Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063284
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On October 10, 2006, police officers responded to an emergency report of a domestic violence incident. The responding officers were advised by the victim that the appellant, who had fled the scene and was at large, was armed, inebriated, and possibly suicidal. They entered a bedroom where the victim told the officers the appellant kept his guns. They observed and seized illegal weapons, including firearms. The trial court found that the search of the bedroom and seizure of the weapons was justified by exigent circumstances. We agree and affirm.
Background
Appellant Raymond Edward Jungwirth was charged with three counts of felony possession of an assault weapon (Pen. Code, § 12280, subd. (b); counts 1-3); felony manufacture, sale or possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a); count 4); felony unauthorized alteration of a firearm identification (Pen. Code, § 12090; count 5); misdemeanor alteration of a firearm identification (Pen. Code, § 12094; count 6); misdemeanor carrying a concealed firearm without a license (Pen. Code, § 12025, subd. (a)(1); count 7); and felony manufacture, sale or possession of metal knuckles (Pen. Code, § 12020, subd. (a); count 8).
At the time of the preliminary hearing, on March 2, 2007, appellant moved to suppress the weapons which formed the bases for the charges against him, contending that they had been illegally seized from his residence. At the suppression hearing, Redwood City Police Officers Russell Felker and Steve Barker testified they had received an emergency “Code 3 dispatch” at about 10:06 p.m. on October 10, 2006. The dispatcher conveyed a report of a domestic violence incident at a residential condominium complex involving a man later identified as appellant who was despondent over a recent breakup of a relationship. Appellant was reported to have been drinking alcohol, to be armed and possibly suicidal, and to have left the scene of the disturbance. Felker, Barker and another officer went to the reporting party’s apartment. About seven to nine other officers also responded to the call and searched the residential complex and surrounding area for appellant.
Code 3 is the highest priority dispatch and indicates that officers should respond with their emergency lights and sirens activated.
The reporting party, Helen Rodriguez, was appellant’s cohabitant. When she let Felker and Barker into the residence she shared with appellant, she appeared physically upset and shaken. Felker and Barker conducted a protective sweep of the apartment and found no other people or weapons. The apartment, however, was in disarray. Felker testified: “I saw a broken chair in the first bedroom to my left as I entered, and directly in front of me there was [what] looked like broken bathroom items on the floor. As I entered the master bedroom I noticed the sliding glass... closet doors had been shattered. There was just broken furniture and broken items strewn throughout the whole apartment.” Rodriguez told Barker that appellant had broken the closet door with his fist.
She testified at the suppression hearing that she and appellant had continued to live together in the apartment after previously terminating their romantic relationship, living in separate bedrooms, with each paying rent.
Photographs of the condition of the interior of the apartment were introduced into evidence and viewed by the magistrate.
Rodriguez told Felker that she had been fighting with appellant, that he had been drinking, and that he had left the apartment despondent. She advised the officers that she believed appellant had a gun in his pocket when he left, and that he regularly carried a gun. Felker testified, “Based on the totality of all the circumstances, one being the first original 911 call, the circumstances involving that call, a despondent subject who had alcohol on board and possibly suicide, and armed, I fe[lt] [there was] an imminent danger or there’s a continued danger to not only the officers in the area but other citizens living in that area.” Barker similarly testified that he “[a]bsolutely” feared for the safety of his “fellow officers out there searching the area for the defendant [¶]... [¶] [b]ecause he was believed to be armed with a handgun, loaded.”
Felker asked Rodriguez where appellant kept his guns. “She walked us over to another room and pointed, saying that he kept guns in here, and then pointed towards the closet” and stood back. Felker and Barker entered the room “to confirm whether or not... any guns had in fact been taken, if the subject was in fact armed.” From where he was standing outside the room, Felker saw what looked like a holster. He entered the room and examined it. Based on the impression left in the empty holster, Felker determined that it had probably held a revolver and he conveyed that information to officers searching the area for appellant. From the position where he was examining the holster, Felker could see the sawed-off end of what appeared to be a shotgun sticking out from the headboard of the bed. He investigated and determined it was an illegal sawed-off shotgun and that it was loaded. Felker unloaded the gun to “make it safe.” At this time, he still did not know where appellant was. Other officers seized additional weapons, including an assault rifle, from the same room.
About 15 minutes after the officers arrived at appellant’s apartment, appellant was located in his car by another officer. A short-barreled revolver was found in the glove compartment of appellant’s car. It was not a subject of the motion to suppress.
Rodriguez testified as a defense witness. She alleged that when the first officer entered the apartment, “[h]e went crazy looking in the house.” An officer later asked for her consent to another search, and she refused because by that time she had learned that the officers had located appellant. The officer searched the room anyway and Rodriguez said she wanted to see a search warrant. Officers told her they did not need a warrant. Rodriguez testified that appellant “would never, ever hurt anything,” said appellant “had every right to be upset” that day, and that the house was in disarray regardless of appellant’s conduct that night. She acknowledged, however, that appellant had put his fist through the closet door and had broken some furniture.
The magistrate denied the motion to suppress. “First of all,... the officers are searching for a man who is reportedly armed, reported from the very beginning to be armed by the dispatcher. Obviously someone told the dispatcher that. He’s despondent, he’s suicidal, he’s been drinking, he’s destroyed the house, which we can see. You look at the pictures of this house and you see a man clearly out of control. Clearly a danger to himself and the other officers. Don’t know whether he’s trying to commit suicide by cop or he’s going to shoot a cop or whatever he’s going to do, or come back and start shooting everybody. [¶] This house is a war zone. It indicates somebody out of control. This lady’s testimony is bizarre. Her credibility is zero. I don’t know whether she’s afraid of him, whether she has made up with him, which sometimes happens in these cases. I have no idea. But it’s totally inconsistent with the physical evidence. [¶] Moreover, I believe she did consent, I believe the officers’ testimony, her testimony about demanding to get a search warrant has no credibility as far as I can see. So the motion is denied....”
Appellant then waived preliminary hearing. He renewed his motion to suppress before the superior court. He argued that, even if Rodriguez’s testimony was disregarded, the evidence did not demonstrate that the officers had valid consent to enter his bedroom. The court denied the motion, finding there was an exigency that justified the search, and also that there was valid consent.
On December 10, 2007, appellant pled no contest to counts 1 and 8 pursuant to a negotiated disposition, and on the People’s motion the remaining charges were dismissed. The court suspended imposition of sentence and placed him on supervised probation for three years, on the condition he serve 90 days in jail, among other conditions.
Discussion
Appellant argues the trial court erred in denying his motion to suppress because the search was justified neither by exigent circumstances nor by Rodriguez’s consent as a cotenant. We conclude the search and seizure were amply justified by exigent circumstances, and therefore find it unnecessary to reach the issue of whether Rodriguez had actual or apparent authority to grant consent for the search.
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Ramos (2004) 34 Cal.4th 494, 505.) The prosecution has the burden of proving some justification for a warrantless search and seizure. (People v. Williams (1999) 20 Cal.4th 119, 127.)
“ ‘It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” ’ [Citation.] A warrantless entry is ‘presumptively unreasonable.’ [Citation.] This presumption can be overcome by a showing of one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement [citation], such as ‘ “... the risk of danger to the police or to other persons inside or outside the dwelling” ’ [citation].” (People v. Celis (2004) 33 Cal.4th 667, 676.) “ ‘[E]xigent circumstances’ [includes] an emergency situation requiring swift action to prevent imminent danger to life.... There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” (People v. Ramey (1976) 16 Cal.3d 263, 276.)
The evidence presented at the suppression hearing established exigent circumstances that justified the officers’ search of the room where they were told appellant kept his guns. We draw all reasonable inferences from the officers’ testimony in favor of the court’s ruling. (Davis v. Kahn (1970) 7 Cal.App.3d 868, 874.) Because the magistrate made an express adverse credibility finding as to Rodriguez, we disregard her testimony. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 258; People v. Block (1971) 6 Cal.3d 239, 245 [credibility of witnesses is a question of fact].)
The evidence established a reasonable belief by the investigating officers that there was an imminent risk of violence by appellant. Both officers testified that they had received an emergency dispatch for a reported domestic violence incident, which triggered a response by 10 to 12 officers with sirens and emergency lights activated. The dispatcher conveyed that the suspect, who had been drinking, was despondent, possibly suicidal and armed, and at large in the area. The severity of the situation was confirmed by Rodriguez’s shaken demeanor when the officers arrived at the apartment; by the very evident disarray in the apartment, which included broken glass and furniture and which the magistrate, after viewing photographs taken by the officers, described as a “war zone”; and by Rodriguez’s statements confirming the dispatcher’s report and adding that appellant had put his fist through the closet doors. The officers reasonably perceived an imminent danger of violence by appellant to himself, to the officers searching for him, to bystanders in the area if appellant proved to be armed, and to Rodriguez and the officers in the apartment in the event appellant returned home.
The evidence also established that a search of the bedroom would reduce the risk of violence by disclosing information about firearms that were already on appellant’s person and by enabling the officers to seize or disable firearms appellant might obtain and use if he returned to the apartment. The officers had an objective basis to believe additional firearms would be found in the room. Rodriguez told the officers that appellant kept his firearms in the room and Felker could see a holster from outside the room. Moreover, while examining the empty holster, he saw the sawed-off shotgun, further confirming Rodriguez’s report that appellant stored firearms there. The officers also took steps to reduce the risk of imminent violence in the course of their search. After Felker examined the holster, he immediately conveyed information about the apparently missing revolver to officers in the field, and after he discovered the sawed-off shotgun, he unloaded it to “make it safe.” Other officers seized weapons, including an assault rifle, found in the room.
The situation presented to the officers was, in light of all the circumstances, one necessitating “swift action to prevent imminent danger to life.” (People v. Ramey, supra, 16 Cal.3d at p. 276.) The search for, and seizure of, guns belonging to an agitated, despondent, armed and possibly inebriated suspect at large in an inhabited area was therefore justified by exigent circumstances. Since we find the motion to suppress properly denied on this basis, it is unnecessary to reach the issue of whether Rodriguez had actual or apparent authority to grant consent for the search.
See People v. Woods (1999) 21 Cal.4th 668 and People v. Bishop (1996) 44 Cal.App.4th 220.
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.