Opinion
NOT TO BE PUBLISHED
Super. Ct. No. T050450F1
BLEASE , Acting P. J.
As part of a negotiated plea agreement, defendant Joseph Brennan pled no contest to maintaining a place for use or distribution of controlled substances in violation of Health and Safety Code section 11366.5. The trial court suspended imposition of sentence and placed defendant on three years’ probation, ordering him to serve 269 days on electric home monitoring and pay specified fees and fines.
Further undesignated references are to the Health and Safety Code.
On appeal, defendant contends that a warrantless search of his house violated his rights under the Fourth Amendment and, as a consequence, the trial court’s denial of his motion to suppress evidence ultimately obtained as a result of that search was error. We shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
While on routine patrol, Truckee Police Officer Karen Elliott was informed by dispatch that a citizen had called in a possible burglary at defendant’s residence in the Donner Lake area. According to dispatch, the informant observed a person in a purple Nissan truck driving around and parking on South Shore not far from defendant’s residence. The suspect knocked on the door of defendant’s house and peered in the front window, then walked around toward the back of the house and jumped over the fence into the back yard.
The informant did not indicate that the suspect was carrying anything, nor did he/she indicate that the suspect was seen tampering with anything at the house.
Elliott and Sergeant Christiansen responded to the “potential in progress burglary,” arriving at defendant’s home approximately 10 minutes later. The purple Nissan truck was not there when they arrived. Officer Garrett also arrived on scene and conducted a search for the vehicle but was unable to locate it.
In the meantime, Elliott and Christiansen approached the house and observed that the front window, which was not covered by a screen, was open approximately five inches. After checking the front door and finding it locked, Elliott went around to the back of the house to check the back door, which she also found to be locked and equipped with a doggy door large enough for “a small-framed human” to fit through. Looking through a window in the back of the house, Elliott was able to see inside but could not see whether the house was occupied. She did not see or hear anything suspicious or notice anything to suggest that a burglary was in progress, nor did she find any signs that someone had tried to force their way in.
Elliott estimated the doggy door to be approximately 12 inches wide by 15 inches tall.
Elliott returned to the front of the house. Sliding the front window open wider, she peered in and noticed a closed door on the second floor. She also noticed a large pit bull inside the house. Suspecting that a burglary might be in progress, and having some concern that someone might be hiding on the second floor, Elliott and Christiansen did a knock and announce. When no one responded, they reached through the open window and unlocked the front door.
Upon entering the house, the officers immediately encountered the dog standing approximately three feet in front of them making a low grumbling noise. Without retreating, they waited briefly for animal control to deal with the dog and then conducted a search of the first floor, finding no signs of unlawful entry and nothing to suggest that any of the rooms on the first floor had been disturbed.
Elliott and Christiansen continued to announce their presence as they climbed the stairs to the second floor. At the top of the stairs they encountered a closed door but heard no sounds from behind it. After again announcing their presence, Elliott opened the door to find the room sealed off with a dark plastic sheet hanging from the ceiling. There were no sounds coming from behind the plastic sheet. Concerned that someone might be hiding behind the sheet, Elliott pulled it aside and discovered 18 mature marijuana plants growing in the room. She also opened a door to a closet in the room and confirmed no one was hiding inside. The house was secured and Elliott obtained a search warrant.
By felony complaint deemed the information, defendant was charged with planting and cultivating marijuana (§ 11358), possession of marijuana for purpose of sale (§ 11359) and possession of LSD (§ 11377, subd. (a)).
Defendant initially pled not guilty to all charges and filed a motion to suppress evidence pursuant to Penal Code section 1538.5. In denying the suppression motion, the trial court concluded that the officers’ warrantless entry into defendant’s house was justified by the “community caretaking” exception to the search warrant requirement. (See People v. Ray (1999) 21 Cal.4th 464 (Ray).)
Pursuant to a negotiated agreement, defendant entered a plea of no contest to maintaining a place for use or distribution of a controlled substance (§ 11366.5) in exchange for dismissal of all three counts as originally alleged in the information. The trial court suspended imposition of sentence, placing defendant on three years’ probation and ordering him to serve 270 days in county jail. The probation order was subsequently modified pursuant to defendant’s motion to require defendant to serve 269 days on electric home monitoring.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant first contends the warrantless search of his home was unreasonable under the Fourth Amendment because (1) the community caretaking exception to the warrant requirement does not apply to residences, and (2) even if there were such an exception, the evidence in this case was insufficient to trigger that exception. Assuming the community caretaking exception applies to residences, we conclude the evidence was insufficient to justify the warrantless search under that exception.
Our state’s highest court discussed the “community caretaking” exception to the Fourth Amendment’s warrant requirement in the Ray case, a three judge opinion written by Justice Brown. In Ray, officers responded to a call from dispatch regarding a citizen report of a house with the front door open and the interior “in shambles.” (Ray, supra, 21 Cal.4th at p. 468.) When the officers arrived, they found the front door open and clothing and other items strewn about the house as though the room had been ransacked. Although they observed no signs of forced entry, they believed someone might be inside or a burglary might be in process. When no one responded to their knock and announce, they entered the house “‘to see if anyone inside might be injured, disabled, or unable to obtain help.’” (Ibid.) Without opening any interior doors or containers or touching anything, they searched the house, finding no one. However, they did observe a large quantity of cocaine and money in plain view. (Ibid.) A warrant was obtained and the seizure of those items led to charges against the defendant. (Id. at pp. 468-469.)
The trial court granted the defendant’s motion to suppress. (Ray, supra, 21 Cal.4th at p. 469.) The Court of Appeal reversed, finding the record established “‘the officers reasonably suspected that an exigency existed requiring their immediate warrantless entry,’” noting that “‘the officers were acting properly in their roles as community caretakers and had done nothing wrong . . . .’” (Id. at pp. 469-470.)
Justice Brown, writing the opinion for the court, addressed the appellate court’s apparent conflict between the exigent circumstances and community caretaking exceptions to the proscription against warrantless searches. The court explained that the community caretaking exception (of which emergency aid is a subcategory) is distinct from the exigent circumstances exception. (Ray, supra, 21 Cal.4th at p. 471 .) “‘[T]he defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.’ [Citations.] Upon entering a dwelling, officers view the occupant as a potential victim, not as a potential suspect.” (Ibid.) Clarifying the relationship between community caretaking functions and criminal investigative duties, the court noted: “‘When in the context of a possible burglary or breaking and entering, the police enter a home or other structure in order to come to the aid of a possibly injured or threatened owner or to protect the property of that owner, they are, in one sense of the term, quite obviously investigating the possibility that a crime has occurred. [The] purpose vis-à-vis the burglar they may catch is, of course, “investigatory.” [¶] With respect, on the other hand, to the presumably innocent victims of possible crimes, where persons and/or property are in apparent danger, the police intervention is “non-investigatory” in its purpose and the constraints and hesitation that routinely inhibit a criminal investigation are inappropriate.’ [Citations.]” (Ray, supra, 21 Cal.4th at p. 476, fn. 4.)
Agreeing the People had not met their burden of establishing that the circumstances warranted entry under the emergency aid component of community caretaking (i.e., there was no reason to believe immediate entry was “necessary to aid life or limb”) (Ray, supra, 21 Cal.4th at pp. 472-473), the court nonetheless stated that “circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’” (Id. at p. 473.) That being so, the appropriate standard “is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions[.]” (Id. at pp. 476-477.) In evaluating whether the officer acted reasonably, weight cannot be given to unparticularized suspicions or “hunches” but only to the “‘reasonable inferences which [an officer] is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’ [Citation.]” (Id. at p. 477.)
Applying that test, Justice Brown (joined by Justices Kennard and Baxter) found the officers’ conduct met the community caretaking exception and affirmed the appellate court’s reversal of the trial court’s decision to grant defendant’s motion to suppress. (Ray, supra, 21 Cal.4th at pp. 477-478, 480.)
Chief Justice George, along with Justices Werdegar and Chin, concurred with the result; however, they reached that result by applying the “exigent circumstances” exception to the warrant requirement rather than the “community caretaking” exception. (Ray, supra, 21 Cal.4th at pp. 480-482.) Justice Mosk dissented on the grounds that neither of the exceptions applied. (Id. at p. 482.)
Reviewing the validity of a search or seizure, we uphold the trial court’s factual findings if supported by substantial evidence. However, we determine the reasonableness of the search or seizure independently. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Alvarez (1996) 14 Cal.4th 155, 182.)
Officers Elliott and Christiansen responded to a potential burglary, having received information that the suspect parked his purple Nissan truck near the defendant’s house and, after knocking on the front door and looking in the front window, jumped the fence into the defendant’s back yard. According to Elliott’s report, the officers arrived on-scene and entered the house within 10 minutes of receiving the call from dispatch. The purple Nissan truck was nowhere to be found. Both the front and back doors were locked. There was no sign of forced entry into the house, and no indication that any of the rooms visible from the first floor had been ransacked or disturbed in any way. The house was quiet. Even the dog, a large pit bull, was quiet, only grumbling when the officers entered through the front door.
Despite the absence of the suspect’s car or any sign of a break-in, Elliott based her belief that a burglary was in progress on the fact that someone could have entered the house either by crawling through the doggy door or by sliding the front window open further, crawling through and then closing it behind them. Given the known facts, we do not find that belief to have been reasonable. While one could speculate that the suspect had an accomplice who drove the truck to another location, such speculation does not rise to the level of a reasonable inference given the information from the informant. It seems just as plausible that, within the 10-minute timeframe it took the police to get to the house, someone known to the defendant (perhaps a friend or relative) stopped by, checked to see if defendant was home and, not getting a response from the front of the house, hopped the fence to check the back, leaving when he could not locate anyone at home.
The fact that the officers refused to proceed past the entryway of the house until the pit bull was removed by animal control is also telling. One could reasonably conclude that, in the absence of some prior familiarity with the animal, a burglar would be no more inclined to enter a house occupied by a grumbling pit bull than police were.
Other than an opportunity to enter the house, there was no objective evidence to suggest that someone did enter the house and was perpetrating a burglary. Without noise or the slightest indication of a disturbance, it was not reasonable to infer that an immediate, warrantless entry and search of the house was necessary for the officers to properly discharge their community caretaking duties. The trial court’s denial of defendant’s motion to suppress was error.
Our disposition regarding the community caretaking exception renders the possible applicability of the exigent circumstance exception unnecessary under these facts. Therefore, we need not address defendant’s remaining argument.
DISPOSITION
The judgment is reversed.
We concur: DAVIS , J., MORRISON , J.