Opinion
C088755
07-02-2020
THE PEOPLE, Plaintiff and Respondent, v. ZACKARY ALAN JENKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF04174) OPINION ON REHEARING
Defendant Zackary Alan Jenks challenges the denial of his motion to suppress evidence discovered after a warrantless search of his property. We originally affirmed the judgment. Upon granting defendant's petition for rehearing, we shall reverse after further consideration of the issue.
Defendant petitioned for rehearing based upon an unpublished opinion from another panel of this court (People v. Thomas (April 1, 2020, C088814) [nonpub. opn.]), which, when confronted with the same search conducted here but the prosecution of a different defendant in a separate case, reached the opposite conclusion from our original decision. While we are ultimately convinced by the reasoning in Thomas, we deny defendant's request for judicial notice of that decision, as taking judicial notice of this decision will not aid in the resolution of this appeal on rehearing. --------
FACTS AND PROCEEDINGS
At 11:26 a.m., the Oroville Police Department received a 911 call that an infant had been abducted by its father from the Child Protective Services headquarters in Oroville. The report stated the parent was fleeing towards the river southeast of the facility. Eyewitnesses also said the suspect had run in the direction of the north side of the river.
Officer Shane Carpenter joined about six other officers and a police helicopter in the search for the suspect. As other officers searched the neighborhood between the facility and the river, Officer Carpenter found a gravel road paralleling the north side of the river and drove northeast to the end of the road. After searching near the river and not finding anything, he got back into his car and drove south to the only house towards the end of the road. It was about 0.9 miles from the abduction site.
Officer Carpenter knocked on the door of the house's lower level, tried the doorknob, which was locked, walked around outside to the upstairs, knocked on two doors on the second level, and then tried those doorknobs and found they were also locked. As Officer Carpenter left the upper level he smelled a strong odor of marijuana that appeared to come from a small outbuilding about 30 to 40 feet from the main house. He knocked on the door of the structure and tried the handle, which was unlocked. He announced his presence and nobody responded. Officer Carpenter opened the door and the marijuana odor became significantly stronger. He walked into the room a couple of feet "to check the corners for the suspect or possibly suspect and the baby." The suspect and the baby were not in the building but there was equipment he recognized as being used to make honey oil, a concentrate of THC made from marijuana buds. He took two quick and blurry photos of the equipment and left, closing the door. Officer Carpenter testified he entered the structure to look for the child, not to investigate the smell of marijuana.
Officer Carpenter then went to a large barn on the property with its door open. He announced his presence and entered the barn. No one was in the barn but there was additional equipment suggesting honey oil production. Officer Carpenter took pictures of this equipment and left the property. Officer Carpenter believed he was on the property for "[f]ive, ten minutes tops" and this was about an hour and a half after the child was reported missing. He also admitted to not receiving any specific information that anyone suspicious was on the property.
Officer Carpenter's pictures were used to obtain a search warrant for the property. Under the warrant, officers found large quantities of marijuana shake and honey oil. Defendant, who lived on the property, was charged with two counts related to the production and possession of these substances.
Defendant moved to suppress the evidence collected at the property from the search warrant under Penal Code section 1538.5. After listening to Officer Carpenter's testimony, the only witness at the suppression hearing, the court denied defendant's motion. The court found the abducted child created an exigent circumstance and that Officer Carpenter "saw exigent circumstances and went through the only house that was in his path as he searched the river bank," which "is a likely place that a father might hide with his infant."
Defendant pleaded no contest to the charges. He timely appealed the trial court's suppression ruling.
DISCUSSION
Defendant argues Officer Carpenter's initial search of the property was unreasonable because he lacked probable cause to believe there was an exigent circumstance. He asserts the photographs taken during this search could not justify the subsequent warrant so the evidence discovered must be suppressed. The People argue Officer Carpenter's search was objectively reasonable given the search for an abducted infant in the area of the property. We find the People did not carry its burden of justifying the warrantless search that discovered the information which provided probable cause for the subsequent warrant.
The standard of review for a suppression ruling "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.)
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials. Because a warrantless entry into a home to conduct a search and seizure is presumptively unreasonable under the Fourth Amendment [citation], the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry." (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. omitted.)
" ' "[Exigent] circumstances" means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property.' " (People v. Lucero (1988) 44 Cal.3d 1006, 1017.) "The need to render emergency aid is a well-recognized part of the exigent circumstances exception. But it has always required that articulable facts support a reasonable belief that an emergency exists." (People v. Ovieda (2019) 7 Cal.5th 1034, 1048.) Accordingly, officers "may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury." (Brigham City v. Stuart (2006) 547 U.S. 398, 400 [164 L.Ed.2d 650, 656].) "Officers do not need ironclad proof of 'a likely serious, life-threatening' injury to invoke the emergency aid exception." (Michigan v. Fisher (2009) 558 U.S. 45, 49 [175 L.Ed.2d 410, 414].) Instead, the question is "whether there was 'an objectively reasonable basis for believing' that medical assistance was needed, or persons were in danger, [citations]." (Ibid.) Like any exigency, the emergency aid exception does not authorize entry based on hunches or unsupported suspicions. It requires the officer to "be able to point to specific and articulable facts from which he concluded that his action was necessary." (People v. Block (1971) 6 Cal.3d 239, 244.)
"The line between a mere hunch and a reasonable suspicion based on articulable facts can be a fine one, but such a line does exist. If all that is required is the possibility that someone in some house might require aid, any officer on patrol might urge that people in homes often need help and the officer entered to make sure assistance was not required. . . . 'Ignorance of a fact, without more, does not raise a suspicion of its existence.' [Citation.]" (People v. Ovieda, supra, 7 Cal.5th at p. 1047.) Such is the case here. While the abduction of an infant raises an exigency that could support warrantless entry, an officer needs reasonable suspicion that the child is in a building before warrantless entry is permitted. Officer Carpenter went to the residence because it was in the direction that the father fled with the child. However, the residence was approximately 0.9 miles away from the abduction site, and the warrantless entry took place roughly 90 minutes after the abduction. Officer Carpenter admitted to having no evidence of any suspicious person on the property. The only facts he gave in support of the warrantless entry of the outbuilding was that the residence it was on was in the direction the father fled, and the house on the property was locked and appeared to have no one inside. Those are not facts supporting a reasonable suspicion that the father and abducted child were in the building he entered without a warrant.
Since the Attorney General does not carry the burden of finding legal justification for the warrantless entry, the fruits of that entry generally must be suppressed. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455].) The Attorney General argues suppression is inappropriate here because the exclusionary rule's deterrent is ineffective where the police engage in nonculpable conduct. Not so.
The exclusionary rule is inapplicable where its use would not appreciably deter the police conduct in question. (People v. Willis (2002) 28 Cal.4th 22, 30.) Accordingly, exclusion is inappropriate where officers had an objectively reasonable belief that the search and seizure was constitutionally permissible. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1292.) The People have the burden of proving the existence of an exception to the exclusionary rule. (People v. French (2011) 201 Cal.App.4th 1307, 1323.)
The Attorney General fails to carry this burden.
Examples where suppression has been held inappropriate include where police have relied on a statute authorizing a warrantless administrative search that was later held to be unconstitutional (Illinois v. Krull (1987) 480 U.S. 340, 342, 349-350 [94 L.Ed.2d 364, 375]), where police have relied on erroneous entries by a court clerk in a law enforcement database reflecting an outstanding arrest warrant (Arizona v. Evans (1995) 514 U.S. 1, 4-5 [131 L.Ed.2d 31, 39-40]), and where police have reasonably relied on an error in a police database regarding warrants and the "error was the result of isolated negligence attenuated from the arrest" (Herring v. United States (2009) 555 U.S. 135, 137 [172 L.Ed.2d 496, 502]). By contrast, Officer Carpenter's warrantless entry here, while well-intentioned, was deliberate and violated precedent established well before the entry. The fact that the evidence found pursuant to the warrantless entry was used to obtain a search warrant does not dissipate the taint of the illegal entry. (People v. Machupa (1994) 7 Cal.4th 614, 617, 626-627, 631-632.) Good intentions alone do not justify abandoning the exclusionary rule. Application of the exclusionary rule to cases like this will deter similar conduct in the future.
We conclude the motion to suppress should have been granted. Therefore, defendant's no contest plea is subject to a timely motion to withdraw.
DISPOSITION
The judgment is reversed. The case is remanded with directions to enter an order granting defendant's motion to suppress and permit defendant to withdraw his no contest plea.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
HOCH, J.