Monday, July 22, 2019
Court of Appeal:
Dissenter Says Police, Acting Pursuant to Mere Speculation That Someone Required Rescue, Violated Fourth Amendment’s Warrant Requirement
By a MetNews Staff Writer
The First District Court of Appeal has held that the emergency-aid doctrine applied where police broke into a garage, which it turned out had been converted into an apartment, after 11 shots had been fired outside the structure and the occupant, after coaxing, came out with his hands in his pockets challenging officers to shoot him.
That officers heard noises from inside the garage prior to the occupant emerging, leading them to suspect that a captive was being held, was one of the factors cited by Div. Four’s majority in validating the entry. Upon breaking in—the door automatically locked after the occupant, Adan Rubio, exited—police spotted an explosive device and a .45 semiautomatic Smith & Wesson pistol.
A warrant was obtained and more weapons and a contraband substance were found. Rubio pled guilty to drug possession, with a firearm enhancement, after his suppression motion was denied and, on appeal, challenged that denial.
At issue was whether the emergency-aid component of the community-caretaking exception to the Fourth Amendment’s search warrant requirement justified the break-in. Presiding Justice Stuart R. Pollak wrote the majority opinion, in which Justice Tracie L. Brown joined, finding that it did.
Justice Alison M. Tucher dissented, arguing that shots fired outside the structure did not excuse a warrantless intrusion into the premises, asserting that the act contravened the Fourth Amendment.
A police response was precipitated by East Palo Alto Police Department Sergeant Clint Simmont receiving an alert on an app tied into a high-tech system. Microphones are placed throughout the city; the sound was perceived as gunshots, and the location was pinpointed.
Pollak saw no impropriety in the police conduct.
“In the present case,” he wrote, “there is no suggestion that the officers who entered defendant’s home were looking for contraband or doing anything other than attempting to ensure that inside there was not an injured victim or someone with a weapon who was then threatening injury to others.”
He quoted the trial judge as saying:
“[W]hat the defense is asking is for this court to second guess the actions of an officer in the field who knows that shots have been fired, sees physical evidence of the location where the firearm was discharged, hears movement within the home that he seeks entry to that is consistent with a reasonable fear that a victim of a shooting may be being secreted within the residence based on his prior experience, further that that activity to barricade the door was upon his request to enter as opposed to a verbal response saying, no, you can’t come in.”
Under the circumstances, Pollak said, the emergency-aid exception to the search warrant requirement pertained.
“If a man lives in a high crime neighborhood and somebody discharges a firearm outside his home, may the police break down his door and enter his apartment when he refuses to invite them in to investigate? The majority seems to think so, but the Fourth Amendment answers a resounding ‘no’—at least not without circumstances, not present here, that would cause a reasonable person to believe that someone in the apartment stood in need of aid, or that some other exception to the warrant requirement applied.”
She went on to say:
“That defendant lived in a high crime neighborhood, that a shooting had just occurred outside his home, and that he chose initially to exercise his constitutional right to be left alone in his own apartment do not entitle the police to break down his door. The emergency aid doctrine does not justify the warrantless intrusion into his home.”
The dissenter also argued the inapplicability of the exigent-circumstances exception to the warrant requirement, although neither the magistrate who denied the suppression motion nor the Court of Appeal’s majority opinion had invoked it. She opined:
“[L]acking probable cause to believe a shooting suspect would be found in defendant’s apartment, the police could not rely on exigent circumstances to justify breaking down his door and entering his home to look for a shooter.”
The dissent provides a clue that it might have initially been drafted as an opinion for the panel or for an anticipated majority. It says, in the first person plural:
“Because warrantless entry into a home is presumptively unreasonable, the government bears the burden of establishing exigent circumstances…, and we find none that justify forced entry here.”
The case is People v. Rubio, 2019 S.O.S. 3424.
Copyright 2019, Metropolitan News Company