P. v. Reed







Filed 11/19/10 P. v. Reed CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ADRIAN REED, Defendant and Appellant.

B220075 (Los Angeles County Super. Ct. No. BA359120)

APPEAL from denial of motion to suppress evidence pursuant to Penal Code section 1538.5, and from sentence imposed after plea of no contest following the motion’s denial. Stephen A. Marcus, Judge. Reversed.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.


__________________________________

Appellant Adrian Reed was charged by information with one count of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) After the superior court denied his motion to suppress evidence under Penal Code section 1538.5, Reed pleaded no contest to an amended information charging him with possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) On October 19, 2009, the superior court sentenced appellant to state prison for the low term of two years, ordered payment of fines and assessments totaling $405, and awarded 144 days of presentence custody credits (96 actual days and 48 days of good conduct/work credit). On October 23, 2009, Reed filed a timely notice of appeal.
Reed challenges the trial court’s denial of his motion to suppress evidence obtained by warrantless search. Because the facts in the record do not justify the search, we reverse the conviction.

Statement of Facts

At about 8:30 p.m. on July 16, 2009, Los Angeles police officers Kniss and Escamilla were on patrol when they saw a man on the front steps of a home vomiting. Because he appeared to be ill, the officers left their car and approached to determine whether he needed help. As they approached the steps, the man vomited again.
The officers heard voices from inside the porch at the top of the steps, and they noticed the strong odor of marijuana.[1] Officer Kniss inquired of those inside the porch “is this guy with you‌” and “can you take care of this guy‌” A man (later identified as Mr. Griffith) opened the porch door and stepped out, telling the officers, “this guy is with us. He’s been drinking.”
Until Griffith opened the porch door, Kniss could not see inside. When the door was opened, however, Kniss stepped into the doorway of the unlit porch and shone his flashlight inside. He then saw Reed—one of three others inside the porch—stand up and drop a plastic bag.[2] Kniss could not see what was inside the bag, but when he later examined it, he found it contained what he identified as rock cocaine.
The officers then entered the enclosed porch and Kniss walked the approximately 14 feet to retrieve the dropped plastic bag. After entering into the porch but before picking up the bag, Kniss asked Reed for his name. Before responding Reed spat out a sealed ziploc bag that was later found to contain some marijuana.[3] The officers then searched the porch and the area immediately inside the home’s front door, but found no further cocaine or marijuana, and no marijuana paraphernalia. When Reed was booked following his arrest, another plastic bag containing rock cocaine was discovered in his waistband.
Griffith, who identified Reed as his cousin, gave a somewhat different account. According to Griffith, the police officers stopped and approached when they saw his friend, who was sick with the flu, vomiting on the front steps. Kniss asked Griffith to step outside the enclosed porch to talk, but when Griffith opened the porch door and tried to close it behind him, Kniss “snatched the door open” and “looked around inside.” Griffith testified that he saw nothing dropped, and was aware of no marijuana or cocaine.[4]
Reed appeals from the court’s denial of his motion to suppress evidence under Penal Code section 1538.5, challenging the trial court’s conclusion that the arresting officers’ entry into the enclosed porch to seize and search the plastic bags and their contents without securing a warrant was reasonably justified under the circumstances.[5]
Our review must determine whether the facts presented in connection with appellant’s 1538.5 motion support the trial court’s decision that the search and seizure were reasonable under the Fourth Amendment to the United States Constitution.
In reviewing the decision we defer to the trial court’s factual findings, express and implied, that are supported by substantial evidence. In determining whether those facts are sufficient to establish that the search and seizure were reasonably justified under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Garry (2007) 156 Cal.App.4th 1100.)
We conclude that Officer Kniss was justifiably at the top of the stairs in a position to observe Reed drop the plastic bag, but that his observation did not justify his warrantless entry into the enclosed porch to seize and search the bag’s contents, and to arrest Reed. The officer’s observation did not itself provide probable cause to believe the bag contained contraband or that a crime had been committed (nor did the trial court find that it did). And even if there had been probable cause sufficient to justify an arrest or a search of the porch, the record does not reflect exigent circumstances that threatened danger to persons or destruction of evidence if a warrant for the entry had been sought. We therefore conclude that the trial court erred in finding that the warrantless search and seizure were reasonable and in denying Reed’s motion to suppress the seized evidence, and we reverse the conviction. (§ 1538.5, subd. (m).)

Discussion

Warrantless searches and seizures of a home (including its enclosed front porch) are presumptively unreasonable under the Fourth Amendment to the United States Constitution. (Payton v. New York (1980) 445 U.S. 573, 586.) “Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (Steagald v. United States (1981) 451 U.S. 204, 212, citing Payton v. New York, supra, 445 U.S. at p. 590.) When a search or seizure is challenged as warrantless, the government therefore bears the burden of establishing that the entry was justified by exigent circumstances, consent, or some other recognized exception to the warrant requirement. (People v. Williams (1988) 45 Cal.3d 1268, 1300.)[6]
It is undisputed in this case that no warrant, and no consent, authorized the officers’ entry into the home or its enclosed porch. The central issue of this appeal therefore is whether the circumstances reasonably justified the officers in acting without a warrant to enter into the porch to search and seize the plastic bag containing the contraband for which Reed was arrested and charged, as the trial court found they did.
1. By Failing To Raise The Issue Below, Respondent Has Waived Any Claim That Reed Had No Legitimate Expectation Of Privacy In The Home’s Enclosed Porch.
Respondent urges initially that we need not examine whether the officers’ entry into the porch and seizure of the contraband was constitutionally permissible, because Reed presented no evidence at the section 1538.5 hearing to affirmatively show that he had a legitimate expectation of privacy at the location. The judgment should be affirmed, Respondent argues, because as “a casual guest on Griffith’s porch” Reed “did not have a legitimate expectation of privacy and has failed to show that his Fourth Amendment rights were violated.” But the argument comes too late.
Respondent is correct that evidence obtained in a warrantless search is subject to exclusion only if the defendant had a legitimate expectation of privacy in the area searched. (Steagald v. United States, supra, 451 U.S. at p. 209. “‘“An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded space or the seized thing.”’” (People v. Carter (2005) 36 Cal.4th 1114, 1141, quoting United States v. Salvucci (1980) 448 U.S. 83, 91–92; see Minnesota v. Olson (1990) 495 U.S. 91, 95-96 [issue is whether defendant had expectation of privacy in the premises “that society is prepared to recognize as reasonable”].) When the issue is disputed, it is the defendant’s burden to establish that the officer’s conduct violated the defendant’s legitimate expectations of privacy in the premises. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104; People v. Jenkins (2000) 22 Cal.4th 900, 972; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1196.)
Here, however, the issue was not disputed. At the hearing on the motion to suppress—when the trial court was called upon to determine whether Reed’s Fourth Amendment rights were violated—the evidence concerning Reed’s expectation of privacy in the home’s enclosed porch was sparse. According to Griffith, Reed was his cousin, and had been with him inside the enclosed porch all that day. Griffith opened the porch door when Officer Kniss asked “to talk to the man of the house,” and Kniss saw him sitting inside with others.^[7] Beyond that, no one inquired about Reed’s expectation of privacy in that location, and no one suggested that it was lacking.
If Respondent believed that the evidence failed to establish Reed’s right to an expectation of privacy inside the enclosed porch, the time and place to seek a determination of that issue was at the suppression hearing, when the evidence was being presented and the facts were being determined. But as Respondent concedes, it did not raise the issue in the trial court. Although Respondent was entitled in the trial court to counter Reed’s section 1538.5 challenge to the search and seizure by asserting that Reed lacked a reasonable expectation of privacy in the searched premises, it “may lose its right to raise factual issues of this sort [on appeal] . . . when it has failed to raise such questions in a timely fashion during the litigation.” (Steagald v. United States, supra, 451 U.S. at pp. 209, 211; see also, Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1461-1462 [“Having failed at the suppression hearing to assert that [defendant] lacked a reasonable expectation of privacy in the searched home, the People are now precluded from raising the issue”]; People v. Henderson (1990) 220 Cal.App.3d 1632, 1641 [failure to raise the issue at suppression hearing where defendant could address it operates as waiver of issue]; People v. Lindsey (1986) 182 Cal.App.3d 772, 776 [claim that defendant had no expectation of privacy in car “need not be addressed here” due to failure to raise issue in trial court]; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [permitting People to raise new argument on appeal that search was not illegal would defeat purpose of hearing under section 1538.5].)[8]
People v. Thompson (1990) 221 Cal.App.3d 923, does not hold to the contrary.
There, the defendant had moved at the preliminary hearing—unsuccessfully—to exclude from evidence the narcotics that formed the basis for the charges against him. The trial court then refused to permit him to move to suppress the evidence under section 1538.5, and to present evidence establishing his expectation of privacy in the searched premises, on the ground that such a motion would merely renew his earlier efforts to exclude the evidence. On appeal, the court held (over vigorous dissent) that the prosecution had in fact raised the issue at the preliminary hearing,[9] and that the defendant had waived any argument that it had failed to do so. (Id. at pp. 930-936),
In this case, just as in People v. Thompson, supra, when a defendant has identified the grounds on which it contends that a warrantless search or seizure was unreasonable, the prosecution was required to identify the grounds on which it contends otherwise. (People v. Williams (1999) 20 Cal.4th 119, 129-130.) Once Reed had asserted his challenge to the search and seizure, he was not required to speculate about the basis on which the prosecution might contend it was reasonable, and was not required to come forward with evidence on every potentially arguable basis. It then was up to the prosecution to identify the grounds on which it would defend the search or seizure, so that Reed would have notice of the grounds his evidence must address in order to satisfy his burden of proof. (Id. at p. 130.) “Because law enforcement personnel, not the defendant, made the decision to proceed without a warrant, they, not the defendant, are in the best position to know what justification, if any, they had for doing so.” (Id. at p. 129.)
Here, when Reed challenged the search and seizure, Respondent contended on a number of grounds that Reed’s Fourth Amendment rights were not violated—but it did not suggest that Reed lacked any expectation of privacy in the searched premises. It did not give Reed any reason to understand that his reasonable expectation of privacy was in issue, and did not give the trial court any reason to evaluate whether Reed was entitled to claim Fourth Amendment rights in the first instance.
The issue here therefore is not whether the trial court was justified in finding that Reed lacked a reasonable expectation of privacy inside his cousin’s enclosed porch, because the trial court neither made, nor was asked to make, any such finding.[10] Rather, the issue is whether this court can imply such a finding against Reed, on disputed facts, when Respondent’s failure to identify the issue in the trial court effectively deprived him of an opportunity to counter that argument, and deprived the trial court of its right to rule on the issue. (People v. Miller (1972) 7 Cal.3d 219, 227 [“[T]he People cannot introduce on appeal a new theory to justify the search, in view of the defendant’s lack of opportunity to present evidence in response to it . . . or to argue before the trier of fact the theory’s invalidity or inapplicability”].) Under these circumstances the expectation-of-privacy issue was waived as a result of Respondent’s failure to raise it in the trial court.
2. The Warrantless Search and Seizure Is Not Justified By the “Community Caretaking” and “Plain View” Doctrines.
Respondent defends the trial court’s ruling, arguing that at each juncture Kniss’s conduct was reasonably justified under recognized exceptions to the warrant requirement, thereby overcoming the presumption against the validity of warrantless searches and seizures and justifying the seizure of the contraband.
The trial court found that the officers’ “community-caretaking” function—their legitimate concern for the well-being of the vomiting man—justified Kniss’s entry onto the porch steps without probable cause. From his position on the steps, Kniss then smelled the odor of marijuana and saw Reed drop the plastic bag containing contraband, which was in Kniss’s plain view from a location he was entitled to be. And those circumstances were “exigent enough for him to go in and retrieve those items and check out what they were because otherwise it’s very clear that those drugs would have been destroyed or could have been destroyed, although he didn’t indicate that was one of the reasons he entered . . . .”[11] However, the trial court’s analysis is mistaken.
The trial court correctly identified the first question raised by the motion to suppress the seized contraband: whether the officers “arriv[ed] at the place from which the evidence could be plainly viewed” without violating the Fourth Amendment. It correctly found that the officers’ warrantless entry into the front yard and onto the porch steps was justified by their legitimate inquiries about the man vomiting on the steps. “So I believe the officer had a right to be in this location because he was carrying out the community-caretaking function and to find out why this person was throwing up.”
The court was also correct in finding that for the same reason Officer Kniss was justified in asking Griffith to step out of the home’s enclosed porch: “I think his secondary actions of asking for the man of the house or asking someone else to come out in order to help explain what was going on was also part of this caretaking function.” These are unquestionably legitimate activities within the “community-caretaker” functions of patrolling police officers. (People v. Ray (1999) 21 Cal.4th 464.)^[12]
Thus the trial court’s conclusion is supported, that Kniss’s community-caretaker function justified his position on the porch steps when Griffith opened the porch door to step out as Kniss had requested. And from there Kniss saw Reed drop the plastic bag, in plain view without undertaking any search. (People v. Camacho (2000) 23 Cal.4th 824, 832 [officers’ observation of contraband from a place where they had a right to be does not constitute search].) Appellant does not contend otherwise.
When Kniss stepped inside the enclosed porch, however, he abandoned his community-caretaker function. The vomiting man was not inside the porch, and Griffith had already stepped out at Kniss’s request. When Kniss entered the enclosed porch to seize the dropped plastic bag and search its contents, he was no longer coming to the aid of a man in distress; he was investigating a suspected crime.
The “plain view” doctrine justifies officers in seizing contraband that is in their plain view from a place where they have a right to be. (People v. Mack (1980) 27 Cal.3d 145, 150; People v. Camacho, supra, 23 Cal.4th at p. 832 [officers’ observation of contraband from a place where they had a right to be would not constitute a search, and would not violate Fourth Amendment].) But the plain view doctrine does not justify a warrantless entry into an enclosed residential space, or a search to determine whether the viewed object is or is not contraband. (Arizona v. Hicks (1987) 480 U.S. 321, 325 [action that is unrelated to objectives of authorized intrusion constitutes search if it exposes to view concealed portions of premises or its contents].)
In Arizona v. Hicks, supra, 480 U.S. 321, the police had entered an apartment after a gunshot had been fired into it. Their warrantless entry into the apartment to investigate and to aid any injured occupants was held to have been justified; and their discovery of guns, masks, and expensive stereo equipment, in plain sight once they were inside, was held to provide them probable cause to believe the stereo equipment was stolen. But no exigency justified the officers in then examining the equipment without a warrant in order to verify from a serial number on the bottom that it was stolen. The serial number was not in plain sight to the officers from a place where they were justified in being. The officers’ examination of the serial numbers on the bottom of the equipment was unrelated to the objectives that had authorized their intrusion into the defendant’s apartment—the determination whether any occupant of the apartment needed aid. Examining the bottom of the equipment constituted “a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry”—a warrantless search—because it exposed otherwise-concealed portions of the premises and its contents. (Id. at p. 325.)
Here, as in Arizona v. Hicks, supra, Kniss could see no contraband from the porch steps, where he had a right to be by virtue of his community-caretaker function. Kniss testified that in the light from his flashlight he saw Reed drop the plastic bag. The trial court thus was entitled to find, as it did, that when Griffith opened the door, the bag was in plain sight from where Kniss then stood, and that “at that point in time he has a right to be there.”
But Kniss also testified, and the trial court found, that until he entered the porch, seized the bag, and examined its contents, he could not see through the plastic to the individually wrapped items inside the bag; he could not see what the bag contained. The plastic bag had to be searched before its contents could be determined. (People v. Lenart (2004) 32 Cal.4th 1107, 1119 [incriminating character of object in plain view is not immediately apparent if further search of the object is required]; People v. Huntsman (1984) 152 Cal.App.3d 1073, 1083 [where officer could not see contents of bag, “the search may not be upheld on the ground that contraband was in ‘plain view’”].) The plastic bag was in plain view from Kniss’s position on the porch steps, but its contents—the contraband—was not. Therefore, the community-caretaker and plain-view doctrines cannot justify Kniss’s entry into the enclosed porch.[13]
3. The Warrantless Search And Seizure Cannot Be Justified By Probable Cause or Exigent Circumstances.
The circumstances known to Kniss as he stood in the doorway of the enclosed porch did not amount to probable cause that the dropped bag contained contraband or that Reed had committed a jailable offense. Probable cause exists when the facts known to the arresting officer amount to “a reasonable ground for belief of guilt” (People v. Thompson (2006) 38 Cal.4th 811, 818, quotations simplified), or when there is a “fair probability” that contraband will be found in a particular place (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504).
Here, the circumstances known to Kniss may have given him a reasonable suspicion—a hunch—about what the dropped bag might contain, but they did not amount to a reasonable possibility that it contained contraband. (See Remers v. Superior Court (1970) 2 Cal.3d 659, 662-663, 666 [“man of reasonable caution who possesses the knowledge that dangerous drugs are often packaged in tinfoil would not be justified in assuming, upon seeing a tinfoil package, that it is likely to contain drugs”].) Neither the smell of marijuana nor the presence of a plastic bag or other such package could supply the requisite probable cause. (See People v. Hua (2008) 158 Cal.App.4th 1027, 1036 [smell of marijuana is insufficient to provide probable cause to believe dropped plastic bag might contain quantity of marijuana sufficient to “constitute a jailable offense”]; People v. Holt (1989) 212 Cal.App.3d 1200, 1206 [common items such as film canister, pill bottle, cigarette package, plastic bag, or foil wrapping cannot be identified as distinctive drug-carrying container]; People v. Valdez (1987) 196 Cal.App.3d 799, 806-807 [same]; People v. Chapman (1990) 224 Cal.App.3d 253, 255-256 [appearance of snuff container is insufficient to provide probable cause to believe it contains narcotics]; People v. Huntsman, supra, 152 Cal.App.3d at pp. 1080-1081 [ordinary plastic bag does not support claim of probable cause to believe it contains contraband].)
The trial court correctly doubted that either the plastic bag or the smell of marijuana could alone supply probable cause. But it found that, together with Reed’s “furtive action” in dropping the plastic bag on the porch floor, those circumstances were enough. The court concluded that probable cause arose from Kniss’s “plain view” of the plastic bag “in combination with the marijuana and the fact it was dropped.” “All three items, to me, lead to the conclusion that there were exigent circumstances because he had just witnessed what he thought was felonious activity.”^[14]
These circumstances do not justify the trial court’s conclusion. There was no “furtive” gesture; there was only a plastic bag that had dropped to the floor. The record contains no evidence that Kniss understood Reed’s act of dropping the bag to have been a “furtive” gesture, or even an intentional act. Kniss did not testify that Reed threw the bag down, or even that the bag had been in Reed’s hand before it dropped. For all his testimony shows, the bag dropped to the floor simply because it had been on Reed’s lap when he stood up. As noted (see footnote 2, above), Kniss’s testimony was uncertain or ambiguous, at best, about whether the bag dropped before or after Reed stood up. Although a trained officer might be able to provide admissible testimony that the manner in which a bag is dropped suggests something about its contents (a question we do not address), the prosecution offered no such testimony. Without the furtive gesture, it was unquestionably lacking.^[15]
More important, however, is the fact that even probable cause would not have justified the events that led to the charges Reed faced in this case—Kniss’s warrantless entry into the porch, his search and seizure of the bag, or his arrest and search of Reed. The existence of probable cause to believe the bag contained contraband, or that a felony had been committed inside the enclosed porch, would have justified Kniss in seeking consent to enter the porch to question Reed and to seize any contraband in plain sight, or in seeking a warrant to enter and search the porch; but it could not justify the warrantless entry into the porch without consent, or the search of its contents that Kniss undertook. (People v. Ramey (1976) 16 Cal.3d 263, 275-276 [probable cause to believe that home contains contraband cannot justify warrantless search; even with probable cause, warrantless arrest within home is per se unreasonable in the absence of exigent circumstances]; People v. Marquez (1992) 1 Cal.4th 553, 566 [same]; People v. Superior Court (Walker), supra, 143 Cal.App.4th at p. 1197 [existence of probable cause to believe that items in residence are subject to seizure does not eliminate need for warrant to search residence]; see People v. Ray, supra, 21 Cal.4th at p. 478 [caretaking function justified officers in entering apartment; once there, observation of contraband and money in plain view provided basis for obtaining warrant for seizure of those items].)[16]
“Exigent circumstances” sometimes may justify a warrantless entry or search, when “an emergency situation requir[es] swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey, supra, 16 Cal.3d at p. 276.) But even exigent circumstances that may justify a warrantless entry or search do not justify an entry and search where probable cause is lacking. (Horton v. California (1990) 496 U.S. 128; People v. Thompson (2006) 38 Cal.4th 811, 817-818; People v. Ortiz (1995) 32 Cal.App.4th 286, 291 [even when contraband is in plain view, warrantless entry requires exigent circumstances “regardless of the strength of the probable cause to arrest”].)
Moreover, warrantless entry into a residential area based on exigent circumstances requires not just probable cause to believe that a crime has been committed or that contraband is present, but also exigent circumstances—probable cause “to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.” (People v. Thompson, supra, 38 Cal.4th at p. 818; People v. Celis (2004) 33 Cal.4th 667, 676.) Thus if, as the trial court concluded, the circumstances provided Officer Kniss with probable cause to believe that the dropped bag contained contraband (we believe they did not), that would not have provided him with what he needed to justify a warrantless entry into the enclosed porch and seizure of the dropped bag, but only what he needed in order to obtain a warrant for his entry and seizure. Indeed, the trial court acknowledged as much, suggesting that that is exactly what Kniss should have done. Instead of entering into the porch and seizing the plastic bag that had been dropped, the trial court suggested, the “preferable method of dealing with the situation” would have been to “freeze the house, and you order everybody out, and then you get a search warrant to do it. That would have been what I would have done, had I been there.”
But the trial court also found that Kniss’s observation of Reed dropping “what he thought to be some kind of drugs, even though he couldn’t see it clearly,” was “exigent enough” to justify Kniss’s entry “to go in and retrieve those items and check out what they were . . . .” The exigent circumstances that the trial court found justified Kniss in entering the porch to seize and search the plastic bag’s contents were “because otherwise it’s very clear that those drugs would have been destroyed or could have been destroyed, although [Kniss] didn’t indicate that was one of the reasons he entered.”[17]
However, the existence of these circumstances is belied by the trial court’s own reasoning. The record does not show the existence of any “emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey, supra, 16 Cal.3d at p. 276.) As the trial court had already explained, no warrantless entry and search was required; the “preferable” way to handle the situation would have been for Kniss or his partner to freeze the premises while the other obtained a warrant. These “preferable” procedures would obviate the trial court’s fear “that those drugs would have been destroyed or could have been destroyed.” The “exigent” circumstances would exist only if the officers failed to undertake these “preferable” procedures.
In the absence of evidence showing exigent circumstances sufficient to establish that the warrantless entry was reasonably required for the protection of persons or property—that there were no reasonable and “preferable” ways of dealing with the situation—respondent has failed to carry its burden. (People v. Williams, supra, 45 Cal.3d at p. 1300.) Kniss’s warrantless entry into the enclosed porch, and his subsequent seizure and search of the dropped plastic bag and arrest of Reed for possession of its contents, was unlawful.[18]

Disposition

The judgment is reversed. The superior court is directed to vacate Reed’s plea of no contest, and to dismiss the charges against him.
NOT TO BE PUBLISHED.


CHANEY, J.

We concur:



ROTHSCHILD, Acting P. J.



JOHNSON, J.

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