People v. Nunes

• Decision Date: 06 May 2021
• Docket Number: H046395
• Citation: 278 Cal.Rptr.3d 425,64 Cal.App.5th 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Brook NUNES, Defendant and Appellant.

64 Cal.App.5th 1

278 Cal.Rptr.3d 425

The PEOPLE, Plaintiff and Respondent,

v.Joseph Brook NUNES, Defendant and Appellant.

H046395

Court of Appeal, Sixth District, California.

Filed May 6, 2021

Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence Senior, Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General, for Plaintiff/Respondent The People

Laurel Ellis Parker Simmons, Law Office of Laurel Simmons, San Francisco, Sixth District Appellate Program, for Defendant/Appellant Joseph Brook Nunes.

Grover, J.

After the trial court denied his Penal Code section 1538.5 motion to suppress evidence, defendant Joseph Nunes pleaded no contest to possessing an explosive and possessing a destructive device. He was granted probation. Defendant contends the trial court erred in denying the motion. For the reasons explained, we agree and will reverse the judgment.

I. BACKGROUND

Defendant moved to suppress evidence from the warrantless search of a backyard shed and a cabinet within it by a fire department captain. The prosecution argued the search was valid under the exigent circumstances exception to the Fourth Amendment warrant requirement, and the trial court found the exception applicable.

At the hearing on the motion, a firefighter who is a captain in the Milpitas Fire Department testified he responded to defendant's house a little after 4:30 one afternoon based on a report of a "whole structure fire," with fire coming from the house. But when he arrived, he saw no fire and no smoke. Neighbors standing outside told him they had recently seen a plume of smoke coming from the backyard. A police officer was already on scene; the officer "pounded on the door" of the house to check if anyone was inside. After no one answered, the fire captain opened a gate and entered the backyard.

The fire captain testified he "smelled smoke in the air that wasn't consistent of, like, cooking." He began investigating to confirm there was no imminent danger. Looking around for any active fire, he found none. Because there was still an odor of smoke, he and four other firefighters "continued to search around the back." The smell was "around the entire backyard," not coming from an identifiable place. There were some test tubes and chemistry equipment on the ground, as well as a homemade toy rocket that looked burned. Then the captain noticed a closed shed. No smoke was coming from it, nor did the smell of smoke seem to originate from there. He opened the shed as part of his fire investigation because he wanted "to make sure everything is clear."

Inside the shed was a metal cabinet. In his testimony, the captain candidly admitted there was nothing specific about the cabinet that made him think he should look inside: "Q: Was there anything about the shed in particular, the cabinet in particular that made you feel that you needed to check that area? [¶] A: Not in particular." Still, he opened the cabinet, and saw bottled chemicals he was not familiar with. Since he did not know what they were, he called the hazardous materials team to respond. Police were also called back to the scene.

The police ultimately obtained a search warrant, based in part on the chemicals found in the cabinet. After the search warrant was executed, the district attorney charged defendant with numerous offenses for possessing explosives and explosive materials. Defendant moved to suppress evidence obtained from the fire captain's initial, pre-warrant search of the backyard, shed, and cabinet.

II. DISCUSSION

On appeal from the denial of a motion to suppress, we defer to the trial court's factual findings that are supported by substantial evidence. We then apply our independent judgment to decide the legal question of whether those facts establish circumstances justifying a warrantless search, in this case exigency. ( People v. Duncan (1986) 42 Cal.3d 91, 98, 227 Cal.Rptr. 654, 720 P.2d 2.) The legal question is extremely close in this case. Our decision is guided by well-established Fourth Amendment principles: as a recognized extension of the home, the area and containers searched here are entitled to the highest degree of privacy protection our Constitution affords. And any exceptions to that protection must be, in the words of the Supreme Court, " ‘jealously and carefully drawn.’ " ( Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564.)

The Fourth Amendment to the United States Constitution prohibits warrantless searches of places where someone has a reasonable expectation of privacy. ( Coolidge v. New Hampshire, supra , 403 U.S. at p. 454, 91 S.Ct. 2022.) Since privacy expectations are particularly strong in the home, warrantless searches of residences are presumed invalid. ( Payton v New York (1980) 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639.) Indeed, " ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ " ( Id. at p. 585, 100 S.Ct. 1371.) The search in this case is considered a home search for Fourth Amendment purposes, because it occurred within the "curtilage" (the area immediately surrounding and associated with the home). ( Florida v. Jardines (2013) 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495.) The close connection between the curtilage and the home means that the curtilage is entitled to the same degree of privacy protection as the home itself. ( California v. Ciraolo (1986) 476 U.S. 207, 212, 106 S.Ct. 1809, 90 L.Ed.2d 210 ["The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened."].)

Recognized exceptions to the general rule against warrantless home searches must be narrowly construed to prevent the exceptions from swallowing the important Fourth Amendment right. (See Coolidge v. New Hampshire, supra , 403 U.S. at p. 454, 91 S.Ct. 2022.) One exception is when an exigent circumstance makes the needs of law enforcement so compelling that a warrantless search becomes objectively reasonable. ( Kentucky v. King (2011) 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865.) The exigency asserted here is "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property."

( People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)

It was the prosecution's burden to show the fire captain's search of the cabinet was a "swift action [necessary] to prevent imminent danger." ( People v. Smith (2020) 46 Cal.App.5th 375, 385–386, 260 Cal.Rptr.3d 68.) In our independent view, the prosecution did not meet that burden. Key to our decision is the principle that the justification for searching based on exigent circumstances "ends when the emergency passes." ( People v. Duncan (1986) 42 Cal.3d 91, 99, 227 Cal.Rptr. 654, 720 P.2d 2.) And here, the emergency which may have existed when fire personnel arrived on scene was no longer apparent when the fire captain opened the cabinet inside the shed.

Whether exigent circumstances justify a search depends on the circumstances known to the officer at the time of the search. ( People v. Duncan, supra , 42 Cal.3d at p. 99, 227 Cal.Rptr. 654, 720 P.2d 2 ) According to his testimony, the fire captain initially entered the backyard because of the neighbor's statement about seeing smoke "and also the initial report of a structure fire coming from the house." That action was reasonable and permissible under the Fourth Amendment because it was premised on a specific, articulated exigency sufficient to justify warrantless entry -- a possible house fire. But by the time the fire captain became aware of the cabinet, the circumstances had changed significantly. Contrary to the initial report, the house was not on fire at all. And after an inspection of the backyard and a look inside the shed, there did not seem to be an active fire anywhere on the premises. Nor was there any visible smoke, only a persistent odor in the general area that was not consistent with cooking. We must evaluate whether there was an exigency sufficient to justify the search of the cabinet based on the circumstances known to the fire captain at the time of that search—which, again, had changed substantially from the time he arrived. The question thus becomes: Does the persistent odor of unspecified smoke allow for a warrantless search of a cabinet within a shed in a backyard? In this case the Fourth Amendment's strong protection of the right to privacy within the home requires us to answer that question in the negative.

We acknowledge that the smell of an unspecified kind of smoke, the source of which is not apparent, can justify further investigation and warrantless entry. But in this particular situation, it did not rise to the level of an emergency sufficient to bypass obtaining a search warrant for the contents of a cabinet which did not appear to be the source of the smell. We are not persuaded that opening the cabinet in the shed was necessary to avoid imminent danger to life or serious property damage, given that the urgency of the situation had dissipated. Indeed, the fire captain's testimony was that nothing "in particular" about the cabinet led him to open it. The exigent circumstances exception therefore does not extend to the cabinet search. Application of the exception requires both a specific articulation of an emergency threatening life or destruction of property, and an explanation of why the action in question was immediately necessary to address the specified emergency. With regard to the cabinet search, we see neither in this record.

People v. Duncan, supra , 42 Cal.3d 91, 105, 227 Cal.Rptr. 654, 720 P.2d 2, illustrates the kind of specific, articulable facts which will support the existence of an...