IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

 

THE PEOPLE,

Plaintiff and Appellant,

v.

ANDRE LAMONT RAY,

Defendant and Respondent.

____________________________________

 

 

A077757

(Contra Costa County

Super. Ct. No. 970311-7)

 

Defendant was charged with possession for sale of both cocaine and cocaine base and with manufacturing the latter. The superior court granted his motion to suppress evidence and dismissed the charges. We reverse, on the People's appeal, concluding that the officers' warrantless entry into a home was justified by a reasonable suspicion that prompt action was required to safeguard the health and well-being of potential occupants of that home.

Facts 1

At approximately 3:30 p.m. on December 25, 1996, Officers Tan and Cary received the following dispatch: "An open door at 4 Park Lane, number 4 Park Lane. PR says that the door has been open all day and it's all a shambles inside. It's unknown if anyone's home but the PR doesn't think so. The PR can be contacted if necessary."2 Officer Tan arrived at the residence approximately five minutes later. He testified, "I was concerned for possibly the life and property on the inside of the house, welfare of the people inside." Officer Cary arrived about two minutes after Officer Tan. Cary noted the reporting person pointing to the residence in question, though the officers did not speak to him at that time. Instead, they approached the front door of the residence, which stood open about one and one-half to two feet. Tan testified at the superior court suppression hearing that, looking inside, he saw "clothing, paper, strewn on the ground, on the sofa. It was just a real mess inside." His concern was heightened by what he saw: "It appeared that someone might have been inside, a burglary attempt or in the progress, or the welfare of the people inside." Tan testified during the preliminary hearing: "Due to the fact that the contents in the interior of the house was messy, looked like someone had gone through the house."3 The officers knocked several times, announcing their presence as Richmond police officers. There were no signs of forced entry. However, increasingly concerned for the welfare of possible occupants, the officers entered the residence to conduct a security check. They did not open any interior doors or containers. They found no one inside but did observe a large quantity of suspected cocaine and money in plain view. They left the residence and informed their supervisor. Ultimately, a search warrant was obtained, based upon the officers' observations. Evidence thus acquired led to the current charges.

At the conclusion of the suppression hearing, the court found: "This is one of those types of situations where I don't believe that the police officers acted improperly in the sense that they were performing a community service or community value. That's what they are there to do. And when doors are open, we will hope that they will take some steps to find out what is going on. [] . . . [] The testimony which has been presented to me would indicate that these officers were aware that a door had been open all day. That the persons who were the occupants of the premises had not been there, and that the place was in shambles. Those are the major portions of information they had. [] . . . [] . . . [T]here were two portions. One said they hadn't been there all day. And then when he was asked, he said I don't know how long he had been there. [] I don't feel on the facts of this case, there was sufficient information would justify the officer to believe that an exigent circumstance was taking place at that point. . . . [] It's one of those situations, I think, where it's not uncommon where people leave their doors open. And we commend the officers for at least doing their community service to try to protect people and help people. But there are going to be situations where in fact in doing that they are going to come inside and discover evidence of a crime. And it's going to turn out unfortunately it is not admissible. And I think this is one of those situations. [] I do not in any way think that the officers were necessarily wrong in what they did, but if we are going to get into a situation where you are going to prosecute somebody for a crime in this situation, I think they needed to get a search warrant. Motion is granted."

Discussion

There is no dispute that, upon entering the residence, Officers Tan and Cary saw contraband and incriminating evidence in plain view. Additionally, there is no dispute that those observations amply supported the search warrant ultimately obtained by the officers. The only question presented is whether the officers were justified in entering the residence without a warrant in light of the circumstances presented to them at the time. The case turns on what showing is required to establish the existence of exigent circumstances. The Attorney General contends that officers must have only a reasonable suspicion that exigent circumstances exist in order to enter a residence without a warrant. Defendant contends that probable cause is required. We hold a showing of reasonable suspicion is sufficient.

"It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures, [citation]." (Maryland v. Buie (1990) 494 U.S. 325, 331.) "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances." (Go-Bart Co. v. United States (1931) 282 U.S. 344, 357.) "When a defendant moves to suppress evidence citing a violation of the Fourth Amendment, the federal standard for exclusion must be applied. There is no independent California standard. [Citation.]" (People v. Hull (1995) 34 Cal.App.4th 1448, 1455.) On appeal, the trial court's factual findings must be upheld if supported by substantial evidence. However, once the facts have been established, determining whether the search was reasonable is a question of law on which the reviewing court exercises its independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)

"[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. [Citations.]" (Mincey v. Arizona (1978) 437 U.S. 385, 393-394.) The Mincey court noted that "[n]umerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." (Id. at p. 392, fns. omitted, italics added.) In Michigan v. Tyler (1978) 436 U.S. 499, 509, the court wrote: "Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant. [Citations.] . . . [] A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry 'reasonable.' " The foregoing cases refer to the cardinal principle of reasonableness but do not specify what degree of certainty as to exigency is required before officers may enter a residence without a warrant.

It is important at the outset to clarify the distinction between probable cause and reasonable suspicion. To that end, we quote at length from the Supreme Court decision in United States v. Sokolow (1989) 490 U.S. 1, 7: "In Terry v. Ohio, 392 U.S. 1, 30 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause. [] The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' [Citation.] The Fourth Amendment requires 'some minimal level of objective justification' for making the stop. [Citation.] That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means 'a fair probability that contraband or evidence of a crime will be found,' [citation], and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, [citation]." According to the high court, "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Illinois v. Gates (1983) 462 U.S. 213, 244, fn. 13.) Our own Supreme Court has defined probable cause to arrest as follows: "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 410.)

Taken together, these cases articulate a paradigm for evaluating the degree of certitude required to support law enforcement intrusion on Fourth Amendment interests. Degrees of certitude are found along a continuum, and the required level of certitude will vary with the nature of the intrusion. At the lowest level of certitude reposes the hunch or inarticulable suspicion, which is always insufficient, standing alone, to justify intrusive governmental action. Next on the continuum is reasonable suspicion, which requires an articulable justification for an objectively reasonable belief. Probable cause is the next, greater level of certitude. Probable cause requires that the suspicion be more than simply reasonable. Instead, the suspicion must be a strong one, consistent with the fair probability or substantial chance of criminal activity. Beyond probable cause, we move into the realm of courtroom proof: preponderance of evidence, clear and convincing evidence, and, finally, proof beyond a reasonable doubt.

Having set out this paradigm, we consider precedent to deduce what degree of certitude as to exigency is necessary to justify warrantless entry into a home.

Murdock v. Stout (9th Cir. 1995) 54 F.3d 1437 supports defendant's position that probable cause is required. There, officers went to a residence on the report of a possible burglary. They found a rear sliding door open. The lights and a television were on inside the house, and a telephone was ringing. They loudly announced their presence. When no one responded, they entered the residence. (Id. at p. 1439.) In analyzing the sufficiency of the evidence of exigent circumstances, the court wrote: "Although exigent circumstances relieve the police officer of the obligation of obtaining a warrant, they do not relieve an officer of the need to have probable cause to enter the house. [Citations.]" (Id. at p. 1441.) However, the court went on to find that, on the totality of circumstances, the officers had probable cause to believe that criminal activity occurred or was occurring. (Id. at p. 1442.) We note that the rulings of intermediate federal courts are merely persuasive and are not controlling authority. (People v. Bradley (1969) 1 Cal.3d 80, 86.)

People v. Bradley (1982) 132 Cal.App.3d 737 suggests that probable cause is not required. There, officers were summoned to a duplex by the occupant of one of the units who claimed to have heard breaking glass and footsteps in the other unit, though the resident of that unit was not at home. The officers found a pane of glass had been broken in the unit's locked door. They unlocked the door and entered. (Id. at p. 741.) The court found that these circumstances satisfied "the requirement of an objective, reasonable suspicion" for a warrantless entry. (Id. at p. 744.)

In People v. Gallegos (1970) 13 Cal.App.3d 239, the defendant claimed that the police entry into his home violated Penal Code section 844, which provided: "To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired." In that case, Sergeant Gouge responded to a residence after receiving an anonymous phone call reporting that Gallegos, an intravenous drug user known to the sergeant, had overdosed there. A small girl answered the door and reported that Gallegos was in bed with her mother. After Gouge asked the girl to wake Gallegos, she returned to say that she could not awaken him. Gouge then entered the residence. (Id. at p. 741.) The court upheld the entry, stating that, although the officer did not have probable cause to enter the premises, "[t]he trigger which sets a lifesaving operation in motion should be more sensitive." (Gallegos, supra, at p. 243.)

Decisions of the California Supreme Court are equivocal on this point. In Tamborino v. Superior Court (1986) 41 Cal.3d 919, 921-922, Officer Klein received a dispatch that a robbery had occurred at a particular residence and that a victim was injured and bleeding. The officer knocked and identified himself at the front door but received no response. Hearing movement inside, he kicked in the door. The defendant was walking toward the door wearing a bathrobe and bleeding. Klein took the defendant outside, handcuffed him, and returned to the residence to determine whether other injured parties were present. During this reentry, he saw incriminating evidence in plain view. The court concluded: "Under the particular facts of the present case, we conclude that the discovery of one wounded victim afforded reasonable cause to enter and briefly search for additional victims. Although unhurried reflection might have led another officer to conclude that Tamborino should have been questioned before even a superficial search was conducted, Officer Klein could reasonably have concluded that he did not enjoy that luxury, and that immediate action was warranted." (Id. at p. 924, fn. omitted, italics added; see also People v. Roberts (1956) 47 Cal.2d 374, 378 ["Defendant contends that the evidence is insufficient to support a finding that the officers had reasonable cause to enter the apartment."].) It is not clear whether the court's use of the phrase "reasonable cause" was meant to be synonymous with probable cause, which is required to justify an arrest or the issuance of a warrant. We note that the court has, on occasion, used the terms interchangeably. (See People v. Ingle (1960) 53 Cal.2d 407, 412 ["Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision."].)

In People v. Duncan (1986) 42 Cal.3d 91, Officer Paulson received a dispatch that a residential burglary was in progress or had just occurred. He found all the doors locked but a back window open. Beneath the window was a box containing a television set and other items. Believing the intruders were still present, Paulson climbed through the window. Inside, he observed evidence of narcotic manufacturing and smelled a strong odor of ether, which he knew was associated with drug laboratories. (Id. at pp. 95-96.) The Supreme Court found that Paulson's entry was lawful, upholding the trial court's finding that Paulson's "suspicion" that the burglary was in progress was "reasonable." (Id. at pp. 98-99.) The court went on to discuss the lawfulness of subsequent warrantless entries into the residence by other officers who were investigating the laboratory. In doing so, the court made reference to In re Tony C. (1978) 21 Cal.3d 888, 894, in which it had held that a temporary detention was permissible based upon a reasonable suspicion of criminal conduct. (Duncan, at pp. 103-104.) The court commented in a footnote: "We cite Tony C. only as an analogy to illustrate a general principle. We recognize that the quoted discussion deals with the minimal level of suspicion necessary to support a brief detention in a public place. More is required, of course, to justify entering a private house for investigative purposes." The court did not say how much more is required to justify entering a private house for investigative purposes, nor did it make clear the scope of the phrase "investigative purposes." (Id., at p. 104, fn. 3.)

As noted above, our state courts may not expand the remedy of evidentiary exclusion beyond those boundaries mandated by the federal exclusionary rule. (In re Lance W. (1985) 37 Cal.3d 873, 896.) The final arbiter of protections afforded by the federal exclusionary rule is, of course, the United States Supreme Court. (See People v. Bradley, supra, 1 Cal.3d at p. 86.) To the extent the United States Supreme Court has not spoken on a particular subject, the rulings of our own Supreme Court are controlling. However, we find no clear pronouncement on this subject in the rulings of our Supreme Court. We turn to the United States Supreme Court's guidance for the determination of reasonableness, by examining their pronouncements in related search and seizure cases.

The United States Supreme Court has recognized that a temporary detention not amounting to an arrest and a cursory search of the detainee's person may be conducted on less than probable cause: "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (Terry v. Ohio (1968) 392 U.S. 1, 27.) The court reached this conclusion after balancing " 'the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests' " against " 'the nature and quality of the intrusion.' " (Id. at pp. 20, 24.) The court reiterated its position in Adams v. Williams (1972) 407 U.S. 143, 145-146: "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [Citation.] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations.]" In Florida v. Royer (1983) 460 U.S. 491, 500, the court elaborated on the limitations of seizures based on reasonable suspicion of criminal activity: "The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. [Citations.]" In United States v. Place (1983) 462 U.S. 696, 704-706, the court applied the Terry analysis to conclude that brief investigative detentions of luggage at airports were permissible based upon reasonable suspicion that they contained narcotics, though a search of the luggage was not permitted absent probable cause.

The Supreme Court applied the same analysis when determining the propriety of a protective sweep, i.e., "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." (Maryland v. Buie, supra, 494 U.S. at p. 327.) The court acknowledged that, when an individual is arrested in his home, he retains an expectation of privacy as to the various rooms in the home and that entry by officers into those rooms is not simply a de minimis intrusion. (Id. at pp. 333-334.) However, the circumstances may justify that intrusion: "We . . . hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. . . . [] 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." (Id. at pp. 334-335, fns. omitted.)

Certainly, defendant Ray's interest in maintaining the privacy of his home was substantial. However, the officers' search was brief, designed merely to rule out the presence of potential burglars or injured parties. They did not open any interior doors or containers. To that extent, it was no more extensive, and perhaps less so, than the protective sweeps authorized by Maryland v. Buie, supra, 494 U.S. at page 337. Additionally, the officers caused no damage to defendant's property in order to effect entry.4 Balanced against this degree of intrusion is the governmental interest in protecting the safety of individuals who may be the victims of crime or other unfortunate occurrences. In these circumstances, to impose the probable cause requirement of a strong suspicion, consistent with a fair probability or substantial chance of exigency, before officers could make a warrantless entry would unduly hamper the officers' caretaking function. While probable cause is too onerous a standard, a warrantless entry justified by a reasonable suspicion of exigency permits a balance between the need for prompt action and the right to be free from unreasonable governmental intrusion.

The officers had been told that the door to the residence had been open all day. Even if the residence had been burglarized or some violent crime had occurred there, it was unlikely they would find perpetrators on the premises. However, if there had been such a crime, it was reasonable to believe that there may be individuals inside who were either injured or in need of assistance. It is unusual for the front door of a residence to be open all day, particularly in late December. Additionally, Officer Tan observed that the contents of the residence appeared to have been disturbed as if "somebody had gone through the house." The officers attempted to gain the attention of the occupants of the house by loudly announcing their presence, to no avail. On these facts, the officers reasonably suspected that an exigency existed requiring their immediate warrantless entry.

The officers' entry into the residence was no less reasonable than that which occurred in People v. Cain (1989) 216 Cal.App.3d 366. There, the victim was violently assaulted in her home early in the morning but could only describe her assailant's clothing. Officers decided to contact the resident of the apartment next door in hopes of locating a witness. Although the lights and television were on in the apartment, and music was playing, no one responded to the officers' knocks. Concerned that the resident may also have been attacked, they opened and entered through an unlocked door. They found the defendant asleep inside wearing blood-stained clothing that matched the description given by the victim. (Id. at pp. 368-369.) The court concluded: ". . . one must wonder how it would have appeared if someone in [the apartment] had been attacked and injured and was left in that apartment while the officers were explaining the matters to a magistrate. As stated in Tamborino, supra, 41 Cal.3d 919, there is no ready litmus test for determining whether a particular situation negates the constitutional requirement of a warrant and in each case the claim of exigent circumstances must be evaluated on its particular facts. [] In the instant case, on the record before us and for the reasons stated, we are persuaded the warrantless search was reasonable." (Id. at p. 377.)

The trial court struck a somewhat discordant note in its ruling in this case. On the one hand, the court concluded that the officers were acting properly in their roles as community caretakers and had done nothing wrong. Yet, the court also concluded that the evidence discovered by virtue of the officers' actions had to be suppressed. The chief purpose of the exclusionary rule is to penalize law enforcement officials for unlawful conduct, thereby encouraging lawful conduct in the future. If the officers here acted properly, there was no reason to penalize them. In fact, to the extent the court's sanction discourages similar conduct, it serves only to hamper lawful and proper police conduct. The ultimate test of reasonableness is whether an objective observer would conclude that the officers did what fair-minded and responsible persons would do under the circumstances. Here, the officers acted properly.

Disposition

The judgment is reversed.

_________________________

Corrigan, J.

 

We concur:

 

_________________________

Phelan, P.J.

 

_________________________

Parrilli, J.

 

 

 

Trial court:

Contra Costa County Superior Court

Trial judge:

Honorable Garrett J. Grant

Counsel for defendant and respondent:

Ted W. Cassman

Cooper, Arguedas & Cassman

Counsel for plaintiff and appellant:

Daniel E. Lungren

Attorney General

George Williamson

Chief Assistant Attorney General

Ronald A. Bass

Senior Assistant Attorney General

Joan Killeen

Supervising Deputy Attorney General

Juliet B. Haley

Deputy Attorney General

 

 

 

 

 

FOOTNOTES

 1 Richmond Police Officers Tan and Cary testified during defendant's superior court motion to suppress evidence. Additionally, the parties stipulated that the officers' testimony from the preliminary hearing could also be considered by the superior court. Our recitation of facts is drawn from both sources.

2 A tape recording of this dispatch was received in evidence. We quote from a transcription received by the court to assist in interpreting the tape. Both the tape and the transcription include the contents of the original phone call to police, which we set forth in part: "Police Department. [] Uh, yeah, this is Ronald Winther, I live at 232 Park Lane. [] Um, hm. [] Across the street at 4 Park Lane the door has been opened all morning and one of the neighbors up here just brought it to my attention. And he says the inside looks like a shambles and there hasn't been anybody around. [] . . . [] Okay sir and those people are gone all day that you know off [sic] or . . . [] I don't know really they haven't been, they just moved in up there about a month ago and I don't know, I think it was 2 guys, I'm not sure. [] Okay and so no one's been around that you see and the door is open. [] That I see no."

3 Respondent's counsel asserted at oral argument that Officer Tan's opinion as to how the house came to look as it did was stricken from the record. Counsel's recollection is partially correct. At the superior court hearing, upon a defense objection that the officer was speculating, the court struck, as non-responsive, Tan's statement, "It looked like it appeared somebody ransacked the house." However, his preliminary hearing testimony to similar effect was neither objected to nor stricken.

Tan also testified that there was an expensive television near the front door and an expensive stereo system just across from it. Neither was disturbed. At one point in his testimony, Tan suggested he saw these items before entering the home. At another part, his testimony suggests he saw them only after entering. This point was not clarified by counsel. Cary testified that, in his experience, approximately 95 percent of open-door reports turn out to have been burglaries.

4 The Attorney General argues that a lesser degree of exigency is required when police are able to enter a residence without causing damage, citing various decisions of the federal appellate courts. (See, e.g., Murdock v. Stout, supra, 54 F.3d at p. 1442 ["Furthermore, only a mild exigency need be shown where entry can be accomplished, as here, without physical destruction of property. [Citations.]"].) Although the Attorney General cites no authority from the United States Supreme Court or California courts of review adopting the notion that a "mild exigency" suffices to justify an intrusion with no physical damage, the magnitude of the intrusion is relevant under the balancing test set forth by the United States Supreme Court. (Terry v. Ohio, supra, 392 U.S. at pp. 20-27.)