Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. SCD195040 Melinda Lasater and Leo Valentine Jr., Judges.
McINTYRE, J.
Harry Parnell Kaiser and his wife, Michele Lynn Kaiser, appeal from judgments entered after a jury found Harry guilty of possessing marijuana for sale and Michele guilty of possessing marijuana. They both claim that the trial court erred by denying a motion to suppress evidence obtained as a result of a warrantless search. Alternatively, Harry argues that the evidence was insufficient to support the jury's finding of possession for sale. We agree that evidence obtained as a result of the warrantless search should have been suppressed. Accordingly, we reverse the judgments of conviction on this basis and do not reach Harry's remaining contention.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2005, San Diego Police Officer Thomas Jacques and two of his sergeants went to the Kaisers' residence to conduct a "knock and talk" and investigate an anonymous tip, received sometime within the previous ten days, that marijuana was being grown and sold there. Once at the residence, the officers knocked and verbally announced their presence, but received no response. After observing papers scattered around the house, discovering a side door and two back doors open, and hearing music coming from a bedroom, the officers concluded that a burglary might be taking place and entered the home without a warrant.
While inside the home, Officer Jacques observed four marijuana plants on the floor of an open closet. He also saw a bag of marijuana hanging over a closet shelf, pulled the bag down, and discovered another bag of marijuana behind the first. Officer Jacques' observations while inside the house formed the basis of a subsequent warrant to search the Kaisers' residence. Evidence seized pursuant to the warrant led to charges against the Kaisers for possession of marijuana for sale and various other drug-related offenses.
The Kaisers moved to suppress the evidence, arguing that the warrantless entry into their home could not be justified by either the exigent circumstances or the community caretaker exceptions to the warrant requirement. The trial court found that the officers were justified in entering the home under the community caretaking exception. This court summarily denied the Kaisers' subsequent petition for a writ of mandate. The Kaisers then filed a motion in the trial court to reconsider the suppression motion, arguing that the officers unlawfully entered the curtilage of their home prior to establishing a suspicion of burglary. The trial court exercised its discretion and denied the Kaisers' request for reconsideration.
A jury convicted Harry of possessing marijuana for sale and Michele of possessing marijuana. The trial court denied the Kaisers' motion for judgment of acquittal, but granted them probation. The Kaisers appeal, contending that the trial court erred in denying the suppression motion because (1) the officers unlawfully entered the curtilage of the their home before suspecting a burglary might have occurred and (2) the warrantless entry into their home was not justified by any exception to the warrant requirement. Harry also argues, in the alternative, that the evidence was insufficient to support the jury's finding of possession for sale.
DISCUSSION
I. Legal Principles and Standards of Review
The trial court is vested with the power to judge witness credibility, resolve testimonial conflicts, weigh evidence, and draw factual inferences. (People v. Needham (2000) 79 Cal.App.4th 260, 265.) We will uphold the trial court's factual findings if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts in determining whether the officers' actions were reasonable under the circumstances. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Welsh v. Wisconsin (1984) 466 U.S. 740, 748, quoting United States v. United States District Court (1972) 407 U.S. 297, 313.) The warrant requirement is not absolute, however, and the presumption of unreasonableness that attaches to a warrantless entry into one's home is overcome in a few "specifically established and well-delineated" circumstances. (People v. Thompson (2006) 38 Cal.4th 811, 817-818.)
One exception to the warrant requirement is exigent circumstances. An exigency is a situation that requires swift action to prevent imminent danger to life, serious property damage, imminent escape of a suspect, or destruction of evidence. (People v. Ramey (1976) 16 Cal.3d 263, 277.) Entry into a home based on exigent circumstances requires probable cause to believe the entry is justified by one of these urgent needs. (People v. Celis (2004) 33 Cal.4th 667, 676.) "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, supra, 16 Cal.3d at p. 277.) The reasonableness of an officer's conduct turns on whether, in light of all the facts available to the officer at the moment of the search, a man of reasonable caution would believe the action taken was appropriate. (People v. Block (1971) 6 Cal.3d 239, 244.)
Another exception to the warrant requirement is the community caretaking exception. The United States Supreme Court first used the term "community caretaking" in Cady v. Dombrowski (1973) 413 U.S. 433, 447, ruling that the warrantless search of the trunk of an impounded car was lawful because of safety concerns for the general public who might be endangered if an intruder removed a gun from the trunk of the vehicle. The Court noted that officers must "engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." (Id. at p. 441.) In People v. Ray (1999) 21 Cal.4th 464, 470-480 (Ray), three justices extended the community caretaker exception to residences and similarly concluded that "'the community caretaking exception is only invoked when the police are not engaged in crime-solving activities.'" (Id. at p. 471, quoting People v. Davis (1993) 497 N.W.2d 910, 920.) When the residence is entered, the police view the occupant as a potential victim rather than as a suspect in a crime. (Ibid.)
In Ray, the police responded to a residence after receiving a dispatch that the front door had been open all day and the inside of the residence was "a shambles." (Ray, supra, 21 Cal.4th at p. 468.) Through the open front door, the responding officers saw clothing and paper strewn on the floor and sofa and the front room appeared to have been ransacked. (Ibid.) Even though there were no signs of forced entry, based on one officer's experience he concluded a "'95 percent' likelihood they had encountered a burglary or similar situation." (Ibid.) After knocking several times and receiving no response, the officers entered to conduct a security check, looking for anyone who might have been injured or disabled. (Ibid.) They found no one inside but observed a large quantity of cocaine and money in plain view. (Ibid.)
The Ray plurality found the search justified and the seized evidence admissible. (Ray, supra, 21 Cal.4th at p. at p. 478.) According to Justice Brown, a warrantless entry into a residence may be justified by "circumstances short of a perceived emergency" including "'where the police reasonably believe that the premises have recently been or are being burglarized.' [Citation.]" (Id. at p. 473.) "The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?" (Id. at pp. 476-477.)
By separate opinion, three members of the Court expressed no view on the community caretaking rationale but concluded that exigent circumstances justified the warrantless entry. (Ray, supra, 21 Cal.4th at p. at pp. 480-482.) In his dissenting opinion, Justice Mosk concluded there was no exigency and also rejected the creation of a community caretaker exception. (Id. at pp. 482-488.)
II. Analysis
A. Curtilage
"[C]urtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' [citation] and therefore has been considered part of the home itself for Fourth Amendment purposes." (Oliver v. United States (1984) 466 U.S. 170, 180.) The Kaisers argue that the evidence found in their home should be suppressed because the officers unlawfully entered the curtilage of their home when they went down the stairs and into the backyard. However, the Kaisers did not present this legal theory to the trial court in their initial suppression motion. To the contrary, their motion argued that the initial warrantless entry into the residence was unlawful because the exigent circumstances and community caretaking exceptions did not apply. The curtilage theory did not arise until this court requested supplemental briefing on the issue in conjunction with the Kaisers' petition for writ of mandate. Accordingly, the curtilage argument is waived for purposes of appeal. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 ["To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised"].)
In any event, the record is not sufficiently developed to decide the curtilage issue because the trial court denied the Kaisers' request to reconsider the suppression motion and did not reopen the matter.
B. Exigent Circumstances and the Community Caretaking Exception
The trial court found that the warrantless search of the Kaisers' home was permissible because, based on the totality of the circumstances, the officers reasonably suspected that a burglary was in progress or had taken place. The Kaisers contend that the trial court erred in denying their suppression motion because neither exigent circumstances nor the "community caretaking" exception discussed in Ray justified the officers' warrantless entry and search of their residence. (Ray, supra, 21 Cal.4th at pp. 470-480.) We agree.
Warrantless searches have been upheld when police officers respond to a report of a suspected burglary and, prior to entering the residence, observe physical signs of a burglary. (See People v. Duncan (1986) 42 Cal.3d 91, 98-99 [officer responded to a report of a suspected burglary in progress at a residence, discovered a television set and other items outside an open window, and entered the building to look for the burglars]; Tamborino v. Superior Court (1986) 41 Cal.3d 919, 921-922 [officer searched a residence after receiving a report of a robbery and observing the defendant bleeding inside the residence]; People v. Bradley (1982) 132 Cal.App.3d 737 [officer responded to a report of breaking glass and footsteps from an upstairs apartment that had been burglarized twice recently, observed the broken pane, and entered the residence].) On the other hand, cases have held warrantless entry illegal where there was no probable cause to believe a crime had occurred or was occurring inside a residence, especially when the officers had no reason to believe that a victim or suspect was within the residence. (See Horack v. Superior Court (1970) 3 Cal.3d 720, 723-728 [vague and unconfirmed report of two "hippie-type" individuals with sleeping bags entering a house thought to be vacant, followed by police discovery of an expensive stereo system playing loud in a locked house showing no signs of forced entry, held not to constitute substantial evidence of burglary in progress or having occurred]; People v. Smith (1972) 7 Cal.3d 282, 287 [officer's desire to ascertain whether a six-year-old child's mother was home did not justify infringing on the mother's interest in the security and privacy of her home]; People v. Gentry (1992) 7 Cal.App.4th 1255,1258-1263 [report of a man selling marijuana from his home with no implication of burglary did not justify warrantless search].)
The present case fails to meet the standard for exigent circumstances. As an initial matter, the officers were not responding to an emergency, unlike the officers in Duncan, Tamborino, and Bradley who were responding to reports of suspected burglaries. To the contrary, the officers here went to the Kaisers' residence to conduct an inquiry into suspected narcotics activity based on a report that Officer Jacques received at some unknown time within the previous 10 days. Police officers must have compelling reasons and exceptional circumstances to justify a warrantless search when not responding to an emergency. (Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 706.) Although the subjective motivation of the officers has no bearing on our Fourth Amendment analysis (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404), the narcotics inquiry provides the proper context for judging the other facts known to the officers. (See New Jersey v. T.L.O. (1985) 469 U.S. 325, 337 ["Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place"].)
Arriving at the Kaisers' residence at 10:30 in the morning, Officer Jacques knocked on the front door, looked in the window, and observed papers and possibly some tools scattered on the floor of the living room and one bedroom. After waiting at the front door for only five to ten seconds, Officer Jacques moved around the side of the house where he discovered an open kitchen door and more papers strewn about on the table in a "very messy" manner. He knocked on the open door, yelled "San Diego Police." After waiting five to ten seconds and receiving no response, he walked down an outside staircase to the backyard. At this point he heard music coming from inside, discovered open sliding glass doors, and observed an unmade bed with clothing and bed sheets on the floor. While Officer Jacques looked for individuals in the backyard, one of his sergeants discovered that the basement door was open and yelled "San Diego Police" into it. The officers received no response and entered the home through the open basement door because they believed that a burglary or "narcotic rip" was in progress.
Although the officers stated a belief that a burglary was in progress or had taken place, they had no specific articulable facts that reasonably supported that belief. At the time of the warrantless entry, the officers had received an uncorroborated narcotics tip -- not a report of a burglary. Although the front door was closed, they discovered three open doors as they continued reconnoitering the property, a kitchen table with papers "strewn about" and a bedroom with bed sheets and clothing on the floor and music playing. It was a warm weekday morning and the officers received no response when they yelled into each open door.
Even though the officers were able to observe a large portion of the house, they saw no signs of a crime, such as forced entry, broken glass, or items stored next to a window or door. The officers saw no signs that anything had been stolen or that the home had been ransacked. They observed no movement inside the house, saw no blood, and heard no moans or screams. The officers had received no complaints from neighbors about the music and, in fact, could not hear the music from the front of the house.
The police here were on an investigative mission to find evidence of narcotics. The facts articulated by the officers and reasonable inferences there from were insufficient to constitute probable cause to believe that entry was justified to prevent imminent danger to life, serious property damage, imminent escape of a suspect, or destruction of evidence. (People v. Ramey, supra, 16 Cal.3d at p. 277.) Simply put, there was no probable cause to support any exigency.
We similarly conclude that the community caretaking exception articulated by the plurality in Ray does not apply to these facts because a prudent and reasonable officer would not have perceived a need to act in the proper discharge of his or her community caretaking functions. (Ray, supra, 21 Cal.4th at pp. 476-477.)
First, the facts here are distinguishable from those relied upon by the plurality in Ray. Unlike the officer in Ray, these officers did not articulate a "'95 percent' likelihood they had encountered a burglary or similar situation." (Ray, supra, 21 Cal.4th at p. 468.) Rather, Officer Jacques testified that he knew of three burglaries within a one-mile urban radius in the last year. This is hardly a crime spree that could have created a reasonable apprehension that a burglary was in progress or had recently occurred.
Additionally, the Kaisers' home had not one, but multiple open doors. Viewed objectively, this is suggestive of the occupants' decision to leave their doors open on a warm morning and not of a burglar's actions to enter the residence through multiple points of entry. "[Not] every open door -- even in an urban environment -- will justify a warrantless entry to conduct further inquiry." (Ray, supra, 21 Cal.4th at p. 477.)
Upholding the search of the Kaisers' home would be a substantial extension of justifiable warrantless searches. We would be holding that open doors and a messy house are enough cause to enter without a warrant, resulting in the exception swallowing the rule. In the absence of a showing of true necessity, the constitutionally guaranteed right to privacy must prevail. No such necessity exists here. Therefore the trial court erred in denying the Kaisers' suppression motion.
Given our disposition of this issue, we need not address the remaining contention regarding sufficiency of the evidence.
DISPOSITION
The judgments are reversed.
I CONCUR: McDONALD, J.,
I CONCUR IN THE RESULT: BENKE, Acting P.J.