Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF113786A, Stephen P. Gildner, Richard J. Oberholzer, and Jerold L. Turner, Judges.
Judge Gildner presided over the suppression hearing. Judge Oberholzer presided over appellant’s change of plea hearing. Judge Turner sentenced appellant.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
INTRODUCTION
On December 27, 2006, an information was filed charging appellant, William Von Adrian Robinson, with kidnapping (Pen. Code, § 207, subd. (a), count one), sexual battery (§ 243.4, subd. (a), count two), assault with a firearm (§ 245, subd. (a)(2), count three), and being a felon in possession of a firearm (§ 12021, subd. (a)(1), count four). Count one alleged Robinson used a handgun during the kidnapping (§ 12022.53, subd. (b)) and count two alleged Robinson personally used a firearm during the sexual battery (§ 12022.5, subd. (a)). The information alleged an enhancement for serving a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
On February 16, 2007, the trial court heard and denied Robinson’s motion to suppress evidence. Robinson entered into a plea agreement whereby he would admit count four, receive no more than two years in prison, and the remaining allegations would be dismissed. Defense counsel stipulated to a factual basis to the plea based on the investigator’s reports and the preliminary hearing transcript. After being advised of his constitutional rights pursuant to Boykin/Tahl and the consequences of his plea, Robinson pled no contest to count four, being a felon in possession of a firearm.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On February 21, 2007, Robinson was sentenced to prison for the midterm of two years, ordered to pay a restitution fine, and granted 503 days of custody credits. On appeal, Robinson contends the trial court erred in denying his suppression motion because investigators entered his residence without sufficient exigent circumstances to allow entry without a search warrant.
FACTS
At the beginning of the suppression hearing, the prosecutor stipulated that when police officers entered Robinson’s residence, Robinson had a reasonable expectation of privacy and that police officers entered without a search warrant. Officer Adam Ketchum was on duty with the Bakersfield Police Department on February 24, 2006, when he received a dispatch at 3:58 a.m. to go to an apartment complex on South H Street. The initial dispatch stated there was a 911 hang-up call. A female voice whispered to the dispatcher, “Send police, please hurry.”
The facts are derived from evidence presented at the suppression hearing.
Ketchum walked up to the apartment door, knocked, and announced, “Bakersfield Police, open the door.” A male voice yelled back, “Who is it?” Ketchum again identified himself as a police officer. Ketchum knocked on the door a second time.
Linda L., who was wearing only a towel, opened the door and ran toward Ketchum. Linda L. said, “He hit me.” Later Ketchum testified that Linda C. told him Robinson had just hit her. Ketchum could see a big red mark on Linda L.’s forehead. Ketchum told Linda L. to step out of the way. As she did so, Ketchum saw Robinson walking toward the living room from a back bedroom. Ketchum described the mark on the victim’s forehead as a swollen, fresh mark. Ketchum believed this was a domestic violence situation.
Ketchum ordered Robinson to stop and to show his hands. Robinson complied. Ketchum entered the apartment and contacted Robinson. Linda L. yelled at Ketchum that Robinson had a gun. She made the comment just as Ketchum was contacting Robinson. Ketchum then detained Robinson. At the preliminary hearing, Ketchum testified that his partner, Officer Drewery, found a gun in the apartment. Once inside the apartment, Ketchum discovered there was another female in the back bedroom.
The prosecutor did not introduce the preliminary hearing transcript into the record of the suppression hearing, nor did the trial court indicate it had read the preliminary hearing transcript. Different judges presided over the preliminary hearing and the motion to suppress evidence. We therefore note that any additional evidence adduced at the preliminary hearing was not before the trial court when it ruled on the suppression motion.
The trial court sustained an objection to this statement by defense counsel on relevancy grounds. Though we find this information relevant, we recognize that the trial court did not rely upon it in its ruling.
DISCUSSION
Appellant contends the trial court erred in denying his suppression motion because there was not an exigent circumstance that would have justified Ketchum’s entry into the apartment without a search warrant. Appellant argues that Linda L. had left the apartment and he was compliant with the order of the officer to show his hands. Appellant further argues that once Linda L. exited the apartment, the exigency ceased. Respondent replies that exigent circumstances related to Linda L.’s safety justified Ketchum’s entry into the apartment.
In reviewing a suppression motion, appellate courts defer to the trial court’s factual findings where they are supported by substantial evidence. On appeal, we exercise independent judgment to determine whether, under those facts, the search was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Absent exigent circumstances, warrantless entry inside a residence is presumptively unreasonable under the Fourth Amendment. (Groh v. Ramirez (2004) 540 U.S. 551, 559.) Warrants are generally required to search a person’s home unless exigencies of the circumstances make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394.) Exigent circumstances include emergency situations requiring swift action to prevent physical harm to a person, serious property damage, the imminent escape of a suspect, or the destruction of evidence. (People v. Ramey (1976) 16 Cal.3d 263, 276.)
An action by law enforcement officers is reasonable under the Fourth Amendment, regardless of an officer’s state of mind, as long as the circumstances, viewed objectively, justify the officers’ action. (Brigham City v. Stuart (2006) 547 U.S. __ [126 S.Ct. 1943, 1948] (Brigham City).) “[L]aw 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.” (Id. at p. 1947.) In Brigham City, the officers, who were standing outside, heard commotion inside a residence. When the officers looked through a window, they saw adults attempting to hold a juvenile whose fists were clinched. The juvenile broke free and hit an adult in the face, sending the adult to the sink spitting blood. (Id. at p. 1949.) The United States Supreme Court found as follows:
“In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone ‘unconscious’ or ‘semi-conscious’ or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.” (Ibid.)
A case factually closer to the instant action than Brigham City is People v. Frye (1998) 18 Cal.4th 894 (Frye). When the officers in Frye arrived at apartment buildings without a warrant, they were responding in the early morning hours to a report of domestic violence. After knocking on the defendant’s door, they saw the victim with a bruised, swollen face and saw what appeared to be blood on the outside of the door. When the officers asked the victim who injured her, she stepped outside the door and pointed to the defendant, who was still inside the apartment. (Id. at p. 989.)
The Frye court held that in light of the facts then known to the officers, “they could reasonably have concluded that immediate action was necessary.” (Frye, supra, 18 Cal.4th at p. 989.) Frye further held that had the officers left the scene to obtain a warrant, there was a significant risk that the victim would have suffered additional harm and would have posed a safety risk to the victim and the officers. (Id. at pp. 989-990.) Frye found the officers’ warrantless entry into the apartment to be objectively reasonable, justified by exigent circumstances. (Id. at p. 990; also see People v. Higgins (1994) 26 Cal.App.4th 247, 254-255 (Higgins) [delay in actual case of domestic violence would potentially subject the victim to further risk of physical harm].)
Although the victim in Frye had left the apartment, our Supreme Court did not find the exigency had ended. The facts here are nearly identical to those in Frye, with two notable differences that make this a stronger case for application of the exigent circumstance exception. There is no indication that the victim in Frye was wearing only a towel. In the instant case, Linda L. ran out of the apartment wearing only a towel. Not only was she vulnerable and not clothed at 4:00 in the morning, she had no immediate access to her clothing except by police intervention.
The second difference between this case and Frye is Linda L.’s comment that appellant had a gun. This made police intervention and entry into appellant’s residence more compelling because his potential to commit even greater violence was enhanced because of his possession of a firearm.
Appellant compares his case to People v. Ormonde (2006) 143 Cal.App.4th 282, 295 (Ormonde), which held that an officer’s knowledge of and past experience with domestic violence cases does not justify warrantless entry into a home and that such a rule “would be tantamount to creating a domestic violence exception to the warrant requirement.” In Ormonde, officers were dispatched to the scene of domestic violence. Officers were then directed from the location of the victim to a different residence where the suspect, Olson, was located. (Id. at p. 286.)
The officer in Ormonde opined that such cases were among the most dangerous and highly unpredictable investigations an officer could make. (Ormonde, supra, 143 Cal.App.4th at p. 286.) The officer encountered Olson outside a residence. (Ibid.) The officer could see through parts of the residence, but not all of it. (Id. at p. 287.) The officer explained he felt vulnerable and believed his safety, as well as that of the other officers, would be jeopardized if he did not conduct a protective sweep. (Ibid.)
The officer in Ormonde announced he was with the Santa Clara Police Department and entered the residence. He did not knock on the door. The defendant, a woman, and a young girl stepped into the room. The officer explained he was investigating domestic violence. The officer conducted no search and went outside with the defendant, the woman, and the child. The officer asked the woman and the child if they wanted to go back inside and they did so. The officer told the defendant that Olson had committed some kind of domestic violence crime and the police were there to arrest Olson. The defendant stated he was Olson’s friend, he knew the woman, but he knew nothing about domestic violence. (Ormonde, supra, 143 Cal.App.4th at p. 287.)
Before or during this conversation, the officer received information that Olson used methamphetamine. (Ormonde, supra, 143 Cal.App.4th at p. 287.) The officer asked the defendant for permission to search the kitchen for items belonging to Olson. The defendant gave permission for a limited search. (Id. at pp. 287-288.) The officer searched the kitchen and found a small amount of marijuana and a cut straw used to ingest drugs. (Id. at p. 288.) The officer continued to ask permission to search the residence, and did so, after confronting the defendant about being a drug dealer. Eventually, the defendant went inside the house with the officers and showed them where he stored drugs. (Ibid.)
There were other facts in Ormonde that completely removed the case from the exigent circumstance exception. Police knew that Olson was the perpetrator of domestic violence, but they also knew that Olson’s wife, the victim, was not inside the same residence as Olson. She was safely away from the premises. (Ormonde, supra, 143 Cal.App.4th at p. 291.) No officer who testified at the suppression hearing articulated any reason to believe that other victims or suspects were involved in the battery of the victim. (Ibid.)
We find the facts of Ormonde completely inapposite to those of the instant action. The Ormonde court correctly found no basis to apply the exigent circumstances exception and it also correctly rejected application of the protective sweep rule. (Ormonde, supra, 143 Cal.App.4th at pp. 292-293.) The police search of the residence in Ormonde was conducted on a false pretext of domestic violence under circumstances in which the investigating officers knew the victim was in another location. Olson was outside the residence officers searched when they arrived at the scene and had apparently been arrested long before the search of the defendant’s residence.
Here, the call to the dispatcher was whispered with a sense of urgency, “Send police, please hurry.” From this, investigating officers could reasonably infer the female who made the 911 hang-up call was in danger. When police arrived to the scene and announced themselves, a male voice yelled back asking who was there. The officers knocked on the door and announced themselves a second time before the door was opened. Linda L., who was not dressed, ran out of the apartment wearing only a towel, seeking protection from the officers. The officers observed a fresh red and swollen bruise on Linda L.’s forehead. As Linda L. exited the apartment, she announced the appellant had hit her, or that he had just hit her. Moments later, as officers were approaching appellant, Linda L. told the officers that he had a gun. These events all occurred rapidly.
The facts of this case bear no resemblance to those in Ormonde. The officers here had little time to reflect as the victim ran out of the residence. It would be improper for us, under these facts, to second-guess the officers’ response to a quickly developing situation. Officers are entitled to use common sense when responding to perceived emergencies. (Higgins, supra, 26 Cal.App.4th at p. 254.) We find that the facts supporting an exigency are supported by the circumstances of the victim who was wearing only a towel, her obvious fear of the appellant, her very recent and clearly visible injury, and the information she conveyed to the officers as they were approaching the appellant that he had a gun.
Appellant contends that once appellant held out his hands and showed compliance, that the exigency ended and the officers violated the Fourth Amendment by crossing the threshold. Appellant argues the officers should have ordered him out of the residence rather than entering it themselves. In Frye, where a victim showing injuries also stepped out of the apartment, the Supreme Court did not find the exigency ended when the victim exited the residence. The victim in Frye was apparently clothed. The exigency here was arguably more factually compelling than in Frye because Linda L. was only wrapped in a towel and, within moments after officers learned she was injured by appellant, they also learned appellant had a gun. Indeed, entry back into the residence was justified to provide Linda L. shelter and the opportunity to clothe herself. (People v. Wilkins (1993) 14 Cal.App.4th 761, 772.) To secure the residence for Linda L. as well as for the second female, the officers were justified in retrieving the gun as part of an ongoing exigency.
Our Supreme Court did not mandate that the officers order the suspect out of the residence as appellant argues here. Frye found that the officers’ entry into the residence was objectively reasonable, justified by exigent circumstances and that the exigency did not end when the victim exited the residence. The officers there were permitted to enter a residence without a warrant to ensure the victim’s safety as well as their own. (Frye, supra, 18 Cal.4th at p. 990.) We are bound by the decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Although unhurried reflection may have led another officer to take a different approach, the officers here could reasonably have concluded that they did not enjoy such luxury and that immediate action was warranted. (Higgins, supra, 26 Cal.App.4th at p. 254.)
The officers in the instant action were not using domestic violence as a pretext to search the appellant’s apartment, as occurred in the Ormonde case. We find the officers’ entry into appellant’s residence to be objectively reasonable, justified by exigent circumstances.
DISPOSITION
The judgment is affirmed.