe CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. BRADLEY ALLEN WOLFE, Defendant and Appellant. A135878
(Sonoma County Super. Ct. No. SCR612853)

Appellant Bradley Allen Wolfe pleaded no contest to unlawful possession of an assault weapon (former Pen. Code, § 12280, subd. (b)) 1 after the trial court denied his motion to suppress evidence se ized during a search of his bedroom. On appeal, he contends the trial court erred in refusing to suppress the evidence. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY On August 16, 2 010, Sonoma County deputy sheriffs ca me across a locked bedroom while performing a parole search of the Rohnert Park home of appellant’s brother, Steven Wolfe. 2 As described in more detail belo w, the officers entered the room and did a protective sweep. Alth ough no one was in the room at the time, the officers saw documents suggesting that the room was i nhabited by Bradley. After learning that

1 All further statutory references are to the Penal Code.

2 Since the brothers share the same surname, they will be identified solely by their first names throughout the remainder of this opinion.2 Bradley was on probation, the officers se arched the room and found weapons and ammunition. The issues in this appeal arise out of the legality of th e officers’ entry into
the bedroom.
The decision to search St even’s house was made earlier in the day by Deputy
Sheriff Marcus Holton who had received in formation that Steven possibly had been watching the home of a police chief in a nearby town. Steven had a history of assaulting law enforcement personnel and was on parole for threatening a police officer (§ 69). Holton assembled a search team, consisting of him and five other offi cers, supported by a sheriff’s helicopter. When the search began, the officers’ fi rst objective was to secure the single-story residence by performing a protective sweep. The officers encounte red no one and saw nothing unusual, except they discovered a lo cked bedroom door. They knocked on the door, but no one responded. An officer at tempted to look into the room through an outside window, but the blinds were shut. The locked door gave Holton a heightened concern for the officers’ safety. His concern was partly due to Steven’s history of violence against law enforcement officers,
but it was also because Holton noticed a st rong odor of “green” (as opposed to burnt) marijuana coming from the room, which raised the possibility that someone would have weapons to protect cash or drugs. In additi on, officers searching other parts of the house had found a flare gun and pepper spray. Ho lton believed that a person in the bedroom could fire bullets through the door or walls or come out with a weapon. One of the officers was posted outside of the locked bedroom while others continued to search different parts of the h ouse. At one point, Holton was told that Steven was at the Cotati Police Department and was claiming that the locked room was inhabited by his brother, Bradley. Holton had no other informati on from which he could determine whose bedroom it was, and he did not know wher e Bradley was at the time.
The officers decided to enter the bedroom to make sure no one was hiding in it, and an officer kicked the door open. Holt on estimated that they entered the bedroom approximately 15 to 20 minutes after completing the initial protective sweep of the house.3 Another officer at the scene, Deputy Sheriff Bryan Jensen, estimated that the amount of time it took before entering the lock ed room was “pushing” ten minutes. Once in the bedroom, the officers saw a fishing license and a California identification card with Bradley’s name on them . Jensen also noticed mail addressed to Bradley from the County of Solano. He left the room and called the sheriff’s department dispatch, from which he learned that Bradle y was on probation for a felony conviction in Solano County. Jensen then called and s poke with Bradley’s probation officer, who provided an address that matched Steven’s a nd who explained that Br adley was subject to warrantless searches as a condition of his probation.
The officers then searched the bedroom. Holton found an AR-15 rifle hidden in a closet. An ammunition magazine inserted into the weapon was empty, but Holton found additional magazines, at least one of whic h was loaded. The se arch also uncovered several large “ziploc” bags containing marijuan a, several jars containing marijuana, three samurai swords, and a police scanner. Bradley was charged in a felony comp laint by the Sonoma County District Attorney with unlawful possession of an a ssault weapon (Colt AR-15 rifle) (former § 12280, subd. (b)), felon in possession of a firearm (former § 12021, subd. (a)(1)), and felon in possession of ammun ition (former § 12316, subd. (b )(1)). He plead ed not guilty and moved to suppress evidence, including the AR-15 rifle. The trial court heard the suppression moti on in conjunction with the preliminary hearing. Officers Holton and Jensen testifie d. In denying the mo tion to suppress, the
court found that it was reasonable for the o fficers to believe that someone might have been hiding behind the lock ed bedroom door. Although th e court had initially been concerned with the delay between the start of the protective sweep of the house and the time the locked bedroom was finally entered, it found that the delay was sufficiently explained by the officers. The court stated , “Only after failing to secure the room from any other source did they make forcible en try to effectuate the protective sweep.” Bradley renewed his motion to suppress afte r the information was filed. The trial court again denied the motion, finding the offi cers had adequately articulated reasons to4 enter the locked room, “[w]hether it took five minutes, 10 minutes, 15 minutes or 20
minutes.” After the trial court again denied his mo tion to suppress, Bradley changed his plea
to no contest to the assault we apon charge. The other charge s were dismissed. The trial court sentenced Bradley to 16 months in county jail.
II. DISCUSSION “The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” ( People v. Glaser (1995) 11 Cal.4th 354, 362.)
Warrantless searches and seizures inside a home are presumptively unreasonable
under the Fourth Amendment of th e United States Constitution. ( People v. Troyer (2011) 51 Cal.4th 599, 602.) There are, however, a number of exceptions to this rule, and two of them are implicated in this cas e. The first allows officers to perform a protective sweep without a warrant, and the second allows officers to search areas under the complete or joint control of a parolee or probationer w ho has agreed to warra ntless searches as a condition of supervision. In this case, the prosecutor argued that the entry into the bedroom was justified under both of these exceptions because it was a legitimate part of Steven’s parole search, and it was part of a lawful protective sweep. The trial court, however, never ruled on whether the entry was permissible as a part of Steven’s parole search because it concluded that it was part of a lawful protec tive sweep. On appeal, the parties limit their5 arguments to the correctness of the trial c ourt’s ruling regarding the protective-sweep
issue. 3 “A ‘protective sweep’ is a quick and limite d 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.) A protective sweep can be justified by a “reasonable belief” that the ar ea to be swept harbors a dangerous person. ( Id. at p. 337.) That belief, however, must be supported by articulable facts, together
with the rational inferen ces from those facts. ( Id. at pp. 333-334; see also People v. Celis (2004) 33 Cal.4th 667, 678 ( Celis ).) Bradley contends the totality of the circ umstances failed to justify the protective sweep of his bedroom. He recognizes that th e parole search of Steven’s house preceded by a protective sweep of the areas under Steven ’s control was “arguably” justified. (See People v. Ledesma (2003) 106 Cal.App.4t h 857, 864 [protective sweep may precede a probation search]). But he maintains that the officers needed a warrant to enter his bedroom. He argues that a protective sweep of the bedroom was unwarranted and unnecessary because the officer s knew that Steven was at th e Cotati police station, had
reason to believe the bedroom was not Stev en’s because it was locked, had minimized safety risks by posting a deputy outside the bedroom door, a nd had not heard any sounds coming from inside the room. He contends that the officers were facing no real threat, but only an abstract, theoretical possibility of one. ( Id. at p. 866 [abstract theoretical

3 Under the exception permitting warrantless sear ches of persons on pa role or probation, officers “generally may only search those portions of th e residence they reasonably believe the probationer [or parolee] ha s complete or joint control over.” ( People v. Woods (1999) 21 Cal.4th 668, 682.) In light of our conclusi on that the search of the bedroom in this case was lawful under the protective-sweep exception, we need not resolve whether the officers could have reas onably believed that the room was under Steven’s complete or joint control (and ther efore lawful as part of Steven’s parole search).6 possibility someone dangerous might be insi de residence does not justify protective sweep].) We believe, on the contrary, that the sa fety concerns articulated by Holton and
Jensen were reasonable. Steven had a histor y of assaulting law enforcement officers, and his residence was being searched because he may have been surveilling the home of a police chief in a nearby town. The officers had reason to be ex tra careful. At the hearing on the motion to suppress, Holton testified, “My concern was that somebody was hiding inside the bedroom, you know, just it makes your hair on the back of your neck stand up when you search an entire house, here’s this locked bedroom of a parolee’s residence who has assaults against law enforcement. ” Holton also mentioned that, in his experience, there is usually someone hiding in side a locked room when he comes across one during a search.
Other facts added to the le gitimacy of the officers’ c oncerns about the potential dangerousness of the locked room. The odor of marijuana coming from the room raised the possibility that someone was in it and hiding and may have ha d weapons to defend cash or drugs. Moreover, officers had fou nd a flare gun and pepper spray in another bedroom of the house. While posting an offi cer outside the bedroom was prudent to help secure the room, it did not eliminate all threat s. Holton, a firearms instructor and SWAT team member, testified that bullets fired fro m inside the room would have gone through
the door or the walls. The officers’ reasonable security concerns would not have been eliminated simply
because the officers discovered that Steven, while at the Co tati Police Department, had said that the bedroom was Bradley’s. Firs t, Bradley’s whereabouts were unknown, which raised a reasonable possibility that, if the room was his, he was in it. Second, officers are not required to unquestionably accept the asser tion of a suspect—one whose residence is being searched while he is in custody and has little re ason to be cooperative and truthful—that a locked room in the premises is someone else’s. As Holton pointed out, there was “no indication that [the bedroom] belonged to . . . anybody else other that Steven Wolfe saying it be longed to his brother.”7 The fact that between 10 and 20 minutes elapsed before the officers entered the bedroom does not render the entry unlawful. Substantial evidence was presented to the trial court showing that the delay was expl ained by Holton’s practi ce of being cautious when searching areas of a house that may not clearly belong to the suspect, and the officers’ efforts to gather in formation about the locked room. In any event, nothing was
revealed in those 10 to 20 mi nutes that alleviated reasonabl e concerns that someone with weapons might be hiding in the bedroom. Bradley cites Celis, supra, 33 Cal.4th 672 in suppor t of his arguments. In Celis
, the California Supreme Court found that a protective sweep of a house was unreasonable
because the officers had no info rmation that anyone was inside the house or that anyone associated with the house was armed. ( Id. at p. 679.) Bradley argues the same facts are present here: the officers knew that Steven was at the police station, they had no knowledge that anyone was in the bedroom , and there was no indication that anyone
associated with the room was armed.
But the facts in Celis are distinguishable. In Celis , the police were conducting surveillance on the residence of a man suspect ed of transporting dr ugs in truck tires. When they saw the man rolling a truck tire down the alley behind his house, they
detained him. The officers d ecided to enter the house after a detective noted the man’s wife and possibly a “ ‘male juvenile’ ” lived in it. ( Celis, supra, 33 Cal.4th at p. 672.) Under these facts, the Supreme Court expre ssed uncertainty that a protective sweep was permissible following the detention outside the residence. ( Id. at p. 679.) The court ultimately declined to re solve that issue, and instead foun d the facts known to the officers “fell short of what [ Maryland v. ] Buie [494 U.S. 325] requires.” ( Ibid .)
In contrast to the officers in Celis, supra , 33 Cal 4th 667, Holton and his team were lawfully in the residence, and the home belonged to a parolee who had a history of violence against law enforcement offi cers. A case more on point is People v. Ledesma,

supra, 106 Cal.App.4th 857, in which the co urt approved a protective sweep in conjunction with a probation search: “The o fficers’ safety concerns were increased by the probable duration of the search, the fact that it would occur on their ‘adversary’s8 “turf” ’ [quoting Buie ], and the inherent distraction of conducting a careful examination of all the nooks and crannies of a probationer’s bedroom.” ( Id. at p. 864.) The phrase “ ‘adversary’s “turf” ’ ” is particularly apt to describe the situati on here given Steven’s history of conflict with law enforcement agents. Bradley also relies on People v. Ormonde (2006) 143 Cal.Ap p.4th 282. Once again, however, the facts of Ormonde involve an arrest outside of a residence and are easily distinguishable from the facts in this case. In Ormonde , the police received a domestic violence report, went to the addre ss they were given (an apartment building), and arrested the suspect outside the building. A detective on the scene believed that the suspect had come from a nearby apartment. He decided to enter the apartment because he felt “ ‘vulnerable’ ” and thought someb ody might come out with a weapon, even though there was no information that there was another suspect, that the victim was in the apartment, or that any w eapons were involved. ( Id. at pp. 286-287.) The appellate court concluded neither the specific facts nor a ge neral apprehension about domestic violence justified entering the apartmen t for a protective sweep. ( Id . at p. 295.)
For the same reasons Celis, supra , 33 Cal.4th 667 is not on point, neither is People v. Ormonde, supra , 43 Cal.App.4th 282. The Sonoma County sheriffs’ deputies were lawfully in Steven’s resi dence to perform a parole search . And, as discussed above, they had reasonable and legitimat e safety concerns that justified a protective sweep of the
locked bedroom. We conclude the trial court properly denied the motion to suppress evidence.9 III. DISPOSITION The judgment is affirmed.

_ ____________ ____________ Humes, J.

We concur:

_____________ ____________ Ruvolo, P.J.

_____________ ____________ Reardon, J.