Metropolitan News-Enterprise


Tuesday, October 28, 2008


Page 3


Court Limits Weapons Confiscation From Mentally Disordered


By STEVEN M. ELLIS, Staff Writer


Police officers violated the Fourth Amendment when they entered a mentally disordered man’s home to confiscate his gun after taking him into custody outside for posing a danger to others, the Third District Court of Appeal ruled yesterday.

Ruling that a state law requiring confiscation did not provide a constitutionally permissible way for the officers to enter the residence because it did not authorize the issuance of warrants, the court upheld a trial judge’s order suppressing evidence found during the entry in the absence of exigent circumstances.

Officers responding to a 911 call in a sparsely populated area of Shasta County took Travis Wylie Sweig into custody outside his residence for a 72-hour period of mental health treatment and evaluation under Welfare and Institutions Code Sec. 5150. The action was taken after Sweig admitted firing his rifle at harassers he claimed had been banging on his trailer and shooting lasers which burned his skin, but whom the officers could not see.

Sweig was holding a rifle when the officers initially responded, but disappeared around the side of the trailer and returned without it before the officers convinced him to go to the hospital, and the officers went into the trailer to confiscate the rifle and search for firearms under Sec. 8120.

The section directs law enforcement to confiscate any firearms or deadly weapons from those detained under Sec. 5150, and gives law enforcement 30 days from the person’s release to initiate a petition for a hearing to determine whether returning the weapon would likely result in danger to the person or others.

The officers found the rifle, but also found a semi-automatic assault rifle in a gun case under Sweig’s bed, and he was charged criminally with possession of an unlawful assault weapon.

However, Shasta Superior Court Judge James Ruggiero concluded that the seizure was the product of a warrantless entry of Sweig’s residence in violation of the Fourth Amendment. Granting Sweig’s motion to suppress, Ruggiero dismissed the case.

On appeal, the prosecution argued that the Legislature’s placement of a mandatory duty on officers to seize weapons impliedly effected a necessary means to do so, and asked the court to read into Sec. 8120 the authority for a warrantless entry into a residence to fulfill the section’s mandate, but Presiding Justice Arthur G. Scotland rejected the request.

“We must resist the temptation because the limited role of courts in interpreting a statute does not include rewriting it to achieve a result that is not provided for in the statute or in other legislation…,” he said. “This is so even when the omission is an obvious oversight.”

Explaining that a statute cannot strip a mentally disordered person detained under Sec. 5150 of the Fourth Amendment right against a warrantless entry into his or her residence absent exigent circumstances, Scotland similarly rejected the prosecution’s argument that the entry was justified under the “community caretaking exception” to the Fourth Amendment.

The exception recognizes law enforcement officers’ participation in many community functions apart from investigating crime, including the preservation of life and property, but Scotland concluded that the argument failed because the prosecution had not shown the entry was necessary to fulfill the exception’s purpose.

He wrote:

“In this case, defendant lived alone in a sparsely populated rural area. He was detained outside the residence and placed in a patrol car for transportation to a mental health facility where he would be held in custody for a minimum of 72 hours…. Nothing suggested to the officers that it was necessary for them to make a warrantless entry into the residence to confiscate the rifle and additional firearms or other deadly weapons, rather than seek a warrant to do so.

“Although it turns out that the officers could not have obtained a search warrant (a legal conclusion no doubt unknown to them at the time), this flaw in the statutory scheme does not, in our view, constitute a ‘necessity’ for action that would otherwise violate the Fourth Amendment…. A contrary conclusion would mean that a state could circumvent the warrant requirement by intentionally or inadvertently limiting the situations for issuance of a warrant, and then asserting that those limitations create a necessity for a warrantless entry to fulfill a community caretaking function.”

Justices George Nicholson and Vance W. Raye joined Scotland in his opinion.

The case is People v. Sweig, 08 S.O.S. 5891.


Copyright 2008, Metropolitan News Company