Tamborino v. Superior Court

719 P.2d 242, 41 Cal. 3d 919, 226 Cal. Rptr. 868, 1986 Cal. LEXIS 183

• Court: California Supreme Court
• Decided: June 16, 1986
• Docket: L.A. 32007
• Status: Published

Opinions

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 (Health & Saf. Code, § 11351). Asserting that the evidence supporting the charge was unlawfully obtained, defendants moved to suppress that evidence (Pen. Code, § 1538.5, subd. (i)) and to dismiss the information (id., § 995). The trial court, in resolving these motions, considered the transcript of the preliminary hearing and the testimony of one of the arresting officers. The court concluded that the search was lawful and denied defendants’ motions. Defendants (petitioners here) seek a writ of mandate to review and set aside those rulings.¹

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 particular address; a victim was believed to be injured and bleeding. No description was given of either the robber or his victim/victims. Klein and a fellow officer drove to the location and observed some blood spots outside the building and on the walkway outside defendant Tamborino’s apartment. A neighbor, Alvino Johnson, confirmed that an injured person was inside the apartment.

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 handcüífed 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 [they] were going to find it anyway.” The officers soon found several small bindles of cocaine under Smith’s mattress. In the meantime, Tamborino had also given his consent to a search after learning that the officers were in the process of obtaining a search warrant.

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.]” (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 specifically questioning the officer on this point—was satisfied that the officer had no such ulterior motive.

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

Here, two different trial judges (for purposes of defendants’ motions under §§ 995 and 1538.5) by necessary implication ruled that Officer Klein reasonably believed that other victims might be present.³ The finding that the officer indeed entertained such a subjective belief was a factual determination which we must accept in light of the substantial evidence supporting it. (See People v. Leyba (1981) 29 Cal.3d 591, 596-598 [174 Cal.Rptr. 867, 629 P.2d 961].) Although the separate question whether the officer’s belief was objectively reasonable is a question of law for this court {id., at p. 598), given the exigency presented here and our reluctance to second guess split-second decisions of officers faced with potentially dangerous situations, we conclude that the officer acted reasonably in this case. Contrary to the suggestion of the dissent, our holding does not signal a retreat from past rulings or a departure from established principles.⁴ We simply hold that because the officer reasonably could have concluded—on the basis of articulable facts—that he was acting in an emergency situation, his immediate and limited response to the reasonably perceived exigency did not violate constitutional principles.

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, I., concurred.

GRODIN, J.—

I agree with the dissent that a police officer who finds a victim at the location of a suspected residential burglary should ordinarily speak with that person before barging into the house on suspicion that there may be another victim within, and that his failure to do so may have an important bearing in assessing the prosecution’s claim of exigent circumstances. I do not read the majority opinion as establishing any different proposition.

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.

1 After we granted a hearing in this case, counsel for defendants moved to dismiss on the ground of mootness, observing that the trial court had dismissed the case in reliance upon the now-vacated Court of Appeal opinion, which had ordered the challenged evidence suppressed. Accepting the People’s theory that the trial court had no jurisdiction to dismiss in reliance upon an appellate opinion which was not yet final, we denied defendants’ motion.

2 As stated in a concurring opinion by now Chief Justice Warren Burger while with the District of Columbia Court of Appeals, “the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if the police tried to act with the calm deliberation associated with the judicial process.” (Wayne v. United States (D.C.Cir. 1963) 318 F.2d 205, 212 (conc, opn.).)

3 Although, as the dissent points out, the trial court did find that “Tamborino obviously could not be a suspect because [he] was wearing a robe,” the court made no finding as to whether the officer subjectively believed or disbelieved that Tamborino was either a suspect or victim and, of course, the trial court ultimately concluded that the officer reasonably believed that he was faced with an exigent situation and acted properly under the circumstances.

4 The cases relied on by the dissent are each distinguishable and do not require officers investigating serious offenses to interrogate wounded persons before entering the premises to look for additional victims in all circumstances. In People v. Carney (1983) 34 Cal.3d 597, 612-613 [194 Cal.Rptr. 500, 668 P.2d 807], the officers were investigating an uncorroborated tip regarding drug activities inside a motor home. No exigent circumstances existed which would justify an immediate entry. In People v. Superior Court (Peck) (1974) 10 Cal.3d 645 , 650-651 [111 Cal.Rptr. 565, 517 P.2d 829], the officers, investigating a possible burglary, interviewed the resident of the subject apartment, who explained that he had lost his key and was required to enter through a window. After the apartment manager confirmed that the suspect was indeed a tenant of the apartment, the officer nonetheless entered and found narcotics. This court properly invalidated the entry. Finally, in United States v. Dugger (9th Cir. 1979) 603 F.2d 97, 98, the officers were investigating a fistfight involving only two men. After interviewing the first victim/participant, they followed a blood trail to the apartment of the second man. The officers confronted and questioned him, but continued to search his apartment “for other occupants.” Under these facts, the court properly concluded that the search exceeded the scope of the exigency once the second victim had been found.

1 In the tort arena, “courts have been compelled to recognize that an actor who is confronted with an emergency [i.e., a sudden or unexpected event or combination of circumstances which calls for immediate action] is not to be held to the standard of conduct normally applied to one who is in no such situation. . . . Under [emergency] conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation. The actor’s choice ‘may be mistaken and yet prudent. ’ [11] . . . The conduct required [however] is still that of a reasonable person under the circumstances, as they would appear to one who was using proper care, and the emergency is to be considered only as one of the circumstances. An objective standard must still be applied, and the actor’s own judgment or impulse is still not the sole criterion. The actor may still be found to be negligent if, notwithstanding the emergency, his acts are found to be unreasonable. The ‘emergency doctrine’ is applied only where the situation which arises is sudden and unexpected, .and such as to deprive the actor of reasonable opportunity for deliberation and considered decision.” (Prosser & Keeton, Torts (5th ed. 1984) § 33, pp. 196-197.)