We affirm.
On February 17, 2015, defendants Williams and Winbush were charged by information with 29 separate counts, including four felony counts of possession of fighting dogs ( Pen. Code, § 597.5, subd. (a)(1) ; counts 1-4), and 17 counts of animal cruelty ( Pen. Code, § 595, subd. (b) ; counts 5-21).
Defendants jointly filed a motion to suppress evidence seized during the search of their residential property on November 26, 2014, and to quash and traverse the warrant pursuant to Penal Code section 1538.5. The People filed opposition. The motion was heard on October 7 and 26, 2015, and concluded on November 18, 2015. We summarize the material facts as reflected in the testimony received at the hearing.
Just before 3:00 p.m. on October 29, 2014, Ed Callaway, a field officer with the Los Angeles County Department of Animal Control (Animal Control), responded to a report of a loose horse near the 7000 block of West Avenue A-14 in an unincorporated rural area of Los Angeles county, near Lancaster. When he arrived on the scene and saw the wandering horse, he saw a car swerve to avoid hitting it, and several other cars in the vicinity.
Officer Callaway approached the horse, trying not to frighten it out into traffic, but the horse headed back down Avenue A-14. He followed the horse slowly in his vehicle until the horse stopped at the property located at 7038 West Avenue A-14 (property later determined to be defendants' residence). The horse attempted to reenter the property through a side fence near where there was some sort of corral. Officer Callaway noticed there were several broken or loose boards in the fence, and presumed the horse had gotten loose from there. The horse was unable to get back into the yard.
The dogs continued barking, and the horse walked back toward the front of the property. The horse stopped near the driveway that led up to the garage attached to the home. There was an open gate in a chain link fence that abutted the side of the garage. The fence was about three feet high. The horse went through the gate but appeared to have difficulty getting into the back yard due to debris and weeds. It retreated back out to the front yard and began to eat some weeds or spilled hay on the ground near the garage. Officer
Officer Callaway called Sergeant Rachel Montez-Kemp, also of Animal Control, and told her he needed a trailer to impound a loose horse. While he waited for her to arrive, he yelled into the yard announcing his presence in case the property owner was out back. He also honked the horn of his vehicle. He got no response. Sergeant Montez-Kemp arrived about 20 minutes later with a horse trailer.
Once Sergeant Montez-Kemp arrived, they haltered the horse and placed it inside the horse trailer. The horse looked "thin." Sergeant Montez-Kemp had brought a bucket of feed, so they left the horse eating inside the trailer while they attempted to determine if the owner was at home. Sergeant Montez-Kemp has worked for Animal Control for 16 years and the department's normal procedure is to attempt to make contact with an owner of livestock before impounding an animal. Officer Callaway, who had seven years of experience, confirmed that was the department's practice.
Sergeant Montez-Kemp knocked on the front door of the home. No one answered, but she heard the distinctive sound of puppies barking from inside the home. She also knocked on the front window of the home and the garage door but got no response. Sergeant Montez-Kemp told Officer Callaway to call dispatch to attempt to call the property owners. Dispatch left a message on an answering machine after no one picked up the phone.
They heard several dogs barking in the back yard, as well as a dog barking and "whining" from inside the garage. There was a strong smell of "excessive" fecal matter. Officer Callaway looked through a broken window in the upper corner of the garage door. There was a dog inside, in conditions that appeared "unhealthful." Officer Callaway also saw a treadmill and a "slat mill" partially covered by a tarp. A slat mill is a device used in the training of fighting dogs. Officer Callaway said he was six feet one inch tall, but was a couple of inches taller in his work boots, and was able to look into the window of the garage door.
While in the back yard, Sergeant Montez-Kemp confirmed the corral with the broken boards was not suitable for the horse as it could plainly escape again and get injured or be a danger to motorists. They walked a little further into the back yard toward the kennels. She noticed that all of the dogs on the property in makeshift kennels were pit bulls, the breed most often used in dog fighting. One of the dogs had a missing lip, and another smaller female pit bull had multiple scars on her body. Another kennel contained a dog with a litter of puppies. They saw no one in the back yard.
Sergeant Montez-Kemp was familiar with defendants' property as she had been called out to the property on prior occasions, including in February 2008 on a report of excessive dogs on the property and "possible dog fighting." At that time, she found approximately 30 pit bulls on the property but defendants claimed to have the requisite permits or were in the process of obtaining them. No further action was taken. She was also aware that another Animal Control officer had been called to the property in 2010 due to a report regarding horses that were "thin" or in poor condition. The officer who responded to the property in 2010 reported numerous pit bulls were kept in kennels filled with excrement and water bowls containing mold and algae. Sergeant Montez-Kemp testified she was experienced in "blood sports" and had investigated dozens of animal fighting cases in her career.
Sergeant Montez-Kemp instructed Officer Callaway to take several photographs at the property, including the interior of the garage through the back window, and also from the window in the front garage door because he was taller than she was. Sergeant Montez-Kemp said Officer Callaway was able to see into, and take a photograph of, the interior of the garage from the broken front window without standing on anything. Sergeant Montez-Kemp also took some photographs of the kennels in the back yard.
Sometime around 5:00 p.m., defendant Williams arrived home. He told Officer Callaway the horse got loose all the time and he was unable to keep it locked up. Officer Callaway issued defendant a misdemeanor citation and impounded the horse.
On November 10, 2014, Deputy Ferrell and Sergeant Montez-Kemp went to defendants' property and drove around the perimeter
Deputy Ferrell testified he prepared his affidavit in support of the search warrant based on the written and oral reports received from Sergeant Montez-Kemp, as well as his personal observations on November 10, 2014. Deputy Ferrell explained he had 26 years of experience as a deputy sheriff and is a certified court expert in the field of "bloodsports" and illegal animal fighting. Because he knew Sergeant Montez-Kemp to be experienced in blood sport investigations, her report and statements of her observations were credible to him. He understood from Sergeant Montez-Kemp that the horse had been secured in the trailer, when she and Officer Callaway proceeded into the back yard and eventually took the photographs. He agreed her photographs of the kennels appeared to be taken "up close" as compared to his photographs taken from outside the fence.
Deputy Ferrell's affidavit identified his experience, as well as Sergeant Montez-Kemp's experience, with blood sport investigations. It summarized the observations made at the property by Sergeant Montez-Kemp and Officer Callaway on October 29, as well as the prior calls to the property. It further set forth the information concerning Deputy Ferrell's trip to defendants' property on November 10, with Sergeant Montez-Kemp, in which he confirmed the presence of the kennels. The affidavit stated, in part, that based on the breed of dog being kept on the property, "the training devices observed, and the condition in which the dogs are housed (fighting dogs used in bloodsports are kept either on individual chains or in kennels spaced closely enough to see and get near each other, but always just out of each other [sic ] reach) coupled with my observations of the location and my training and experience in bloodsports," it was his belief that evidence of an illegal dog fighting operation would be found on the property.
After the testimony of Deputy Ferrell, Sergeant Montez-Kemp and Officer Callaway was completed, defendants called Pasquale DiFabrizio to testify. Mr. DiFabrizio is a private investigator hired by defendants. He attested to the information in his report documenting the conditions on the property. He said he attempted to duplicate the photographs taken by Officer Callaway on October 29, and could only obtain similar photographs of the kennels if he was inside the back yard right next to the kennels, as they are approximately 80 feet into the middle portion of the back yard from the chain link fence near the garage. He stated the back yard of defendants' property is fully fenced with a mixture of chain link and wood boards. Mr. DiFabrizio confirmed there are windows on the front garage door, one of which is broken. The bottom edge of that window is approximately 5 feet 11 inches from the ground. Mr. DiFabrizio said he is six feet tall but could not take a photograph of
After entertaining extensive argument, the court denied defendants' motion.
Thereafter, defendants each pled no contest to one count of possession of fighting dogs ( Pen. Code, § 597.5, subd. (a)(1) ), and one count of animal cruelty (§ 597, subd. (b)).
The court sentenced each defendant to county jail for a term of three years eight months. The court suspended execution of sentence and placed both defendants on five years of formal probation on the condition that defendant Williams serve 365 days in county jail, and defendant Winbush serve 270 days in county jail. Defendants were ordered to take animal cruelty classes and were prohibited for owning or residing with any animals during the probationary period. The remaining counts were dismissed in accordance with the plea agreement.
This appeal followed.
DISCUSSION
Defendants contend the trial court erred in denying their motion to suppress and to quash and traverse the warrant. They argue the Animal
In reviewing an order denying a motion to suppress pursuant to Penal Code section 1538.5, we "uphold those factual findings of the trial court that are supported by substantial evidence." ( People v. Camacho (2000)
It is fundamental that the Fourth Amendment only protects from unreasonable searches "those areas in which a person has a reasonable expectation of privacy." ( People v. Chavez (2008)
However, not every warrantless entry to the curtilage of a home offends the Fourth Amendment. The protection afforded one's home by the Fourth Amendment " 'has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public
" ' "It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house ." ' " ( Chavez , supra ,
It is undisputed that on October 29, 2014, Officer Callaway entered the unfenced front yard of defendants' property for a legitimate purpose. Officer Callaway responded to a report of a loose horse on the road, a horse which it is undisputed belonged to defendants.
Once Sergeant Montez-Kemp arrived with the horse trailer and secured the horse inside, she and Officer Callaway made further efforts to make contact with defendants before hauling the horse away. It was reasonable for the officers to make a genuine effort to contact the property owner before formally impounding the horse. Knocking on the front door, a front window to the home, and the front garage door while calling out to see if anyone was home were reasonable tactics in that regard and did not offend the Fourth Amendment.
Defendants primarily take issue with the conduct of the officers that occurred thereafter on October 29, 2014, namely looking into the windows of the attached garage and walking into and inspecting the fenced back yard.
Respondent contends the conduct of the officers was justified by exigent circumstances. We agree.
"[T]he exigent circumstances doctrine constitutes an exception to the warrant requirement when an emergency situation requires swift action to prevent imminent danger to life." ( Rogers , supra ,
There is no " ' " 'litmus test' " ' " for determining whether exigent circumstances exist. ( Rogers , supra ,
In Chavez , an officer took a report from a woman that her boyfriend, who had previously been violent with her, had forcibly taken her car. ( Chavez , supra ,
In reversing the trial court's grant of the defendant's motion to suppress, the Chavez court explained, "the officer's observation of the revolver was not a search because the revolver was viewed in plain sight.... Defendant's fence, at approximately six feet tall, prevented only physical intrusion and not
Chavez further held that exigent circumstances justified the officer briefly jumping over the fence to secure the revolver. "By jumping the fence into defendant's side yard to secure the revolver, [the officer] acted reasonably under the circumstances to protect both himself and the child he had reason to believe was in the residence.... He did not conduct any further search while in the yard and instead did no more than was necessary to eliminate the risk posed by the gun." ( Chavez, supra ,
Under those circumstances, it was reasonable for Officer Callaway and Sergeant Montez-Kemp to be concerned there was a dog in distress inside the garage and possibly in need of immediate aid. There was nothing unreasonable about Officer Callaway standing on the front driveway and simply looking through the broken window in the garage door to determine whether the dog he heard making a whining bark was in genuine distress. Such facts "would cause a person of reasonable caution to believe that the action taken was appropriate." ( Rogers , supra ,
Moreover, Officer Callaway's conduct, like the officer in Chavez , was " 'strictly circumscribed by the exigencies which justif[ied] its initiation.' " ( Mincey v. Arizona (1978)
Defendants argue that Officer Callaway and Sergeant Montez-Kemp did not find any animals in immediate threat of injury or death, either inside the garage or in the back yard, and in fact ultimately waited several weeks to return with law enforcement, and a warrant, to impound the dogs on the
The exigent circumstances doctrine protects reasonable law enforcement conduct. Officer Callaway acted reasonably in looking inside the garage window to attempt to determine the conditions of the dog he heard inside. Simply because the dog, while living in unhealthful conditions, did not appear to be in immediate risk of death, does not mean exigent circumstances did not justify Officer Callaway's decision to look inside. ( People v. Troyer (2011)
Defendants argue there were no circumstances that justified the officers proceeding into the back yard after having looked in the garage. Given the facts known to the officers, it was not unreasonable for them to be concerned about the condition of the dogs they could hear barking incessantly from the back yard. They could have reasonably believed they were justified to walk into the back yard and briefly check on the dogs in the kennels that were visible from outside the fence.
Even assuming that Officer Callaway and Sergeant Montez-Kemp's decision to walk into the back yard and inspect the kennels was not justified by exigent circumstances, the warrant was nonetheless valid. Deputy Ferrell's affidavit contained substantial information supporting a finding of probable cause, even without the
We begin with the well-established principle that an affidavit of probable cause in support of a search warrant is presumed valid. ( People v. Scott (2011)
After excising the information provided to Deputy Ferrell by Sergeant Montez-Kemp that was obtained from her observations of the kennels while in the back yard (specifically the injuries and scarring to the dogs in the kennels), Deputy Ferrell's affidavit contained the following information: (1) Deputy Ferrell was a certified expert in blood sport investigations; (2) Deputy Ferrell personally observed, from the public roadway, the individual dog kennels located on defendants' property that were of a type used to house fighting dogs; (3) Sergeant Montez-Kemp was an experienced Animal Control
This information, without more, was sufficient for the search warrant to issue. "[L]aw enforcement officers may draw upon their expertise to interpret the facts in a search warrant application, and such expertise may be considered by the magistrate as a factor supporting probable cause." ( People v. Nicholls (2008)
We reject defendants' contention the information from Sergeant Montez-Kemp about prior calls made to defendants' property were stale and not properly considered in determining probable cause. "No bright-line rule defines the point at which information is considered stale. [Citation.] Rather, 'the question of staleness depends on the facts of each case.' [Citation.] 'If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale.' [Citation.]" ( People v. Carrington , supra , 47 Cal.4th at pp. 163-164,
Defendants have failed to show the affidavit contained any material omissions
DISPOSITION
The order denying defendants and appellants' motion to suppress evidence and to quash and traverse the warrant is affirmed.
Defendant and appellant Pauline R. Winbush's judgment of conviction is affirmed.
WE CONCUR:
RUBIN, Acting P.J.
FLIER, J.
Notes
During cross-examination, Officer Callaway conceded he wrote his report about the incident several weeks later. Because Animal Control is understaffed, he often has to delay writing incident reports in order to handle more urgent matters. He conceded he did not include anything in his written report about entering the back yard of the property or hearing the whining dogs, because the focus of his report was documenting the impounding of the loose horse.
Sergeant Montez-Kemp confirmed, on cross-examination, that she and Officer Callaway walked into the back yard together after the horse was secured on the trailer.
Los Angeles County Code section 10.32.040 makes it a misdemeanor to allow one's livestock to be loose on public land or roads. The citation issued to defendant Williams was for a violation of this ordinance.
As defendants apparently concede, no Fourth Amendment issue was raised by any of the actions on November 10, 2014, when Deputy Ferrell returned with Sergeant Montez-Kemp and made observations of the property solely from public vantage points outside the fence.