Metropolitan News-Enterprise


Monday, April 21, 2008


Page 1


Officer’s Peek Over Fence Did Not Violate Constitution—C.A.




A police officer who boosted himself up on his toes in order to see over the defendant’s fence, saw a handgun lying on the ground when he illuminated the area with his flashlight, and then came over the fence to grab the gun did not violate the homeowner’s Fourth Amendment rights, the Third District Court of Appeal has ruled.

In a March 27 opinion, certified Thursday for publication, Justice Ronald Robie said a Placer Superior Court judge erred in suppressing evidence against Danny Robert Chavez. Chavez was charged with possession of a firearm by a convicted felon and obliterating the identifying information on a firearm after Roseville police visited his home on the night of Aug. 2, 2005.

Police went to the house after Chavez’s girlfriend reported that he had taken her car keys by force and driven off with the car, saying he had no intention of returning it to her. She told police that she had seen a gun at the house a few months earlier, that Chavez had been violent in the past, that she was afraid to return to the house, and that the couple had a 7-year-old son living with them.

Car Still Warm

Officer Aaron Leahy testified at the suppression hearing that when he went to the duplex where the couple lived, he found the car and touched the front grill, which was warm, leading him to conclude that it had been recently driven. He did not receive a response when he knocked on the front door and announced that he needed to talk to Chavez, he said, so he walked alongside the front of the house toward a 6-foot-high fence with a locked gate.

Leahy said he raised himself three inches on his tip toes and shined a light toward the house’s sliding glass door before noticing a shiny object, which turned out to be a cocked revolver. Worried about the child’s safety, he told Judge Robert P. McElhany, he climbed over the fence, grabbed the gun, which was unloaded, and then took the gun to his car in order to run the serial number.

In granting the suppression motion, McElhany concluded that “the officer actually had to trespass” in order to observe the gun, that he had “absolutely no purpose” to be “off to the side of the house,” and that “defendant obviously intended those things behind the fence to be private.” He then dismissed the case for lack of evidence.

The Court of Appeal, reversing, said the officer found the gun “in plain sight” and that exigent circumstances—the need to protect the safety of the child and the officer—justified the officer’s brief incursion to take possession of the weapon.

Not a Search

Leahy’s observations, Robie explained, did not constitute a search for Fourth Amendment purposes. The officer, the justice said, reasonably believed that the defendant was home—since his car was there and had been recently driven—and was entitled to attempt to contact him at the side of the house when he did not respond to the officer’s knocking and calling out.

The short walk from the front door to the fence, the jurist added, “was not a substantial or unreasonable departure from the normal access to the house,” nor were there any “barriers such as planters or trellises blocking public access,” so the officer’s presence there did not violate any reasonable expectation of privacy.

Nor does the fact that the officer raised himself up change the analysis, Robie said, since the fence was not so high as to prevent a taller person or someone with a view from another building from seeing over it.

As to the officer’s justification for going over the fence, Robie cited the likely presence of defendant and his child at the house, the defendant’s lack of response to his knocking and calling, the defendant’s recent and past violence, and the proximity of the gun to the sliding door, raising the possibility of the defendant suddenly appearing and grabbing the gun had the officer not done so first.

“By jumping the fence into defendant’s side yard to secure the revolver, Officer Leahy acted reasonably under the circumstances to protect both himself and the child he had reason to believe was in the residence,” Robie said, citing the U.S. Supreme Court’s explanation of the exigent circumstances doctrine.

The case is People v. Chavez, 08 S.O.S. 2225.


Copyright 2008, Metropolitan News Company