DANNY JOE TAMBORINO et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. No. 32007
Supreme Court of California
June 16, 1986.
41 Cal. 3d 919
DANNY JOE TAMBORINO et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Ronald Y. Butler, Public Defender, Frank Scanlon and William J. Kopeny, Assistant Public Defenders, James Dean Allen, Richard Aronson, Donald
No appearance for Respondent.
Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and Craig McKinnon, Deputy District Attorneys, for Real Party in Interest.
Thomas W. Sneddon, Jr., District Attorney (Santa Barbara), and Gerald McC. Franklin, Senior Deputy District Attorney, as Amici Curiae on behalf of Real Party in Interest.
OPINION
LUCAS, J.—In this case, evidence of a narcotics violation was discovered and seized by a police officer while he was walking through defendants’ apartment investigating a robbery report. Defendants unsuccessfully moved to suppress the evidence on the ground that it was seized during an unreasonable, warrantless search of the apartment. As will appear, we hold that the limited “walk-through” search was conducted under exigent circumstances excusing the officer from first obtaining a search warrant.
Defendants Tamborino and Smith are charged with possessing cocaine for the purpose of sale (
I. The Facts
On November 12, 1983, Officer Klein, a Newport Beach police officer with four years’ experience, received a radio call reporting a robbery at a
Klein knocked on the door to the apartment and loudly identified himself as a police officer. Receiving no response, Klein waited a minute or two and knocked again. The officers heard some sounds of movement inside the apartment. Believing that the situation required prompt action, Klein kicked in the door. He then saw defendant Tamborino in the living room walking toward the front door. He was wearing a bathrobe, was barefoot, and had quite a bit of blood on his head, neck and hands. He was holding his head and seemed to be bleeding from the right side of his face, although not profusely.
Officer Klein testified that at that point he was not sure whether Tamborino was a suspect or a victim and that, for his own safety, he brought Tamborino out of the apartment and handcuffed him. After determining that the wound did not appear serious, Klein immediately reentered the apartment. His main concern was to determine whether there were any other injured persons inside; he did not stop to ask any questions of Tamborino or to “try[] to figure out what had happened at that point.”
As he walked through the apartment, Officer Klein observed, in plain view on the living room coffee table, cocaine residue (“a white powdery residue ... in line forms“) and some narcotics paraphernalia. He also noticed some marijuana, a weighing scale and a substance used as a “cutting agent” for cocaine.
Klein brought Tamborino back into the apartment and questioned him. According to Tamborino, his assailant had come to the apartment, asked for Joe (evidently Tamborino‘s roommate, codefendant Smith), and attacked Tamborino with a knife. (A bloody knife was found on the living room sofa.)
Paramedics were called to attend to Tamborino. Smith arrived soon thereafter, and the officers asked both men to consent to a house search, which was refused. Officer Klein called narcotics officers to the scene to assist in the investigation and he informed Smith that he would be detained while a search warrant was sought. A narcotics officer likewise told Smith that “I was going to petition for a search warrant and was going to call the on-call weekend D.A.” Smith thereupon gave his consent to a search “because
II. Discussion
Defendants do not challenge the propriety of Klein‘s action in kicking in their apartment door after receiving no response to his knock. They do contend, however, that Klein should not have entered after confronting Tamborino because Klein had no articulable reason to believe that additional injured persons (or suspects) remained in the apartment. We reject the argument, believing that under the facts presented here, the trial court could reasonably find that in light of the exigencies of the situation, the officer‘s limited intrusion into defendants’ apartment was justifiable.
We have held that during a lawful search of the premises for suspects, police officers may seize contraband found in plain sight during the search. (People v. Block (1971) 6 Cal.3d 239, 243 [103 Cal.Rptr. 281, 499 P.2d 961].) In Block, we observed that “the reasonableness of an officer‘s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.]” (Id., at p. 244.) We further explained that in determining whether the officer acted reasonably, “due weight must be given not to his unparticularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. [Citations.]” (Ibid.)
Defendants contend that the present search was invalid because Officer Klein could point to no specific or articulable facts indicating that a second victim or suspect might be present in the apartment. But the observation of Tamborino, wounded and bleeding, coupled with the earlier report of a robbery, constituted “articulable facts” that reasonably could have led the officer to decide that an immediate, brief search of the apartment was warranted to determine whether additional persons were present at the crime scene. Officer Klein had no prior information indicating that only one victim was involved in the robbery, and in light of the situation he confronted, ordinary, routine common sense and a reasonable concern for human life justified him in conducting a walk-through search truly limited in scope to determining the presence of other victims. Nothing in the record suggests that the officer had any hidden additional motive, such as searching for drugs or contraband, in conducting the search, and the trial court—after
The general principles surrounding warrantless entry were summarized by the United States Supreme Court as follows: “We do not question the right of the police to respond to emergency situations. ... Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.” (Mincey v. Arizona (1978) 437 U.S. 385, 392 [57 L.Ed.2d 290, 300, 98 S.Ct. 2408], italics added, fns. omitted.) Although Mincey involved the search of a homicide scene, comparable principles would govern a search of the scene of a robbery involving a wounded victim.
The California courts are in full accord with the foregoing emergency exception to the warrant requirement. (See People v. Hill (1974) 12 Cal.3d 731, 755 [117 Cal.Rptr. 393, 528 P.2d 1] [search for additional wounded persons]; People v. Roberts (1956) 47 Cal.2d 374, 378 [303 P.2d 721]; People v. Keener (1983) 148 Cal.App.3d 73, 77 [195 Cal.Rptr. 733]; People v. Dickson (1983) 144 Cal.App.3d 1046, 1062-1063 [192 Cal.Rptr. 897].)
As an appellate court recently stated, “There is no ready litmus test for determining whether a particular situation negates the constitutional requirement of a warrant. [Citation.] In each case the claim of exigent circumstances must be evaluated on its particular facts. Where there is reasonable cause to believe additional suspects or potential victims are in a residence, a warrantless entry is permissible. [Citations.]” (People v. Keener, supra, 148 Cal.App.3d 73, 77.) Under the particular facts of the present case, we conclude that the discovery of one wounded victim afforded reasonable cause to enter and briefly search for additional victims. Although unhurried reflection might have led another officer to conclude that Tamborino should have been questioned before even a superficial search was conducted, Officer Klein could reasonably have concluded that he did not enjoy that luxury, and that immediate action was warranted.2
In view of our conclusion, we do not reach the People‘s alternative contention that defendants’ eventual consent to a search of their apartment cured any illegality arising from the initial entry.
The peremptory writ of mandate is denied.
Mosk, J., Broussard, J., and Reynoso, J., concurred.
On the other hand, failure to make inquiry may be reasonable when the risk of delay appears to be substantial, as where human safety is at stake, and where the circumstances are such as to cast doubt upon the reliability of the response. Here, the officer testified that he was uncertain whether Tamborino was a victim or suspect—a circumstance clearly creating doubt as to the reliability of response—and that he was wounded and bleeding, holding his head. Though the trial court commented that Tamborino was “obviously” a victim, because of his attire, that court also found nonetheless that the officer‘s conduct was reasonable under all the circumstances.
On the peculiar facts of this case, I agree with the trial court, and consequently with the majority. It may be “obvious” in the cool reflection of hindsight that Tamborino was a victim, but the trial court impliedly found that the police officer‘s contrary view was in good faith and that, under all the circumstances, his actions were reasonable. Given the urgency of the situation as reasonably perceived by the officer, I believe it is appropriate to give him the benefit of the doubt.1 The event may not have been a pajama party, but then it cannot always be assumed that burglars will come to a burglary properly attired for the task.
BIRD, C. J., Dissenting.—Does a victim of a crime relinquish the privacy of his home merely because he is injured in the course of a crime committed there? The majority say yes. I must respectfully dissent.
In the area of Fourth Amendment guarantees, the courts have a vital obligation in warrantless search cases to ensure that citizens’ rights are not unreasonably invaded by police activity. As this court has recognized, “‘We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade [] privacy in order to enforce the law. ... We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.‘” (People v. Sirhan (1972) 7 Cal.3d 710, 738 [102 Cal.Rptr. 385, 497 P.2d 1121], original italics, quoting McDonald v. United States (1948) 335 U.S. 451, 456 [93 L.Ed. 153, 158, 69 S.Ct. 191], italics added; see also People v. Block (1971) 6 Cal.3d 239, 244 [103 Cal.Rptr. 281, 499 P.2d 961], citing Terry v. Ohio (1968) 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 88 S.Ct. 1868].)
“Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” (Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2d 290, 298, 98 S.Ct. 2408].) Police claiming a search was properly conducted without a warrant “must be able to point to specific and articulable facts from which [they] concluded that [the] action was necessary.” (People v. Block, supra, 6 Cal.3d at p. 244, italics added; People v. Carney (1983) 34 Cal.3d 597, 611 [194 Cal.Rptr. 500, 668 P.2d 807], revd. on other grounds (1985) 471 U.S. 386 [85 L.Ed.2d 406, 105 S.Ct. 2066].)
Furthermore, in reviewing such searches, one must keep in mind that “[h]omes are afforded the maximum protection from warrantless searches and seizures. [Citations.] The ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.‘” [Citations.]” (People v. Carney, supra, 34 Cal.3d at p. 607.)
A neighbor advised the officers that the injured victim was inside the apartment. After knocking and announcing their presence, the officers waited one to two minutes, and, receiving no response, kicked in the door. They then saw petitioner walking barefoot towards the front door. He was bleeding from his head and was clad only in a bathrobe which had blood on it. At this point, Officer Klein was “not sure whether Tamborino was a suspect or a victim ....” (Maj. opn., ante, at p. 922.)1
After confronting petitioner, the police asked him to step outside onto the balcony. He complied and was placed in handcuffs. The police made no attempt to ask him whether other victims were inside. Instead, without petitioner‘s consent, Officer Klein “sweep searched” the apartment for other victims. Throughout this incident Tamborino remained fully capable of answering any questions the officers might have had about the robbery. Indeed, they learned details about it when they interrogated him—after sweep searching the apartment.
The majority attempt to justify the police action in this case under an exception to the warrant requirement first recognized in People v. Roberts (1956) 47 Cal.2d 374 [303 P.2d 721]. Roberts permits authorities to make warrantless searches of premises to the extent “reasonably necessary to determine whether a person [is] actually in distress somewhere in the [dwelling].” (Id., at pp. 378-379, italics added.)
Roberts is one of the few “specifically established and well-delineated exceptions” (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507]) that the courts have engrafted upon the Fourth Amendment‘s general proscription against warrantless searches and its counterpart in article I, section 13, of the California Constitution. (People v. Dickson (1983) 144 Cal.App.3d 1046, 1059-1061 [192 Cal.Rptr. 897].) These exceptions recognize that there may be situations in which compliance with the warrant requirement is impossible or impracticable and in which
The Roberts exception permits a warrantless search only when it is “reasonably necessary to determine whether a person [is] actually in distress somewhere in the [dwelling].” (Roberts, supra, 47 Cal.2d at pp. 378-379, italics added.) To validate a search under this exception, the police must show that (1) their perception that an emergency existed was an objectively reasonable one (id., at p. 377) and (2) the action they took in response to that emergency reasonably appeared necessary under the circumstances. (Id., at pp. 378-379; People v. Block, supra, 6 Cal.3d at pp. 244-245.) This second requirement is nothing more than an application of the general principle that police action taken in response to any emergency must be no more intrusive upon constitutionally protected rights than the emergency requires.
In the instant case, the police action satisfied neither prong of this two-part test. As petitioner concedes, a sufficient emergency existed to justify kicking open the door, but once the officers found Tamborino, any urgent need to search for victims ended. Secondly, even assuming that an emergency continued after the officers observed Tamborino, the sweep search was not “necessary.” Petitioner could have provided the police with information about additional victims for whom they claimed they were searching.
When the police encountered Tamborino, he was dressed in a manner which clearly indicated that he was a resident of the dwelling. His injuries signaled that he was a victim of the reported robbery. At this point, “the exigency end[ed], [and] the warrant requirement reemerge[d].” (People v. Keener (1983) 148 Cal.App.3d 73, 78 [195 Cal.Rptr. 733]; see People v. Frazier (1977) 71 Cal.App.3d 690, 694 [139 Cal.Rptr. 573].)
The police had absolutely no articulable factual basis for believing that other persons were inside the apartment. The dispatcher‘s report did not indicate multiple victims. Tamborino‘s neighbor gave no indication that more than one victim was involved in the robbery. In short, there was nothing more than the ever-present possibility that other victims might be present.
No different result should obtain when the only apparent crime victim is safely in police custody and no reason for sweeping the residence for additional victims or suspects appears. To sanction sweep searches in such instances justifies police action based on nothing more than “unparticularized suspicions or ‘hunches‘” (People v. Block, supra, 6 Cal.3d at p. 244) which, ironically, the majority concede is insufficient. (Maj. opn., ante, at p. 923.)
Today‘s majority in one breath pay lip service to these well established principles, but virtually undermine them in the next. They hold the government no longer need articulate a factual basis for a warrantless residential intrusion. Instead, we are told that “ordinary, routine common sense” and “concern for human life” (maj. opn., ante, at p. 923) are adequate justifications for police action even though the record is devoid of such objective factual bases. Now “hunches” or “suspicions” are adequate for such a search, provided the officer takes care to characterize them as an exercise in “routine common sense.” The sanctioning of such semantic games seriously undermines formerly inviolable constitutional protections.
The majority‘s subversion of the rule requiring specific articulable facts in support of exigent circumstances marks the beginning of a new era of warrantless searches in this state. A review of prior state and federal decisions illustrates this point.
In People v. Carney, supra, 34 Cal.3d 597, the court was faced with a warrantless sweep search of a motor home. The police had commenced
This court held that the search of the motor home4 could not be justified under the “protective sweep” doctrine, which permits a search of premises without a warrant for additional subjects under certain limited circumstances. The police had failed to establish that they had a reasonable belief based upon specific, articulable facts that persons other than the accused were inside the motor home. (34 Cal.3d at pp. 612-613.) The court recalled that in Dillon v. Superior Court, supra, 7 Cal.3d at page 314 “we held that the mere possibility that others might be inside the house based on the fact more than one person lived there was insufficient to support a protective sweep search.” (Carney, supra, 34 Cal.3d at p. 613.)
The most significant feature of Carney is its observation that “[if] the officers had been truly concerned for their safety, it would have been elementary for them to have asked the [informant] who had just left the motor home how many people were inside. ... This is not to say, of course, that had the [informant] stated defendant was alone, the officers would have been required to trust his response. ... In any event, any response would simply have been another factor for the officers to consider in determining whether there was reasonable cause under the totality of the circumstances to believe others were inside the motor home.” (34 Cal.3d at p. 613 and fn. 9.)
The fact that these factors led the court in Carney to reject the government‘s “protective sweep” justification for its warrantless search illustrates how far today‘s majority stray from recognized principles governing warrantless searches of dwellings.
In People v. Superior Court (Peck), supra, 10 Cal.3d 645, police officers responded to a burglary call at an apartment building. A resident of the apartment complex reported seeing a person crawling through the rear window of a neighboring apartment. Arriving at the scene, police went to the
The Attorney General in Peck advanced three arguments, similar to those advanced here, to justify the warrantless search. (Id., at p. 650.) First, the state argued, Peck himself might have been the burglar. This court found those suspicions dispelled by the manager‘s confirmation that Peck lived in the apartment. Next, the Attorney General argued, there may still have been a burglar in the apartment of which Peck was unaware. The court rejected this claim, however, since Peck had explained that he was the unidentified man who had entered through the rear window. Finally, the state asserted, a burglar may have been holding Peck hostage. The court rejected this reasoning as well, since Peck‘s act of stepping out of the apartment indicated that he was free to leave. (Ibid.)
If nothing more, Peck indicates the importance of an officer making inquiries when he believes there is an urgent need to conduct a warrantless search. Today‘s ruling teaches that the officer in Peck should not have asked questions, since the answers thereto undermined any asserted justifications to search the apartment. Had that officer merely handcuffed the resident, as the police did here, today‘s majority might have found the search there permissible.
Finally, in United States v. Dugger, supra, 603 F.2d 97, a case remarkably similar to this one, the Ninth Circuit Court of Appeals invalidated a warrantless search claimed to be justified by exigent circumstances. There, police responded to a report of a fist-fight at an apartment complex. The police arrived about one hour after the fight had ended and interviewed the alleged victim. “The officers then followed a trail of blood leading from [the victim] back to Dugger‘s apartment, where they observed blood on the front door and keys in the lock. They rang the doorbell ‘two or three times,’ but heard no response from inside. Then, one of the officers, uninvited, turned the key, pushed the door open, and stepped back away from the open door. The officers then called to Dugger and identified themselves as being from the sheriff‘s department. They heard no immediate response. Then, a male within the apartment called out that he was putting on his shoes and would be right out.” (603 F.2d at p. 98.)
The district court had justified the warrantless entry on grounds of exigent circumstances and “the need to determine if anyone needed immediate medical attention.” (Ibid.) The court of appeals rejected that reasoning under the “clearly erroneous” standard of review. (603 F.2d at pp. 99-100.) The court reasoned that “‘the scope of the warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement.‘” (603 F.2d at p. 99, quoting Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L.Ed.2d 900, 905, 906, 93 S.Ct. 2000].) “[O]nce the officers heard Dugger respond from within that he was coming outside as soon as he put on his shoes, any excuse of an emergency dissipated.” (Dugger, supra, at pp. 99-100.)5
The similarities between Dugger and the instant case are too obvious to belabor. There, as here, the police were presented with no indication that other persons were in the dwelling. The Ninth Circuit was simply unwilling to uphold that search merely based on “conjecture.” (Id., at p. 100, fn. 5.) Today‘s majority depart from this logical view and hold that such conjecture is a proper basis for upholding a search, provided it is couched in terms of “routine common sense.”6
Settled principles of law in this area, emanating from two lines of cases, have established the ways in which a sweep search may be “necessary” in a Roberts-type situation. The first line of cases involves situations in which police arrive at a crime scene and suspect that injured victims are inside but no one is present to give such information. (People v. Hill (1974) 12 Cal.3d 731, 755 [117 Cal.Rptr. 393, 528 P.2d 1]; People v. Roberts, supra, at pp. 378-379; compare United States v. Dugger, supra, 603 F.2d at p. 100, fn. 5.) In these cases, courts have upheld limited searches for victims within the premises on the ground that such searches were “the only practical means of determining whether there was anyone inside in need of assistance.” (Hill, supra, 12 Cal.3d at p. 755.)
The second group of cases involves sweep searches for victims where the only available information about the incident would come from a suspect. In these cases, the search was justified by the fact that the suspect could not reasonably have been expected to give an honest response to police inquiries. (See, e.g., People v. Block, supra, 6 Cal.3d 239; People v. Keener, supra, 148 Cal.App.3d at p. 76; cf. People v. Carney, supra, 34 Cal.3d at p. 613.)7
The present case falls within neither of the two lines of authority noted above. Employing the Hill rationale, Officer Klein was not faced with a
As to the Block rationale, the trial court found that Tamborino simply “could not be a suspect” since he was obviously an occupant of the apartment and a victim of the robbery. It is not surprising that this critical factual finding is ignored in an attempt to justify the trial court‘s ultimate ruling.
The majority hold that when an officer believes that an “emergency” exists, the courts should be reluctant to question whether he or she acted “reasonably” with regard to protected Fourth Amendment rights. Apparently the officer need not confine his or her conduct to that which is “necessary” to preserve and protect life. (See maj. opn., ante, at p. 924 & fn. 2.)
As the above-cited cases illustrate, every court which has permitted “emergency” sweep searches for injured persons or suspects—including those cited by the majority—has required to date a particularized showing that the police action was reasonably necessary in light of the circumstances. The majority‘s “reluctance to second guess split-second decisions of officers faced with potentially dangerous situations” (maj. opn., ante, at p. 925) seemingly abandons any requirement that the police make the “reasonably necessary” showing. Under the majority‘s holding, whenever an officer perceives an “emergency,” the courts will not question his or her actions.
In addition, the majority‘s holding is not mandated by “routine common sense” or a “concern for human life“—the justifications my brethren assert for the warrantless intrusion. Existing exceptions to the warrant requirement already accommodate such reasoning.
The law in this area represents a delicate but necessary balance between the legitimate needs of law enforcement and a person‘s reasonable expectation of privacy. That balance is preserved by excusing Fourth Amendment compliance in Roberts situations only when “reasonably necessary.” Today‘s majority upset that balance, undermining the Constitution in the process. Henceforth, in order to escape the Constitution‘s warrant requirement, an officer need merely claim that the crime victim appeared to be a suspect—no matter how unreasonable that contention—and cite the ever-present possibility of additional individuals inside the dwelling.
In sum, my colleagues dilute the protection of the reasonableness standard in order to accommodate a weak factual showing of necessity in this partic-