Tamborino v. Superior Court

• Citation: 41 Cal.3d 919,719 P.2d 242,226 Cal.Rptr. 868
• Court: United States State Supreme Court (California)
• Decision Date: 16 June 1986
• Parties: , 719 P.2d 242 Danny Joe TAMBORINO et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party in Interest. L.A. 32007.

Page 868

226 Cal.Rptr. 868

41 Cal.3d 919, 719 P.2d 242

Danny Joe TAMBORINO et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent The PEOPLE, Real Party in Interest.

L.A. 32007.

Supreme Court of California In Bank.

June 16, 1986.

Ronald Y. Butler, Public Defender, Frank Scanlon and William J. Kopeny, Asst. Public Defenders, James Dean Allen, Richard Aronson, Donald J. Aycob and Richard Schwartzberg, Deputy Public Defenders, Santa Ana and Thomas A. Reilly, Laguna Beach, for petitioners.

No appearance for respondent.

Cecil Hicks, Dist. Atty., Michale R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Craig McKinnon, Deputy Dist. Attys., for real party in interest.

Thomas W. Sneddon, Jr., Dist. Atty. (Santa Barbara), and Gerald McC. Franklin, Senior Deputy Dist. Atty., as amici curiae on behalf of real party in interest.

LUCAS, Justice.

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 handcuffed 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 defendant's 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, 103 Cal.Rptr. 281, 499 P.2d 961.) 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, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 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, 195 Cal.Rptr. 733.) 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...