Fredrickson v. Superior Court

Filed 3/5/08 Fredrickson v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT

ORIGINAL PROCEEDINGS; petition for writ of mandate.

Eric A. Dumars, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Jeffrey D. Firestone, Deputy Attorney General, for Real Party in Interest.

-ooOoo-

BACKGROUND

Petitioner stands accused in the above referenced superior court case of possessing controlled substances (heroin and methamphetamine), possessing drug paraphernalia, and unlawfully possessing a hypodermic needle.

Within 60 days of her arraignment in superior court, she filed a written motion to suppress the evidence discovered during what she claims was an unlawful search of her residence. Her motion presented the following general arguments without applying them to the facts of her case: (1) the detention is unlawful for lack of reasonable suspicion; (2) illegal seizure of property; (3) fruit of the poisonous tree; (4) failure to get a search warrant; (5) illegal entry into a home; (6) Harvey/Madden;^[1](7) demand warrant; and (8) illegal search.

According to petitioner, the People did not file any written opposition.

At the September 14, 2007, hearing on the motion, the People presented the testimony of the City of Merced dispatcher who received the telephone call that ultimately resulted in the search of petitioners home. The dispatcher testified that, on November 22, 2006, at 6:39 and 42 seconds in the evening, she received a call from a phone on a business line [that] has no caller ID or indication where the call is coming from. This made it appear that the department received the call on a business line, rather than a 911 line.^[2] The unidentified male caller told the dispatcher, You might want to send a cop to 419 23rd Street. I heard someone like theyre getting beat. The dispatcher tried to ask the caller if the address was East or West but he hung up before she could do so. The call lasted only six to eight seconds. The caller did not mention the City of Merced.

The dispatcher entered the message into their CAD (computer-assisted dispatch) system. She explained that we send a call to the officers in their car and air it because it is considered an in-progress priority call. The departments log shows her dispatch went out roughly 30 seconds after she received the message from the male caller.

Because she did not know if the address could be East or West, she used their global system and with two key strokes was able to ascertain whether they had had any prior contact with either address. She began with West because she knew there was a park on the East side. Her query revealed prior contacts with the West address so she knew it was a valid address. She was not asked to describe and did not volunteer the nature of those prior contacts. She then did the same thing with East and learned that they had no prior contacts with such an address. Just to be sure, she pulled out a map and discovered they did not have a 419 East 23rd St. or 23rd Street, as well. So, she told the officers to go to 419 West 23rd Street first.

The police log also shows officers arrived at 419 West 23rd Street at 6:41 and 22 seconds--less than two minutes after the call first came in. One of the two officers who responded testified that he went to that address because there was a telephone report of hearing a fight. On his arrival, he found the front door open and a bicycle out in the front yard. He walked up to the front door and announced his presence.

A female, later identified as petitioner, came to the door from what officers would later learn was the only bedroom in the house. The officer told her why he was there--although he said a male caller said he needed the police, possibly might have been assaulted. He also told her they only had information saying it was 419 23rd Street so they did not know whether it was East or West. But dispatch advised him, before he got to the West address, that there was no East 23rd Street address with that number. The officer asked petitioner if he could go inside to be sure everything was okay. She told him, No because there was no one else there. The officer told her that he and another officer were going to do a protective sweep to check it out anyway. He told her he wanted to be sure there was no one inside that was hurt or injured.

As the primary officer went into the kitchen, petitioner headed back to the bedroom. Finding no one in the kitchen, the officer also went to the bedroom. He entered just in time to see petitioner grabbing items off a nearby table. She had a plastic bindle in her hands and was trying to empty it. The officer also noticed a glass pipe typically used to smoke methamphetamine remained on the table.

Petitioners only testimony was that she lived at the address in question.

The People maintained the entry of the residence was justified as a necessity under case law announced in Katz v. United States (1967) 389 U.S. 347, 357, Horack v. Superior Court (1970) 3 Cal.3d 720, People v. Roberts (1956) 47 Cal.2d 374 and People v. Clark (1968) 262 Cal.App.2d 471. The district attorney (DA) explained that the necessity doctrine or emergency doctrine announced in those cases was an exception to the warrant requirement and that it authorized action by a police officer that would normally be considered a trespass where the act is prompted by the motive to preserve life and/or property and it appears reasonably necessary to accomplish that goal. The DA urged the court to find that the officers acted responsibly when they entered the home to see if the dispatch information was true and to see if anyone inside was hurt or injured and needed their help.

Respondent court asked the DA to address the issue of the emergency being quashed or satisfied once petitioner told the officers that she was the only one there and no one had attacked her. The DA essentially responded that the officer was not required to believe petitioner--particularly since the sex of the victim had not been identified.

Defense counsel argued that law enforcement did not even know if the caller was referring to an address in the City of Merced. He maintained the caller may have meant an address in the city of Atwater. Counsel claimed the officers subjective belief was irrelevant and that once petitioner told him she was fine, the officer had no authority to enter her home against her consent. To allow law enforcement to rely on an anonymous call would, in counsels opinion, lead to way too many abuses.

The court asked defense counsel if law enforcement is supposed to pick and choose which calls to respond to. Counsel said no, but they should at least make sure they have the right address, they can make an inquiry. To that, respondent court noted that the address they went to was the only one in the City of Merced that fit the description and that the call was made to the City of Merced dispatcher.

Defense counsel then argued that, once the officers got there, there was no evidence that a crime had been committed. There was no blood or anything else.

Respondent court issued the following ruling denying the motion to suppress:

The Court gleans from the evidence ... that there was a call to the dispatch of the Merced City Police Department, and that there was an urging of a unit to be sent to 419 23rd Street. And its reasonable to believe that that was 419 23rd Street in the City of Merced; otherwise, they wouldnt have called the City of Merced Police Department. They would have been calling Los Banos or Canoga Park, or whatever city theyre dealing with.

The testimony was that she ran those two numbers. West 23rd had come up as a response before. East 23rd had not. She dispatched to the West 23rd within half a minute believing this was a priority case, which the Court, number one, thinks is not only reasonable, but exemplary of the police responding. Because a citys worst nightmare and concern is that police arent being dispatched in a timely manner. Half a minute is pretty darn good.

And later it was the testimony that 23rd Street was deemed an invalid address. So by the process of elimination, the officer was equipped with the right address for the anonymous call.

Secondly, when the officer arrived at the scene, he found the door open and a bike there. Whether or not there were screams or blood is not the material point. The alleged victim, if any, could be unconscious. So there would not be any noise from that individual. And its not necessarily to be expected to see blood or scuffle in the front yard. It could have happened in the house, in the backyard and dragged into the house -- a variety of scenarios.

All the officer is equipped with is information from dispatch that there was a potential dispute, argument, somebody being hurt at that residence, and theyre trying to check it out.

At that point when confronted by [petitioner] and declined entrance, therein is a pivotal moment. Getting to that point, the Court sees this was all reasonable action. The Court deems that the entry is under the Necessity Doctrine and finds that [it] was appropriate and at this point is going to deny the 1538.5 Motion based on those grounds.

It was reasonable for [the officers] to go into the residence and check each of the rooms, looking to see if there was, in fact, an alleged victim, and particularly one that may be unconscious. And then once in the bedroom, in the Plain View Doctrine, saw other acts of criminality and then proceeded from there.

So the motion is denied at this time.

This petition for writ of mandate/prohibition timely followed. (Pen. Code,  1538.5, subd. (i).)

ANALYSIS

Standard of Review

When ruling on a Penal Code section 1538.5 motion:

the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.] (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Alvarez (1996) 14 Cal.4th 155, 182 .)

The facts of this case are not in dispute. Only their legal significance is at issue. As such, the trial courts ruling is subject to our independent review. (People v. Thompson (2006) 38 Cal.4th 811, 818; see also People v. Jenkins (2000) 22 Cal.4th 900, 969 [trial courts application of law to the facts is subject to appellate courts independent review].) Finally, [u]nder California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. (People v. Robles (2000) 23 Cal.4th 789, 794, citing People v. Ayala (2000) 23 Cal.4th 225, 254-155; People v. Bradford (1997) 15 Cal.4th 1229, 1291.)

The Warrantless Search of Petitioners Home

We begin with the proposition that a search conducted without prior authorization of a judge or magistrate is per se unreasonable under the Fourth Amendment unless it falls within one of the well recognized exceptions. (Katz v. United States (1967) 389 U.S. 347, 357.) This case concerns two of those exceptions--the plain view exception and the emergency aid exception.

The plain view doctrine comes into operation only if the officers had the right to be where they saw the objects they seized. (Harris v. United States (1968) 390 U.S. 234, 236.) Since the officers spotted the illicit drugs and paraphernalia from inside the home, their presence there must be justified by some other exception to the Fourth Amendment.

The People sought to justify the search, and the trial court upheld that search, under the emergency aid exception to the Fourth Amendment. Under that exception, police officers:

may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. [Citation.] The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. [Citation.] And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations.] (People v. Ray (1999) 21 Cal.4th 464, 470; accord Mincey v. Arizona (1978) 385 U.S. 385, 393-394.)

In order to justify the intrusion, the police officer must be able to point to specific, articulable facts which, taken together with the rational inferences that can be drawn from those facts, indicate a need for swift action to prevent imminent danger to life or serious damage to property . [Citations.] (People v. Ray, supra, 41 Cal.4th at pp. 472-473.)

This exception is not to be confused with the exigent circumstances exception to the Fourth Amendment. The Ray court explained the difference between these two exceptions as follows:

[T]he emergency aid doctrine is not a subcategory of the exigent circumstances exception to the warrant requirement. Rather, it is a subcategory of the community caretaking exception, a distinctly different principle of Fourth Amendment jurisprudence. When the police act pursuant to the exigent circumstances exception, they are searching for evidence or perpetrators of a crime. Accordingly, in addition to showing the existence of an emergency leaving no time for a warrant, they must also possess probable cause that the premises to be searched contains such evidence or suspects. [Citations.] In contrast, the community caretaker exception is only invoked when the police are not engaged in crime-solving activities. [Citations.] . Upon entering a dwelling, officers view the occupant as a potential victim, not a potential suspect. (People v. Ray, supra, 21 Cal.4th at p. 471.)

Officers community caretaking functions typically include actions taken to reduce the opportunities for the commission of some crimes through preventative patrol, rendering aid to individuals who are in danger of physical harm, assisting those who cannot care for themselves, resolving conflicts, creating and maintaining a feeling of security in the community; and providing other services on an emergency basis. (People v. Ray, supra, 21 Cal.4th at p. 471.)

In the instant case, we conclude the People did not meet their burden of proving the entry and the ensuing search was reasonable under the emergency aid exception to the Fourth Amendment. The officers went to the residence out of concern that an injured person in need of their immediate assistance might be found there. Upon their arrival, however, the officers met with petitioner who assured them she was the only person in the residence and had not been assaulted. No evidence was presented to prove her wrong.

The People did not present any evidence that the residence was in disarray or that petitioner was distraught, bruised or cut. No moans or cries for help were heard. No blood or weapons were seen. While the dispatcher indicated her department had prior contacts with the address, she was not asked to, and did not, elaborate on the nature of those contacts. There simply was nothing other than the phone call to show a struggle had taken place or was taking place at the residence.

Given these facts, one has to question whether it was reasonable for the officers to rely on the anonymous callers report of violence occurring in the home to enter that home. We believe the answer must be, no.

While we sympathize with the officers, the fact remains they were relying on the report of an uncorroborated caller who could not be traced through caller ID. The record before the trial court made it appear the call came in on a business line rather than a 911 line.^[3] No testimony was presented to show the call was recorded. (See People v. Dolly (2007) 40 Cal.4th 458, 467 [call being recorded improves chances of anonymous caller being identified and reduces chances of report being false].) Once the officers got to the address, nothing was seen or heard by the officers to confirm the information provided by the caller.

Since the officers had no reason to believe immediate entry was necessary to save life or limb, petitioner is entitled to appropriate relief. (Code of Civ. Proc.,  1085; see Whitneys at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266.) A peremptory writ of mandate is proper and should issue. (Cf. Code of Civ. Proc.,  1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181.)

DISPOSITION

The petition is granted. Let a peremptory writ of mandate issue directing respondent court to vacate its September 14, 2007, order denying petitioner Fredricksons motion to suppress filed in Merced County Superior Court case No. 30444 and to enter an order granting said motion. The stay previously imposed is lifted.

This opinion is final immediately upon its filing as to this court only.

_____________________

Cornell, J.

I CONCUR:

_____________________

Gomes, J.

DISSENTING OPINION

I respectfully dissent. I believe the facts known to the officers were sufficient to cause a reasonable officer in their position to conclude that an immediate entry was necessary to render aid to an injured person.

When deciding whether an anonymous tip should be deemed sufficiently credible to warrant acting on it, the courts have looked to: the amount of detail provided by the anonymous tipster; whether that individual had a reason to remain anonymous (fear of reprisal for example); the level of potential/actual harm to persons or property; the immediacy of the situation to either prevent future harm or to address serious harm that has already been inflicted; whether the call was taped; whether the type of information provided suggests the caller personally witnessed the danger (most cases involve sight, not hearing as in our case); and whether the call came into a 911 call center. (E.g., People v. Dolly (2007) 40 Cal.4th 458; United States v. Terry-Crespo (9th Cir. 2004) 356 F.2d 1170, 1176.)

While the Dolly and Terry-Crespo line of cases all involved 911 calls, much of their analysis applies equally well to calls of an emergent nature such as the one before us even though it came in on the police departments business line.

Here, the caller was reporting a situation that required immediate police intervention. As explained by our high court in People v. Dolly:

Residents of neighborhoods are in the best position to monitor activity on the streets. But residents, also fearful of the consequences, may not always wish to identify themselves and volunteer their names. According no weight as a matter of law to such anonymous tips would only discourage concerned residents from even calling the police, would burden the rights of ordinary citizens to live in their neighborhoods without fear and intimidation, and would render citizens helpless in their efforts to restore safety and sanctity to their homes and communities. [Citation.] (People v. Dolly, supra, 40 Cal.3d at 468.)

The officers went to the only residence in town that matched the number and street name given by the anonymous caller and arrived less than two minutes after the call was received. Upon their arrival, they found a bike in the front yard and the front door left open. Given that it was nearly 7:00 p.m. in late November, one would expect the door to be closed. These facts only served to heighten the officers suspicions that something criminal might be afoot. The attacker may have been a visitor who arrived on the bike and left the door open in his/her haste to get to the victim. Or, the attacker may have left the door open when he/she fled. The assault may have ended moments before the officers arrived and the recipient of the beating was out of sight and in need of medical care but was unable to call out. The only way the officers could be sure of the well being of all occupants of the residence was to conduct a protective sweep looking for the victim of the reported beating.

The officers were not required to believe petitioner when she told them she was the only one in the house and she was fine. All too often victims of various types of crimes make similar and false comments to law enforcement while their attackers look on hidden from view of the investigating officers. Petitioner could have been the perpetrator of the attack and kept the victim out of sight in the bedroom. Women are not always the victims of domestic violence--they too can be the perpetrator.

Here, the officers had to make a prompt assessment of a situation that could have had serious consequences. I think a reasonable officer in their situation would have felt the need to conduct a protective sweep to check on the well being of those in the home. That was their sole purpose for entering the home. Once inside, the officers correctly limited their search to places where a victim might be found. The drugs and paraphernalia were found in plain sight in the bedroom while the officers were engaged in that limited search.

Accordingly, I would deny the petition.

________________________

Levy, Acting P.J.

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^[1]People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.)

^[2] After the petition was filed, Real Party confirmed that the call was received on the departments business line, not that it was made from a business line.

^[3] As noted earlier, real party conceded the call came in on the departments business line.