Opinion
H044770
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS MICHAEL CLAIBORNE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR00648)
After the trial court denied defendant Nicholas Michael Claiborne's motion to suppress evidence (Pen. Code, § 1538.5), defendant pleaded no contest to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and receiving stolen property valued under $950 (Pen. Code, § 496, subd. (a)). The trial court suspended imposition of sentence and granted probation for three years. We conclude that the warrantless search of defendant's house violated the Fourth Amendment and reverse the judgment.
I. Statement of Facts
At approximately 1:30 p.m. on October 11, 2015, Officers Michael Hedley and Karina Cecena responded to a 911 call regarding "a suspected domestic violence situation" at a single-family house on Ocean Street in Santa Cruz. The officers knocked on the door, but they received no response.
Officer Hedley contacted the reporting party, Robert Lemon, who lived directly behind the Ocean Street house. Lemon stated that he had been working in his backyard when he heard a woman crying. Lemon looked at the balcony, which was on the side of the house, and saw a man, who was later identified as defendant, holding down a woman. The woman, who had dark hair and was in her 20's, was face down while defendant held her shoulders and placed his knees in her back. She was crying to be let go. Lemon estimated that defendant held the woman down for three to four minutes, because Lemon had gone into his house to call 911 and when he returned to his backyard, he saw defendant stand up and yell at the woman to go inside. Lemon could not tell if the woman was going inside on her own or defendant was making her go inside. In addition, Lemon reported that there had been "ongoing problems" and defendant had been arrested at the house about a year earlier. After talking with Lemon, Officer Hedley returned to defendant's house and reported Lemon's statements to the other officers who had responded to the 911 call.
Officer Hedley initially testified that Lemon had reported that the woman was screaming. However, he later testified that Lemon "characterized it as crying and he didn't use the term 'screaming.' "
Meanwhile, Officer Cecena spoke to Anthony Dunn, who had emerged from under the exterior staircase to defendant's house. Dunn told her that his friend, who lived in the house, gave him permission to be at the house. Dunn was initially uncooperative and would not reveal if there was currently anyone in the house or talk about anything that had occurred. After the officers discovered that Dunn had outstanding warrants, he was arrested and placed in a patrol car. Dunn told the officers that the people that had been involved in an argument had gone back into the house and no one had left the house since the officers had arrived. When Officer Cecena asked Dunn for a telephone number for either the male or the female in the house, he provided the number for a female named "Sam." Dunn did not report that there was anyone except defendant and Sam inside the house. He also did not report that he had seen any violence, weapons, or injuries. The officers did not know when Dunn was last in the house.
The officers knocked on defendant's door and identified themselves multiple times. The occupants were also told that if they did not come to the door, the officers would force entry into the house. There was no response. The officers were also unsuccessful when they called the telephone number provided by Dunn.
Almost an hour after the officers responded to defendant's house, Sergeant Mark Eveleth gave a final "knock notice" advisement before ordering the door to be breached. He testified: "The decision was based upon the fact that we had a credible witness who had relayed to us information that led us to believe that a crime had occurred and that crime was a crime of domestic violence, that this was not a one-time incident. Information was obtained through our dispatch that there had been a prior arrest at that location for a false imprisonment. And we also had information that the sheriff's department had arrested Mr. Claiborne for a domestic also. So given that information, the fact that nobody would come to the door, we had tried other means of speaking to the people inside, calling phone numbers, I felt that there was a reasonable need to assess the status of the female in the residence based upon the statements from the witnesses." Sergeant Eveleth also knew that defendant had been on felony probation. Based on this information, he requested assistance from the sheriff's department. In addition, Sergeant Eveleth considered the situation a "high value action" and requested fire and medical personnel, because "we were uncertain what would occur when we got into the residence and what had already occurred."
As Detective Deocampo was using the breaching tool on the door, he could hear defendant saying that he was trying to open the door. The officer stopped and allowed him the opportunity to open it. However, the door had been damaged and defendant was unable to do so. As soon as the door was opened by Detective Deocampo, defendant walked out and was immediately handcuffed. Samantha Dibble, who matched the description provided by Lemon, walked out of the house behind defendant. Dibble had a small cut and dried blood on her nose. Officer Hedley escorted her "a distance away" to talk to her. When she was asked whether there was anyone else in the house, she responded, "No." The officer asked her if she was okay and she said that she was.
The officers conducted a protective sweep of the house to determine if they "had located the victims in this case." The officers did not know how many people were in the house. Though Sergeant Eveleth knew that Dibble matched the description of the woman involved in the domestic violence incident, he testified that "we hadn't actually seen what had happened, so we assumed that Mr. Claiborne was the male that was described to us and we could assume that this was the female, but unfortunately I don't see any way that we could have known that and done so in a reasonable time and not be delayed in possibly rendering aid to somebody in the residence." He also noted that a woman in the courtroom matched the description of the victim. Sergeant Eveleth decided to conduct the protective sweep while Officer Hedley was interviewing Dibble, because "[w]e wouldn't delay going into the residence to try and find somebody who's possibly bleeding to death, so we entered the residence. . . . The time that would have been needed for that could have prevented us from being able to perform lifesaving actions." Other officers secured a few rooms to his right and he turned left down a long hallway. Detective Deocampo was unable to enter the first room or "Room 1," because the door was locked. He entered a room at the end of the hall, which was "Room 3." Room 3 was filled with furniture, blankets, and debris. He moved some of the debris to look for "any bodies in the area." Since there was enough space behind a dresser for a person to hide, Detective Deocampo looked behind the dresser. The top drawer, which was open approximately five inches, contained a .40 caliber black handgun in the drawer. After Detective Deocampo showed the gun to Sergeant Eveleth, he resumed the protective sweep. He used a pocket knife to pick the lock on the door to Room 1. There was a dog in this room.
Once it was established that no one was in the house, Sergeant Eveleth released the fire and medical personnel to leave the scene. He also directed Officer Hedley to take photographs to document the condition of the door and the interior of the house to prevent claims of damage by the residents. Officer Hedley took photographs of the door. He then "moved from room to room taking photo . . . ." He saw "an empty magazine to a firearm in the top drawer of a tool box that was open and also a rifle bag, a soft-sided case of a rifle." He had taken two steps into Room 1 when he saw the drawer containing the magazine to a firearm. He did not testify about where he found the rifle bag.
After directing that photographs be taken, Sergeant Eveleth requested a search warrant. He explained the basis for his request: "So during the sweep of the residence we were able to enter, like I said, all rooms except for one. The one room that we weren't able to enter into, through that hole you could see a lot of tools and equipment that were in that room. The house when I had gone through it, I had seen drug paraphernalia or what I believed to be drug paraphernalia. There was also a stolen firearm located in the residence during the sweep that was in . . . an open drawer to a chest of drawers. And I had also noted that there was a computer and I had seen video cameras on the outside of the residence, so I believed that there might be stolen property present, but also with the video system I thought there might be evidence that would show the domestic violence incident that had occurred."
II. The Trial Court's Ruling
The trial court denied the motion to suppress. It stated: "From my perspective, as a judicial officer over the last six years, reading hundreds of domestic violence cases, . . . to hear that Mr. Claiborne was on top of the alleged victim with . . . his knees in her back and his hands on her shoulder, . . . that is serious domestic violence. [¶] And for the police to know that . . . would heighten their concern about the condition of the woman who was treated in such a way for such a time. And we know we had an originally uncooperative Mr. Dunn followed by a slightly more cooperative Mr. Dunn. But as the officer testified, in that scenario, we really . . . can't believe anything Mr. Dunn has said and you certainly don't want to rely on anything Mr. Dunn has said when you are evaluating decisions related to the safety of the people inside the house or your own safety. [¶] We also know the police knew that Mr. Claiborne was on felony probation at the time, which would heighten their sense of danger. We know that the police knew at the time that Mr. Claiborne had at least two, possibly three domestic violence referrals. We know that the occupants in the home had multiple occasions over a period of about an hour and refused commands to open the door and come out. [¶] During that period of time, police would have had no ability to know what was going on inside the house other than silence, which may have aroused further suspicion or may not have. I don't think we had any testimony on how the silence impacted them. Certainly, it could go one way, or it could go the other. [¶] So I don't find any problem finding that under those facts it was appropriate to breach the door. And given what happened immediately thereafter, the two individuals who were quickly taken out of this house and out of the presence of the officers who . . . were then doing a protective sweep, I think it was reasonable for them to continue because they did not know that the woman who had passed them in the door was actually the woman who had been hurt. [¶] And they did not know if anyone else was within that house, the house of a known felon who might be there to do them harm. This is a community where, in the not very distant past, two officers from this department . . . were outside the residence of someone they wanted to contact, were surprised, ambushed, and assassinated. [¶] And those officers in this case had a right to protect themselves and had a right under these facts and these circumstances to search for the victim until they were sure they already had her and search the home of this convicted felon to make sure that they were safe in that home until they decided what to do." The trial court subsequently corrected itself and stated that defendant was not on felony probation at the time of the search.
III. Discussion
Defendant contends that none of the exceptions to the warrant requirement applied in the present case.
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment. [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 120.)
The federal and state Constitutions prohibit unreasonable searches and seizures by the government. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. 1, § 13.) Evidence obtained by a police officer in violation of the Fourth Amendment is subject to the exclusionary rule. (Segura v. United States (1984) 468 U.S. 796, 804 (Segura).) A warrantless entry into a home is presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 587.) In the case of a warrantless search of a home, the prosecution bears the burden of establishing that the search "was justified by some exception to the warrant requirement." (People v. Camacho (2000) 23 Cal.4th 824, 830.)
One exception to the warrant requirement is "the need to assist persons who are seriously injured or threatened with such injury. ' "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." ' [Citations.] Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.]" (Brigham City v. Stuart (2006) 547 U.S. 398, 403-404.) "This 'emergency aid exception' does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. [Citation.] It requires only 'an objectively reasonable basis for believing,' [citation], that 'a person within [the house] is in need of immediate aid,' [citation]." (Michigan v. Fisher (2009) 558 U.S. 45, 47.) "Officers do not need ironclad proof of 'a likely serious, life-threatening' injury to invoke the emergency aid exception." (Id. at p. 49.)
Here, there was an objectively reasonable basis for believing that someone inside the house was seriously injured or threatened with such injury. A witness had very recently observed defendant force a crying woman face down on the balcony by putting his hands on her shoulders and his knees on her back. The witness had estimated that the battery lasted for three to four minutes before defendant ordered the woman into the house. However, the officers did not know when the battery began or whether it continued in the house. Neither defendant nor the victim had left the house after the battery had occurred. Though the officers repeatedly attempted to contact defendant and the victim, they received no response. The officers also knew that defendant had previously been arrested for false imprisonment and domestic violence, and that he had been on felony probation. Thus, the forced entry into defendant's house fell within the emergency aid exception to the warrant requirement.
We next consider whether the warrantless search of the house after defendant and Dibble left it fell within the emergency aid exception.
Here, defendant was placed in handcuffs as soon as he left the house. Dibble, who followed him out of the house, met the description of the victim on the balcony. The cut on her face was also consistent with the witness's description of how defendant had battered the victim. The officers had no information that anyone else was in the house. Since there was no objectively reasonable basis for believing that anyone inside the house was seriously injured or threatened with such injury, the emergency aid exception to the warrant requirement did not apply.
The Attorney General's reliance on People v. Troyer (2011) 51 Cal.4th 599 (Troyer) and People v. Pou (2017) 11 Cal.App.5th 143 (Pou) is misplaced.
In Troyer, there was a report that shots had been fired at a house, a man had " 'possibly been shot twice,' " and the suspects had left. (Troyer, supra, 51 Cal.4th at p. 603.) When the first officer arrived, there were three people outside the house: a man providing first aid to a woman, who had been shot, and another man, who had a head wound. The woman was unable to provide any information about the shooting. The officer spoke to the man with the head wound, who reported that the two suspects had fled. The officer also noted that there was blood on the front door. After the officer asked the wounded man whether there was anyone in the house, he stared at the officer for 15 or 20 seconds and did not respond. The officer repeated the question and the victim stared at him and "eventually said that he 'did not think so.' " (Ibid.) The officer again asked the victim, who "took a 'long' pause to stare at the officer and then said 'no.' " (Ibid.) The officer was concerned that this delayed response was untruthful or inaccurate due to his head injury. (Ibid.) Since the victims were screaming and there were sirens blaring from fire trucks and police vehicles, the officer was unable to determine whether there were any sounds coming from the house. (Id. at pp. 603-604.) Based on these circumstances, the officer decided to enter the house to determine whether there were additional victims or suspects. (Id. at p. 604.) After entering the house, the officers found drugs, guns, and cash. (Ibid.)
The Troyer court noted that the dispatch report stated that shots had been fired at the house and the officer's observation of blood stains on the door indicated that a bleeding victim had entered or left the residence. (Troyer, supra, 51 Cal.4th at p. 607.) The court also relied on the fact that "a male victim had 'possibly been shot twice'—and no such victim had yet been located." (Id. at p. 608.) Though the officer found a man with a head wound, the officer never testified that he observed gunshot wounds on him. Moreover, the male victim's "inconsistent answers raised serious concerns about his ability to give accurate and reliable responses" and the officer was unable to verify whether the victim's answer was correct. (Ibid.) Thus, the court concluded that there was an objectively reasonable basis to enter the residence to look for other victims and thus the emergency aid exception to the warrant requirement applied. (Id. at p. 609.) In contrast to Troyer, here, the victim left the house and there was nothing to indicate that there was more than one victim or even anyone else in the house.
In Pou, supra, 11 Cal.App.5th 143, the officers received a call about a " 'screaming woman' " and " 'distressed moaning' " at a house. (Id. at p. 145.) When they approached the house, they could hear several people arguing. (Id. at pp. 145-146.) An officer knocked on the door and announced his presence several times. The defendant eventually answered the door with another man. Though the defendant told them several times that they could not enter, the officers entered the house. During the search, they saw narcotics. (Id. at p. 146.) The officers eventually learned that they had been directed to the wrong address. (Id. at pp. 146-147.) Pou is also distinguishable from the present case. Unlike in Pou, here, after defendant and Dibble left the house, the officers had no information that there was anyone else was in the house or anyone who was seriously injured or threatened with such injury.
The Attorney General also argues that the "other valid justification for the sweep was the officers['] reasonable concern for their own safety while photographing the premises and interviewing the subjects, one of whom was a known felon."
The Attorney General does not rely on either the community caretaking or search incident to the arrest exceptions to the warrant requirement.
In the present case, the officers were lawfully within the threshold of the house after they breached the door. However, defendant immediately left the house and was detained. Dibble followed defendant out of the house and was questioned by one of the officers. At issue then is whether the exigent circumstance exception has been established, that is, whether the risk of danger to the police officers justified the warrantless search of the house.
"The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Maryland v. Buie (1990) 494 U.S. 325, 337.) However, as this court explained in People v. Werner (2012) 207 Cal.App.4th 1195, "[a] protective sweep is not limited to situations immediately following an arrest; it may occur in conjunction with a suspect's detention [citation] . . . And in some instances, an entry of a residence solely to conduct a protective sweep may be justified to ensure the safety of officers effectuating arrests just outside. [Citations.] ' "[I]n some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers" as one conducted inside the house. [Citations.]' [Citation.] The facts known to the officers before they perform such a protective sweep must still satisfy Buie; there must be ' "articulable facts" considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to the swept harbors a person posing a danger to officer safety. [Citation.]' [Citations.]" (Werner, at p. 1206, fn. omitted.)
Here, there were no facts known to the officers that would have led a reasonably prudent officer to reasonably suspect that there was anyone in defendant's house who posed a danger to officer safety. The officers were informed by Lemon that defendant had battered one woman, and Dibble met Lemon's description of the woman. Even if they did not trust Dunn's statement that there were only two people in the house, the officers had no information that anyone else was inside the house after defendant and Dibble left it. Moreover, defendant had been handcuffed. There was also no indication that any weapons were present in the house. Based on this record, the exigent circumstances exception to the warrant requirement did not apply.
The Attorney General also argues that the protective sweep "was conducted both for officer safety and victim protection. Those dual concerns elevated the reasonableness of the sweep in this case." There is no merit to this argument. As previously discussed, neither exception applied. --------
The Attorney General also contends that even if the protective sweep was illegal, the photographs taken by an officer were lawful and provided independent evidence to support the issuance of the search warrant. We disagree.
"[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure [citation], but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.' [Citation.] It 'extends as well to the indirect as the direct products' of unconstitutional conduct." (Segura, supra, 468 U.S. at p. 804, citing Wong Sun v. United States (1963) 371 U.S. 471, 484.) "In the typical 'fruit of the poisonous tree' case, however, the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the 'taint' imposed upon that evidence by the original illegality." (United States v. Crews (1980) 445 U.S. 463, 471 (Crews).)
Here, since we have concluded that the officers lawfully forced entry into defendant's house, Officer Hedley properly photographed the damaged door for liability purposes. This door opened into the kitchen, which led to a walk-through pantry, and then to a hallway connecting Rooms 4, 3, 2, and 1. A photograph taken from the breached door into the interior of the house showed the kitchen and the pantry area. Officer Hedley testified that this photograph showed the kitchen area and shelves, but he could not identify what was on the shelves. He did not testify that there was any contraband in the photograph. Nor did he testify that he observed contraband when he took the photograph. Officer Hedley then walked through the kitchen, turned left down the hallway, and turned left into Room 1. He saw the magazine to a firearm in an open drawer in this room. Based on his testimony and exhibit A, Officer Hedley would not have been able to observe the magazine while photographing the breached door. Detective Deocampo also walked through the kitchen, turned left, and entered Room 3 at the end of the hall. Room 3 was filled with furniture, blankets, and debris. When he looked behind a dresser, he saw a handgun in the top drawer. The back of this dresser would not have been visible in any of the photographs of the breached door. Moreover, there is nothing in the record to indicate where the rifle bag or the drug paraphernalia were located. Thus, the record fails to establish that the photographing of the breached door constituted an "intervening circumstance" which removed the " 'taint' imposed upon that evidence by the original illegality." (Crews, supra, 445 U.S. at p. 471.)
The Attorney General's argument that the evidence sought to be suppressed would have been inevitably discovered pursuant to the search warrant is also unavailing. The Attorney General has failed to explain how the officers would have obtained a search warrant for defendant's house without relying on the contraband that they found during the illegal search.
IV. Disposition
The judgment is reversed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Greenwood, P. J. /s/_________
Elia, J.