People v. Rubio

Filed 12/12/2019; on rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A152455

v.

ADAN RUBIO, (San Mateo County

Super. Ct. No. 16-SF-012681-A)

Defendant and Appellant.

If a man lives in a high crime neighborhood and somebody discharges a firearm

outside his home, may the police break down his door and enter his apartment when he

refuses to invite them in to investigate? The Fourth Amendment answers a resounding

“no”—at least not without circumstances, not present here, that would cause a reasonable

person to believe that someone in the apartment stood in need of emergency aid, or that

some other exception to the warrant requirement applied. The need to render emergency

aid justifies warrantless entry only where officers have “ ‘ “specific and articulable

facts” ’ ” showing that an intrusion into the home was necessary. (People v. Ovieda

(2019) 7 Cal.5th 1034, 1043 (Ovieda).) It is not enough that officers seek to rule out “the

possibility that someone . . . might require aid.” (Id. at p. 1047.)

These principles render the warrantless search of defendant Adan Rubio’s garage

apartment unconstitutional. Defendant here appeals his conviction by plea to possession

of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1), a

plea entered after the trial court denied his motion to suppress the evidence found in his

1

apartment (Pen. Code, § 1538.5).1 Because we conclude the evidence was gathered in

violation of defendant’s Fourth Amendment rights, we reverse his conviction and remand

to allow defendant to withdraw his plea.

FACTUAL AND PROCEDURAL BACKGROUND

On October 19, 2016, at approximately 10:40 p.m., East Palo Alto Police

Department Sergeant Clint Simmont received an alert on his “ShotSpotter” application

that shots had been fired near 2400 Gonzaga Street. The ShotSpotter system detects and

triangulates the location of gunfire via microphones deployed throughout the city. Here

ShotSpotter notified Sergeant Simmont of two separate bursts of gunfire. First came five

rounds from the edge of the garage driveway area of 2400 Gonzaga, then a minute later

six rounds at “the edge of the driveway, near the sidewalk.” Sergeant Simmont testified

that 2400 Gonzaga is located in a high-crime neighborhood, and that he had responded to

more murders within a block of that location than anywhere else in East Palo Alto.

Sergeant Simmont and a team of four other officers arrived near 2400 Gonzaga

Street and parked 60 to 70 feet from the edge of the driveway. Two officers spoke with

witnesses who had heard gunfire. Pointing towards a boat in the driveway of 2400

Gonzaga, they reported they had seen flashes coming from the other side of the boat. As

the officers approached the house with their guns out, they found a spent shell casing on

the ground at the top of the driveway, near the garage. Sergeant Simmont believed the

casing was a .45 caliber round and might have come from a semiautomatic weapon.

Approximately one minute after the officers found the spent shell casing, a man

identified as Joshua Bazan walked through the wooden gate of a fence that separated the

front and back yards of the house. Sergeant Simmont recognized Bazan from prior

contacts and testified that Bazan frequently drank and yelled at police. Sergeant

Simmont also knew that Bazan did not reside at 2400 Gonzaga. As he came through the

gate, Bazan began yelling obscenities at the officers and assumed a combative position.

The officers arrested Bazan and placed him in a patrol car.

1

Unless otherwise specified, all further statutory references are to the Penal Code.

2

After Bazan’s arrest, officers located two additional spent casings behind the open

gate that Bazan had passed through. Sergeant Simmont concluded gunfire had come

from near the gate, although he could not testify from which side. Sergeant Simmont

testified that he was “investigating whether or not we had a victim or a shooter [who] was

hiding out.”

Sergeant Simmont pounded loudly on a door attached to the side of the garage and

announced police presence four or five times. No one responded, but Sergeant Simmont

heard what sounded like someone inside the garage pushing items against the door, and

he noticed that the door appeared to be flexing. Sergeant Simmont believed someone

was attempting to barricade the door. As Sergeant Simmont was knocking on the door, a

man came to a window next to the garage and, when Sergeant Simmont ordered him to

open the door, indicated that the door led not to the garage, but instead to a separate

room.

Sergeant Simmont and his colleagues spoke with several people at the front door

to the residence. When asked whether anyone in the house had been shot, defendant’s

father, Francisco Rubio Sr., responded “I don’t think so.” He had been asleep until

awoken by the sound of gunfire and, getting out of bed to investigate, had seen nobody.

Sergeant Simmont testified that he asked Francisco Sr. for permission to search the

house, which Francisco Sr. granted, but Francisco Sr. testified that the officers never

asked him for permission to enter the house.

Once inside the house, officers asked Francisco Sr. who was inside the garage, and

he responded that his son was. Sergeant Simmont then asked for permission to search the

garage, and Francisco Sr. responded, “Sure.” Attempting to open the door from the

house to the garage, Francisco Sr. found that it was locked, but told the officers he would

get the key.

As Francisco Sr. was getting the key, defendant emerged from the garage, opening

the door “just enough to slide his body out.” Defendant closed the door, which

automatically locked behind him, and approached the officers with his hands in his

pockets, yelling for them to shoot him. Sergeant Simmont repeatedly ordered defendant

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to show his hands. Defendant eventually took his hands out of his pockets and, as he did

so, threw a key ring into the kitchen sink. Officers detained defendant and placed him in

a patrol car.

The officers retrieved the key defendant had thrown into the sink and attempted to

use it to open the door to the garage. When defendant’s key did not work, Sergeant

Simmont and another officer kicked the door open and entered the garage. Sergeant

Simmont testified that he was uncertain what was on the other side of the door and that

he had no reason to believe anyone had been shot, but he “didn’t have anything to rule

that out, either.”

Upon entering the garage, Sergeant Simmont observed that the garage was a

converted apartment. The officers did not find anyone inside the apartment, but did

observe “an explosive device on a shelf.” The officers also found and collected an

operable .45 semiautomatic Smith & Wesson pistol on the shelf in an open closet.

Sergeant Simmont noticed that the door he had knocked on earlier from the outside was

barricaded by furniture.

The officers cleared the house of all occupants to secure the scene. At around 5:18

a.m., a search warrant was obtained. The officers reentered the residence and executed

the warrant. The officers found an operable .357 Smith & Wesson handgun, twenty .40-

caliber bullets, 87 live .357-caliber bullets, a body armor vest, six spent .357 Smith &

Wesson shell casings, and a plastic twist-off bindle in a shot glass with a clear, rock-like

substance, later identified as methamphetamine. Sergeant Simmont located surveillance

equipment with a view of the driveway and a video that showed three people walking

down the driveway. Defendant is seen pulling out a revolver and firing six shots into the

air. Defendant and two other individuals, Bazan and possibly defendant’s brother, are

then seen running back through the gate next to the house.

Following the filing of a five-count felony complaint, defendant filed a motion to

suppress evidence. At a hearing on the motion to suppress, the prosecution argued that

the warrantless entry into defendant’s garage was justified under multiple theories:

community caretaking, emergency aid, exigent circumstances, and consent. The

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magistrate noted that it was “a very close case” but, citing People v. Ray (1999) 21

Cal.4th 464 (Ray), disapproved in part in Ovieda, supra, 7 Cal.5th at p. 1038, denied the

motion on the theory that the search satisfied the community caretaking exception.

The San Mateo County District Attorney then filed a six-count felony information,

charging defendant with discharge of a firearm with gross negligence (§ 246.3, subd. (a)

(count one)), possession of a controlled substance while armed with a firearm (Health &

Saf. Code, § 11370.1, subd. (a) (count two)), unlawful possession of a firearm by a felon

(§ 29800, subd. (a)(1) (counts three and four)), unlawful possession of ammunition

(§ 30305, subd. (a)(1) (count five)), and possession of an explosive (Health & Saf. Code,

§ 12305 (count six)), with a special allegation that defendant is ineligible for probation

because of two prior offenses (§ 1203, subd. (e)(4)).

Defendant filed a motion to set aside the information pursuant to section 995,

alleging that the evidence presented at the preliminary hearing should have been

suppressed pursuant to section 1538.5. Defendant also renewed the original motion to

suppress evidence. Citing the emergency aid doctrine of the community caretaking

exception, the trial court denied defendant’s motion to set aside the information and

denied the motion to suppress.

Following this second denial of his motion to suppress, defendant entered a plea of

no contest to violating Health and Safety Code section 11370.1, as charged in count two,

and admitted the special allegation pursuant to section 1203, subdivision (e)(4). The trial

court sentenced him to three years of supervised probation, subject to conditions

including nine months in the county jail or a residential substance abuse treatment

program. Defendant filed a timely notice of appeal.

In our first review of defendant’s case earlier this year, we affirmed his conviction,

relying on the community caretaking exception articulated in Ray and other cases to

uphold the search. Less than four weeks after we announced our decision, the California

Supreme Court decided Ovieda, in which it disapproved the lead opinion in Ray to the

extent the prior decision had relied on an expansive reading of the community caretaking

exception to allow warrantless entry into a home. (Ovieda, supra, 7 Cal.5th at p. 1038.)

5

We then, on our own motion, granted rehearing and asked the parties to brief the

significance of Ovieda for this case.

DISCUSSION

The Fourth Amendment draws a “ ‘firm line at the entrance of the house.’ ”

(People v. Bennett (1998) 17 Cal.4th 373, 386, citing Payton v. New York (1980)

445 U.S. 573, 590.) At the amendment’s “very core stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.”

(Silverman v. United States (1961) 365 U.S. 505, 511 (Silverman).) Thus, “[w]ith few

exceptions, the question whether a warrantless search of a home is reasonable and hence

constitutional must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31

(Kyllo).)

The Attorney General urges two exceptions to the Fourth Amendment’s warrant

requirement as justifying the warrantless intrusion in this case, but he is wrong on both

counts. The emergency aid exception does not apply because the police had no

reasonable basis to conclude there was anybody inside the apartment who was in danger

or distress. And the exigent circumstances exception fails otherwise to justify the forced

entry because police had no reason to believe a shooter was hiding out in the apartment or

that evidence of criminal conduct would be destroyed before the police had a chance to

obtain a warrant.

“On appeal, a reviewing court must affirm the trial court’s determinations of the

factual questions if they are supported by substantial evidence, but must take the ultimate

responsibility for deciding the legal question according to its independent judgment.”

(People v. Duncan (1986) 42 Cal.3d 91, 97 (Duncan).) Here, we review the propriety of

the magistrate’s decision, not the decision of the superior court that affirmed it. (People

v. Thompson (1990) 221 Cal.App.3d 923, 940; People v. Stamper (1980) 106 Cal.App.3d

301, 304 (Stamper).)

I. Emergency Aid Doctrine

The emergency aid exception to the warrant requirement allows police to “enter a

home without a warrant when they have an objectively reasonable basis for believing that

6

an occupant is seriously injured or imminently threatened with such injury.” (Brigham

City v. Stuart (2006) 547 U.S. 398, 400 (Brigham City); accord People v. Troyer (2011)

51 Cal.4th 599, 606 (Troyer).) In determining whether an 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 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.’ ” (Duncan, supra, 42 Cal.3d at

pp. 97–98; accord Terry v. Ohio (1968) 392 U.S. 1, 23.)

Missing in this case are specific and articulable facts that would lead a reasonable

person to conclude shots fired outside defendant’s garage apartment required breaking

down the door to rescue someone inside his home. Shotspotter data and percipient

witness observations placed all of the gunfire outside the home, in or near the driveway

and the gate to the backyard. There were no bullet holes in windows or siding to suggest

that any of the shots fired outside the home had penetrated into the garage. There were

no drops of blood on the ground to suggest anybody in range of the gunshots had been

hit. Police talked to eyewitnesses but heard no reports of a scuffle, nor of any other

sounds or sights suggesting anyone had been threatened or injured. When police asked

Francisco Sr. if anyone had been shot, he said he didn’t think so, and when they asked

him who was in the garage apartment, he mentioned only his son, who subsequently

came out in response to police demands.

Other than the simple fact that shots were fired outside defendant’s home, the

Attorney General musters only the ample evidence that two people in this high-crime

neighborhood were antagonistic toward the police. First, the response to Sergeant

Simmont’s pounding on the outside door of defendant’s apartment and announcing police

presence was an evident attempt to barricade the door from the inside. Then, a man who

did not live at the house and who had a habit of “making his dissatisfaction [with] the

police known” emerged from the backyard in a belligerent manner. Finally, defendant

responded to the continued police attempts to gain access to his apartment by coming out

7

into the kitchen with his hands in his pockets, daring the police in a loud voice to shoot

him.

These facts may justify the police in detaining defendant and Bazan in handcuffs

while they continue their investigation, but they do not support an inference that an

injured person remained in the garage. Bazan had no reported link to the home, so his

presence outside it says nothing about what is happening inside. Was Bazan a friend or

foe of the inhabitants? Was he responsible for the shots fired? At this point, the police

did not know. They did know, or at least had strong reason to believe, that the only

reported occupant of the garage wanted no contact with them, and that he feared police

would break down his door. But defendant’s evident distrust of police and preference for

avoiding any interaction with them does not plausibly support an inference that

somebody else was in his apartment suffering from a gunshot wound. Even after police

detained Bazan and defendant, they learned nothing to substantiate their original

suspicion that an injured person might be in the garage.

With nothing more than an “unparticularized suspicion[]” that emergency aid

might be necessary, the police may not breach the firm line the Fourth Amendment draws

at the entrance to defendant’s home. (Duncan, supra, 42 Cal.3d at pp. 97–98.) They

cannot break down defendant’s door simply because Sergeant Simmont “didn’t have

anything to rule . . . out” the possibility that someone inside had been shot. As Ovieda

explains, the line demarking constitutional conduct “falls between the mere inchoate

possibility that an emergency could exist and the officer’s articulation of facts that make

it reasonable, even if uncertain, to believe an emergency does exist.” (Ovieda, supra,

7 Cal.5th at p. 1049.) Sergeant Simmont admitted he had no reason to believe an injured

person was in the apartment, placing this case firmly on the “inchoate possibility” side of

the Fourth Amendment line. As in Ovieda, “[t]he officers here may well have acted with

the very best of intentions. But just as an officer’s venial motives will generally not

undermine an otherwise valid search, a benign intent cannot save an invalid one.” (Id. at

p. 1052.)

8

In Ovieda, officers responded to the defendant’s home “after family members

reported he was suicidal and had access to a gun.” (Ovieda, supra, 7 Cal.5th at p. 1038.)

Officers “learned defendant was inside with two friends,” who “were able to disarm him”

and lead him out. (Id. at pp. 1038–1039.) But after Ovieda and his friends emerged from

the home, officers still “ ‘felt duty bound to secure the premises and make sure there were

no people inside that were injured or in need of assistance.’ ” (Id. at p. 1039.) Officers

had “no ‘specific information that led [them] to believe somebody else was inside.’ ” (Id.

at p. 1040.) They had “no reports that shots had been fired, that defendant had threatened

anyone else, or that there were any victims inside the house,” causing our Supreme Court

to conclude the officers lacked “ ‘ “specific and articulable facts” ’ ” supporting an

inference that their intrusion was necessary. (Id. at p. 1043.) Warrantless entry into

Ovieda’s home was accordingly not justified by any need to render emergency aid. (Id.

at p. 1043.) And to the extent the lead opinion in Ray authorized warrantless entry into a

private home for community caretaking in circumstances short of an emergency, Ovieda

disapproved it. (Ovieda, at pp. 1038, 1048.)

The Attorney General relies on Ray, but a majority of justices in that case

concluded the need to render emergency aid did not justify warrantless entry into an

empty apartment. The lead opinion concludes, although “[t]he officers were concerned

for the possibility of an injured person inside the residence,” they “had no knowledge of

any facts that would lead a reasonable person in their position to believe entry was

immediately necessary to aid life or limb.” (Ray, supra, 21 Cal.4th 464 at p. 473 (lead

opn.).) Joining them on this point was Justice Mosk, whose dissent found no justification

for the warrantless search at all. (Id. at p. 482 (dis. opn. of Mosk, J.).) Thus, to the extent

our case is analogous, Ray precludes us from justifying this search under the emergency

aid doctrine.

Other California cases applying the emergency aid exception to the warrant

requirement are no more helpful to the Attorney General. In Stamper, supra, 106

Cal.App.3d 301, police responded to a report that two gunshots had been fired within a

residence. When they approached and knocked on the door, an officer “ ‘heard from

9

within the residence what sounded to be like a shotgun being chambered.’ ” (Id. at p.

304.) Not surprisingly, the court upheld warrantless entry in that case. (Id. at p. 306.)

Unlike in our case, where the police broke into defendant’s apartment without any

evidence of a firearm, gunshots, or an injured person within, in Stamper the police had

evidence that shots had just been fired inside the home, and that somebody inside was

again preparing to use a firearm even as the police stood by outside.

Similarly, in Tamborino v. Superior Court (1986) 41 Cal.3d 919, the police

responded to a report of a robbery at an address where a victim “was believed to be

injured and bleeding.” (Id. at pp. 921–922.) Officers responding to the scene observed

blood outside the defendant’s apartment building and outside his apartment door. Also, a

witness “confirmed that an injured person was inside the apartment.” (Id. at p. 922.)

Unsurprisingly, the court held that these facts gave officers sufficient reason to enter in

search of injured persons. But our case, with no sign of blood and no witnesses reporting

injury, is clearly distinguishable. (See also Troyer, supra, 51 Cal.4th at p. 610

[emergency aid justifies intrusion where “police arrived minutes after a reported shooting

to find one victim with gunshot wounds, another bleeding heavily from a head wound,

blood on the door indicating an injured victim had entered or exited the residence, a

report of a male shooting victim who may still have been unaccounted for, and evasive or

unreliable responses from [one victim] as to whether anyone inside needed assistance”].)

The Attorney General also relies on two federal cases that are distinguishable in

that both involve police who see evidence that a person in the home has been injured and

that violence is ongoing in the home. In Brigham City, supra, 547 U.S. 398, the officers

see and hear a fight taking place inside a house, and then watch through a window as one

victim takes a punch to the face, spitting blood. (Id. at p. 406.) In Michigan v. Fisher

(2009) 558 U.S. 45, officers investigating a report of a man “ ‘going crazy’ ” find, in the

driveway, blood in and on a pickup truck whose front has been smashed, and more blood

on the door to the house. (Id. at p. 45.) Through a window they see a man “inside the

house, screaming and throwing things,” perhaps at “a spouse or a child.” (Id. at pp. 46,

48.) That the emergency aid exception justified warrantless entry in these two cases

10

means nothing for our case, where the police forced entry into defendant’s home without

any evidence that there was an injured person in the apartment, and without evidence that

violence was occurring, or had occurred, inside the home.

More analogous is a case from a sister state whose supreme court refused to apply

the emergency aid doctrine even where there was evidence linking gunfire to a room the

police entered. In People v. Davis (1993) 442 Mich. 1 [497 N.W.2d 910], police dispatch

alerted officers that a motel desk clerk had called in “Room 33 or 34 . . . shots fired.” (Id.

at p. 911.) Officers reporting to the scene noticed nothing unusual and chose not to speak

with the desk clerk or motel manager, “but instead went directly to the rooms,” knocking

and announcing police presence at the first door they reached. (Ibid.) Although the

defendant peeked out the window, she did not open the door to her hotel room for three to

five minutes. When she did, the police entered the room without a warrant, found

contraband, and arrested her. (Id. at pp. 911–912.) The Michigan Supreme Court, after

carefully analyzing the legal issues, noted the police had no corroboration for the sketchy

information they had received from dispatch, and no suggestion “that any person was

injured, other than by implication because of the inherently dangerous nature of

gunshots.” (Id. at p. 921.) On these facts, the court rejected application of the emergency

aid doctrine, concluding that “the constitution prohibits [police] from forcing entry into a

dwelling on the basis of a speculation that someone inside may have been injured.” (Id.

at p. 922.) (See also United States v. Timmann (11th Cir. 2013) 741 F.3d 1170

[emergency aid doctrine does not justify police entry into an apartment from which a

bullet had earlier pierced neighboring apartment’s wall].) The emergency aid doctrine is

even less appropriate in defendant’s case, where there was never evidence of gunfire

within (or emitting from) his home.

Although the police had no evidence linking anyone inside defendant’s apartment

to the reports of shooting outside it, they did have evidence that someone in the garage

sought to deny them entry. But defendant, as much as any American, has “the right . . .

to retreat into his own home and there be free from unreasonable governmental

intrusion.” (Silverman, supra, 365 U.S. at p. 511.) He should not need a barricade to

11

fortify that right. We do not condone the hostility that defendant (and Bazan) exhibited

toward the police. But nor can we ignore that “ ‘as a practical matter neither society nor

our enforcement of the laws is yet color-blind,’ ” and the resulting “uneven policing may

reasonably affect the reaction of certain individuals—including those who are innocent—

to law enforcement.” (United States v. Brown (9th Cir. 2019) 925 F.3d 1150, 1156.)

That defendant lived in a high crime neighborhood, that a shooting had just occurred

outside his home, and that he chose initially to exercise his constitutional right to be left

alone in his own apartment do not entitle the police to break down his door. The

circumstances of this case do not establish reason to believe that after defendant was

detained in handcuffs there was anyone in his apartment in need of emergency aid.

II. Exigent Circumstances

Separate and apart from the emergency aid exception to the warrant requirement,

the Attorney General argues that the police action in this case comes within the exigent

circumstances exception to the warrant requirement. Because warrantless entry into a

home is presumptively unreasonable, the government bears the burden of establishing

exigent circumstances (Troyer, supra, 51 Cal.4th at p. 606), and we find none that justify

forced entry here. Our Supreme Court has defined exigent circumstances as “an

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 (1976) 16 Cal.3d 263, 276.)

The Attorney General argues exigent circumstances based, in part, on the officers’

concern that an injured person in the garage needed immediate aid. This is a reframing of

the emergency aid argument we have already rejected. (See, e.g., Ovieda, supra,

7 Cal.5th at pp. 1041–1042 [exigent circumstances includes “when an entry or search

appears reasonably necessary to render emergency aid, whether or not a crime might be

involved”].)

The Attorney General also cites case law addressing the constitutionality of a

“warrantless search” but does not argue that there was an exigent need to search Rubio’s

apartment for evidence. Nor would such an argument have succeeded here, where there

12

was no indication that someone in the apartment was about to destroy evidence of the

shooting.

What the Attorney General does argue is that exigency existed in that a shooter

might be in the garage apartment even after defendant had left it. Sergeant Simmont

could reasonably conclude “there was a possibility a firefight . . . had occurred,” and that

shooters “may be inside the residence,” the Attorney General asserts. (Italics added.)

Although police may have harbored a “suspicion that activities intended to be hidden

were continuing in the home,” as the Attorney General alleges, none of this conjecture

rises to the level of probable cause to believe that a shooting suspect was in the garage,

and the Attorney General does not argue otherwise.

This shortfall is fatal, for “to fall within the exigent circumstances exception to the

warrant requirement, an arrest or detention within a home or dwelling must be supported

by both probable cause and the existence of exigent circumstances.” (People v. Lujano

(2014) 229 Cal.App.4th 175, 183; see also People v. Thompson (2006) 38 Cal.4th 811,

818 [“entry into a home based on exigent circumstances requires probable cause to

believe that the entry is justified by . . . factors such as the imminent destruction of

evidence or the need to prevent a suspect’s escape”]; People v. Bacigalupo (1991)

1 Cal.4th 103, 122 [factors that determine “whether exigent circumstances support the

decision to make” a warrantless arrest in a residence include “whether probable cause is

clear” and “whether the suspect is likely to be found on the premises entered”].)

Here, the totality of the circumstances fails to establish that when the police

entered defendant’s apartment they had probable cause to believe a shooter would be

found there. Although ample evidence established that a shooting had occurred outside

the apartment, no witnesses or other evidence placed a gunman inside the residence at

any time before the police broke down defendant’s door. Indeed, no evidence placed

anyone but defendant in the garage at any point that evening, so that once defendant had

come into the kitchen, police had no reason to believe anybody—shooter or otherwise—

remained in the garage. With Bazan and defendant in handcuffs, the very idea that a

shooter remained at large was speculative. This case is therefore clearly distinguishable

13

from Stamper, the primary case on which the Attorney General relies. In Stamper, police

received a report of gunshots within the residence and then heard with their own ears the

sound of a shotgun being chambered inside the residence. (Stamper, supra,

106 Cal.App.3d at p. 304.) By contrast here, no sounds at all came from the garage

apartment after defendant came out and was detained in the kitchen.2

In sum, lacking probable cause to believe a shooting suspect would be found in

defendant’s apartment, the police could not rely on exigent circumstances to justify

breaking down his door and entering his home to look for a shooter.

DISPOSITION

The judgment is reversed, and the case is remanded for further proceedings.

2

Also distinguishable is Ryburn v. Huff (2012) 565 U.S. 469 (Ryburn), on which

the dissent relies. In Ryburn, the Court was not deciding whether an unwarranted

intrusion into the home violated the Fourth Amendment, but whether police officers were

entitled to qualified immunity from suit (id. at pp. 472, 477), an issue the Supreme Court

has repeatedly emphasized as different. (See, e.g., Saucier v. Katz (2001) 533 U.S. 194,

203, overruled on another point in Pearson v. Callahan (2009) 555 U.S. 223, 236;

Safford Unified School Dist. #1 v. Redding (2009) 557 U.S. 364, 378–379; Camreta v.

Greene (2011) 563 U.S. 692, 705–707.) Ryburn is also factually distinguishable, in that

there the police entered through an open door, behind a woman whose son had credibly

threatened to “ ‘shoot up’ ” his school, and after the woman ran into the house upon being

asked whether there were guns inside. (Ryburn, at pp. 470–471.) Police explained the

intrusion as necessary to protect officer safety (id. at pp. 473–474), a justification not

offered for the intrusion in this case.

14

_________________________

TUCHER, J.

I CONCUR:

_________________________

BROWN, J.

People v. Rubio (A152455)

15

POLLAK, P. J., Dissenting.

In the initial opinion from this court, the majority upheld the entry into the garage

in question under what the lead opinion in People v. Ray (1999) 21 Cal.4th 464

considered a “community caretaking” exception to the Fourth Amendment warrant

requirement for the uninvited entry into one’s home. Shortly after the issuance of our

opinion, the California Supreme Court disapproved of that rationale in People v. Ovieda

(2019) 7 Cal.5th 1034. The court did, however, reaffirm the so-called “exigent

circumstances” exception which the concurring three justices in Ray had considered to

justify the entry in that case. Quoting an earlier opinion, the court in Ovieda repeated,

“ ‘ “ ‘There is no ready litmus test for determining whether [exigent] circumstances exist,

and in each case the claim of an extraordinary situation must be measured by the facts

known to the officers.’ ” ’ ” (Id. at p. 1041.) The court went on to state, “The need to

render emergency aid is a well-recognized part of the exigent circumstances exception.

But it has always required that articulable facts support a reasonable belief that an

emergency exists.” (Id. at p. 1048, italics added.) The court pointed out that the Ray lead

opinion found that no such facts were established, approving a warrantless entry if “the

need was merely hypothetical.” (Ibid.) The court disapproved of the entry in Ovieda

because “the officers [there] could not articulate facts pointing to an emergency.” (Id. at

p. 1049; see also id. at p. 1043.)

While Ovieda requires a more demanding scrutiny of the circumstances than the

lead opinion in Ray, the record here does reflect articulable facts establishing the officers’

reasonable belief in the existence of an emergency. As the prosecutor and the Attorney

General have summarized the situation: “1) there were shots fired from multiple locations

in the driveway; 2) a verbally aggressive person exited the gate of the residence and took

a fighting stance; 3) Sergeant Simmont recognized that the person did not live at the

residence; 4) shell casings were observed outside the residence; 5) the shell casings

appeared to lead to a door going into the garage; 6) when he knocked and announced his

presence, Sergeant Simmont heard movement inside that sounded like someone

barricading the door; 7) the sounds led officers to believe someone may have been held

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captive on the other side of the door; 8) [defendant] was acting erratically and refused to

show his hands; and 9) the neighborhood was known as a high crime area.”

As the trial court put these facts together, “what the defense is asking is for this

court to second guess the actions of an officer in the field who knows that shots have

been fired, sees physical evidence of the location where the firearm was discharged, hears

movement within the home that he seeks entry to that is consistent with a reasonable fear

that a victim of a shooting may be being secreted within the residence based on his prior

experience, further that that activity to barricade the door was upon his request to enter as

opposed to a verbal response saying, no, you can’t come in. There’s physical activity

suggesting an attempt to barricade the door. And then the appearance of Mr. Bazan . . .

and his oppositional behavior in a manner where he had no right of possession over the

premises . . . heightened the exigent moment with regard to the decision making an

officer must make in the field where firearms are being or have very recently been

discharged.”

Deeming unreasonable Sergeant Simmont’s on-the-spot belief that immediate

entry was necessary to protect human life disregards the circumspection mandated by the

United States Supreme Court when it criticized a circuit court for “not heed[ing] the

District Court’s wise admonition that judges should be cautious about second-guessing a

police officer’s assessment, made on the scene, of the danger presented by a particular

situation. With the benefit of hindsight and calm deliberation, the panel majority

concluded that it was unreasonable for petitioners to fear that violence was imminent. But

we have instructed that reasonableness ‘must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight’ and that

‘[t]he calculus of reasonableness must embody allowance for the fact that police officers

are often forced to make split-second judgments—in circumstances that are tense,

uncertain and rapidly evolving.’ ” (Ryburn v. Huff (2012) 565 U.S. 469, 477 (per

curiam).) As in that case, I believe that here, “[j]udged from the proper perspective of a

reasonable officer forced to make a split-second decision in response to a rapidly

unfolding chain of events . . . [the officers’] belief that entry was necessary to avoid

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injury to themselves and others was eminently reasonable.” (Id. at p. 477; see also, e.g.,

Brigham City v. Stuart (2006) 547 U.S. 398, 406; Michigan v. Fisher (2009) 558 U.S. 45,

49 (per curiam).)

I therefore conclude that the officers forced entry in this case was justified by the

exigent circumstances exception to the warrant requirement (as well as by the now-

discredited community caretaking exception on which we previously relied), and that

defendant’s conviction should be affirmed. Indeed, I believe, as the Court of Appeal did

in People v. Stamper (1980) 106 Cal.App.3d 301, 306, that “a failure of the police to

investigate as they did, ‘would have constituted a failure to properly discharge [their]

duties as [officers] of the law.’ ”

_________________________

POLLAK, P. J.

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Trial court: San Mateo County Superior Court

Trial judge: Honorable Steven L. Dylina and Donald J. Ayoob

Counsel for defendant and Gordon S. Brownell, under appointment by the Court of

appellant: Appeal

Counsel for plaintiff and Xavier Becerra, Attorney General

respondent: Gerald A. Engler, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

Catherine A. Rivlin, Supervising Deputy Attorney General

Bruce M. Slavin, Deputy Attorney General

People v. Rubio (A152455)