Filed 5/2/18 Miller v. Department of Motor Vehicles CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


NICHOLAS DAVID MILLER,
Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.

A147050

(Humboldt County
Super. Ct. No. CV 140798)


Nicholas David Miller was arrested for driving under the influence (Veh. Code, § 23152, subd. (a)) and his driving privilege was suspended by the Department of Motor Vehicles (DMV) following an administrative per se hearing, at which the hearing officer found Miller’s arrest was lawful. Miller appeals from a judgment denying his petition for writ of mandate to set aside the suspension of his driver’s license. Miller contends that the suspension should be set aside because he was unlawfully arrested. We agree that Miller’s arrest was unlawful and that the DMV could not therefore suspend his license. Accordingly, we reverse the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2014, at 1:38 a.m., California Highway Patrol (CHP) Officer Christopher Pettyjohn received a dispatch to investigate a vehicle “off the side of the road,” in an unincorporated area of Humboldt County. Officer Pettyjohn arrived at the location at 2:03 a.m., where he discovered a moderately damaged car stuck to a utility pole. The exact time of the collision was unknown. A license plate search revealed that the car was registered to Miller, who lived about two miles away from the collision site.
According to Officer Pettyjohn, CHP Officers Drefke and Adams were dispatched to Miller’s residence “to see if he still lived at the address and to check his well-being.” Officer Pettyjohn explained that it was typical procedure to verify that the registered owner still owned the vehicle.
Upon arriving at the residence, Miller’s roommate answered the door and allowed Officer Adams to enter the home. Once inside the house, Officer Adams found Miller sleeping in his bedroom. Inside the bedroom, Officer Adams awakened Miller and “had him come out to the front yard” to wait for Officer Pettyjohn to arrive.
Officer Pettyjohn arrived at Miller’s residence at 3:18 a.m. to find Miller outside in his boxer shorts and a t-shirt, unharmed, and talking with Officers Adams and Drefke. Officer Pettyjohn spoke with Miller to “finish up the collision investigation . . . .” When Officer Pettyjohn asked Miller what had happened, he said “he crashed his vehicle” around 1:00 a.m. and planned on taking care of it in the morning. During this conversation, Officer Pettyjohn observed that Miller smelled strongly of alcohol and had watery eyes. When Officer Pettyjohn asked Miller how much alcohol he had consumed, Miller said “two beers.” Miller said that he had not consumed any alcohol after the collision. Officer Pettyjohn had Miller complete a series of field sobriety tests, which he failed to perform as demonstrated. Miller submitted to formal breath tests at 3:44 a.m. and 3:46 a.m., which revealed he was more than twice the legal limit. Based on Miller’s admissions of driving and being involved in a collision, and of drinking before driving, as well as his objective signs of intoxication, his failed field sobriety tests, and his breath-alcohol content exceeding .08 percent, Officer Pettyjohn arrested appellant for driving under the influence of alcohol.
The DMV suspended Miller’s license. Miller requested an administrative hearing to determine whether the suspension of his license was justified.
A DMV hearing officer held an administrative hearing on November 18, 2014, at which Officer Pettyjohn was the only witness to testify. Miller did not appear at the hearing but was represented by counsel. In addition to Officer Pettyjohn’s testimony, the evidence included: 1) Officer Pettyjohn’s traffic collision report; 2) Officer Pettyjohn’s arrest report; 3) the results of Miller’s breath tests; and 4) Miller’s driving record printout.
On November 26, 2014, the hearing officer issued findings and a decision suspending Miller’s license for four months, from December 5, 2014 through April 4, 2015. The hearing officer determined that Miller was lawfully arrested based, in part, on the fact that the officers were given permission to enter the home where Miller was contacted. The hearing officer further determined that Officer Pettyjohn had dispatched his fellow officers to Miller’s home to check on him and to assist in the collision investigation.
On December 10, 2014, Miller filed a petition for writ of mandate in the trial court to challenge the DMV’s suspension of his license. (Code Civ. Proc., § 1094.5; § 13559.) Miller alleged that he was improperly detained because the officers did not have reasonable cause to believe he had been driving the vehicle or that the car had crashed because the driver was under the influence. He argued that the only thing connecting him to the car was the vehicle registration. Also, no open containers, broken liquor bottles or drugs were found in or near the car. Miller further argued that it was only after the warrantless entry into his bedroom and ensuing unlawful detention that the officers learned that Miller had been driving the car sometime “ ‘around 1:00 a.m.’ ” Miller alleged there were no exceptions to the warrant requirement as there was no evidence of hot pursuit or any imminent physical danger.
The trial court ruled against Miller and entered judgment in favor of the DMV. The basis for the trial court’s ruling was that the exclusionary rule did not apply to exclude the evidence ascertained after Officer Adams entered Miller’s bedroom.
II. DISCUSSION
A. Standard of review
“In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘ “whether the weight of the evidence supported the administrative decision.” ’ ” (Lake v. Reed (1997) 16 Cal.4th 448, 456.) On appeal, we “ ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘ “We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision.” ’ ” (Id. at p. 457.) “If the facts are undisputed and the issue presented is a question of law . . ., we conduct an independent review.” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484.)
B. General Principles
“It is a criminal offense to drive while under the influence of alcohol or a drug, or to drive with 0.08 percent or more, by weight, of alcohol in the blood. [Citations.] In addition to criminal sanctions, the Legislature has established administrative procedures whereby the DMV may suspend a person’s driver’s license for driving under the influence or with a specified blood-alcohol level.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 846, (Gikas), fn. omitted.)
Under the administrative per se statutes, “when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a ‘notice of the order of suspension.’ (§§ 13353.2, subds. (b) & (c), 23158.5, subds. (a) & (b) [now § 13382, subds. (a) & (b)].) The notice informs the person that his or her driver’s license will be suspended 45 days from the date of service, states the reason and statutory grounds for the suspension, and explains the person’s right to seek an administrative hearing. (§§ 13353.2, subd. (c), 13353.3, subd. (a).)” (Gikas, supra, 6 Cal.4th at p. 846.) “The DMV automatically reviews the suspension order to determine, by a preponderance of the evidence, whether: (1) the arresting officer had reasonable cause to believe the person was driving in violation of section 23152 or section 23153; (2) the person was placed under arrest; and (3) the person was driving with 0.08 percent or more, by weight, of alcohol in the blood. (§ 13557.) The determination is based upon the officer’s report and any evidence accompanying the report. (§ 13557, subd. (a).) The person may request a hearing with the DMV limited to these issues, at which additional evidence may be presented.” (Gikas, supra, 6 Cal.4th at pp. 846-847.)
C. Miller’s Arrest Was Unlawful
Although not stated expressly in section 13557, it has long been acknowledged that “[i]n order for the DMV to validly suspend a person’s driver’s license, ‘the underlying arrest must have been lawful.’ ” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 168 citing Gikas, supra, 6 Cal.4th at p. 847; see also Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760.) Thus, as the hearing officer acknowledged, one of the issues presented for resolution at the administrative hearing was whether Miller was lawfully arrested.
The standard governing the lawfulness of warrantless arrests is well established. “The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” (Devenpeck v. Alford (2004) 543 U.S. 146, 152.) When the arrest occurs in the home additional principles come into play. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 586.) Indeed, “the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” (Id. at p. 585.)
The presumption of unreasonableness that attaches to a warrantless entry into the home “can be overcome by a showing of one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement [citation], such as ‘ “hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling” ’ [citation].” (People v. Celis (2004) 33 Cal.4th 667, 676.) The exceptions have evolved into two generally recognized exceptions: exigency and community caretaking. (See People v. Ray (1999) 21 Cal.4th 464, 471-472, 480-482, (concur opn. of George, C.J., Kennard, J. & Baxter, J.).) “These exceptions are ‘narrow’ and their boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly interfere with the sanctity of the home. [Citation.]” (Hopkins v. Bonvicino (9th Cir.2009) 573 F.3d 752, 763 (Hopkins).)
The exigency exception stems from police officers’ investigatory function: it allows an officer to enter a residence without a warrant if he has “probable cause to believe that a crime has been or is being committed and a reasonable belief that [his] entry” is needed to stop the destruction of evidence or a suspect’s escape or carry out other crime-prevention or law enforcement efforts. (Hopkins, supra, 573 F.3d at p. 763.) “The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires 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. Celis, supra, 33 Cal.4th 667, 676, italics omitted.)
By contrast, under the community caretaking exception, circumstances short of a perceived emergency may justify a warrantless entry. (Ray, supra, 21 Cal.4th at p. 473.) “ ‘[C]ommunity caretaking’ . . ., [is] ‘totally divorced from’ ” criminal investigation. (Colorado v. Bertine (1987) 479 U.S. 367, 381.) Pursuant to the community caretaking exception, police officers are expected to check on the welfare of people who cannot care for themselves or need emergency services. (Ray, supra, 21 Cal.4th at 471-472.) The “emergency aid” doctrine is “a subcategory of the community caretaking exception,” and permits officers to make a warrantless entry of a dwelling to render emergency aid and assistance to a person who they reasonably believe to be in distress and in need of that assistance. (Ray, supra, 21 Cal.4th at pp. 470, 471.) Under the emergency aid doctrine, an officer may enter a home without a warrant to investigate an emergency that threatens life or limb if the officer has objectively reasonable grounds to believe that an emergency exists and that his immediate response is needed. (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 401.) “This justification requires specific, articulable facts indicating the need for ‘ “swift action to prevent imminent danger to life or serious damage to property. . . .” [Citation.]’ [Citations.]” (Ray, supra, 21 Cal.4th at pp. 472-473.)
“The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?” (Ray, supra, 21 Cal.4th at pp. 476-477.) However, not every perceived peril will “justify a warrantless entry to conduct further inquiry. Rather, as in other contexts, ‘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.’ [Citation.]” (Id. at p. 477.)
The California Supreme Court discussed the community caretaking function of police work in Ray, supra, 21 Cal.4th at page 477, a plurality opinion addressing whether the function operates as an exception to the warrant requirement for entry into a private home. In Ray, police answered a radio call reporting an apartment unit with the front door ajar. When the officers looked inside, it appeared the apartment had been ransacked. No one responded to the officers’ calls into the home. The officers believed they had either stumbled onto a burglary in process or that there may have been an unresponsive victim of a burglary inside. Upon entering the premises, the officers saw “a large quantity of suspected cocaine and money in plain view.” (Id. at p. 468.)
In Ray, six justices voted to affirm the case and approved the search, but they split on which theory supported affirmance. Three justices in the lead opinion distinguished the emergency aid doctrine and the community caretaking exception. (Ray, supra, 21 Cal.4th at p. 471.) The lead opinion observed that police have a myriad of duties unrelated to criminal investigation, which are collectively referred to as “ ‘community caretaking functions.’ ” (Ray, supra, 21 Cal.4th at pp. 472, 467.) The exception allows an entry into a private home based on circumstances short of a perceived emergency for two reasons: to protect a person or property from harm. (Id. at p. 473.) In other words, the officers view the occupant as a potential victim rather than as a potential target of an investigation or as a potential suspect. (Id. at p. 471.)
The lead opinion held the officers’ warrantless entry through the open front door was not valid under the emergency aid component of community caretaking. (Ray, supra, 21 Cal.4th at p. 472.) While the officers were concerned about 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. [Citation.]” (Id. at p. 473.) Nevertheless, the lead opinion held the officers’ warrantless entry was valid under the community caretaking exception because they “acted reasonably to protect the safety and security of persons and property when they briefly entered defendant’s residence without a warrant and then observed contraband in plain view.” (Ray, supra, 21 Cal.4th at p. 468.) “While the facts known to the officers may not have established exigent circumstances or the apparent need to render emergency aid, they warranted further inquiry to resolve the possibility someone inside required assistance or property needed protection. In such circumstances, ‘entering the premises was the only practical means of determining whether there was anyone inside in need of assistance [or property in need of protection].’ [Citations.]” (Id. at p. 478.)
The facts in this case demonstrate that the officer’s warrantless entry into Miller’s bedroom was not authorized under the emergency aid component of the community caretaking exception. As in Ray, the officer did not have any facts that would have led a reasonable person to believe entry was necessary to aid life or limb. While there had been a report of a single car collision, that report came nearly two hours before the officers arrived at Miller’s house. At the scene, there was nothing to suggest the driver or any possible passengers had suffered any serious injuries. There was no report that the air bags had deployed or that broken glass and/or blood had been found at the scene. Indeed, the vehicle had been described as having only sustained “moderate damage.” At Miller’s house there was also no evidence that Miller or a passenger had been injured. Although Miller’s roommate permitted Officer Adams to enter the house and its common areas, the roommate did not have authority to grant access to Miller’s private bedroom. (See, e.g., Stoner v. California (1964) 376 U.S. 483, 487-488 [search of absent guest’s hotel room unconstitutional despite consent of hotel clerk]; Chapman v. United States (1961) 365 U.S. 610, 616-617 [search of absent tenant’s apartment unconstitutional despite consent of landlord].) As nothing suggested that Miller was in danger of physical harm, Officer Adam’s warrantless entry into Miller’s bedroom was not justified under the emergency doctrine.
As for the broader community caretaking exception, Ray explained that “ ‘[o]ne is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the other or a third person . . . .’ [Citations.]” (Ray, supra, 21 Cal.4th at p. 474, italics added.) It matters not whether a police officer, a firefighter, or a paramedic responds to the call of a possible injury. (Ibid.) As a matter of common sense, it would be an anomalous result to deny a police officer charged with protecting the citizenry the privilege accorded every other individual who acts to aid another. (Ibid.) “ ‘A warrantless entry of a dwelling is constitutionally permissible where the officers’ conduct is prompted by the motive of preserving life and reasonably appears to be necessary for that purpose. [Citations.]’ ” (Ibid., italics added.)
In adopting a community caretaking exception, Ray emphasized that “the authority granted law enforcement is narrowly delimited by the known facts viewed in light of the rationale for the exception. ‘The privilege to enter to render aid does not, of course, justify a search of the premises for other purposes. [Citation.] To the contrary, the warrantless search of a dwelling must be suitably circumscribed to serve the exigency which prompted it. [Citations.]’ [Citation.] ‘The officer’s post-entry conduct must be carefully limited to achieving the objective which justified the entry-the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance [ ] and to provide that assistance [ ].’ [Citation.]” (Ray, supra, 21 Cal.4th at p. 477, italics added.)
Here, the explanation for Officer Adams’s warrantless entry into Miller’s bedroom was based on the twin goals of checking on Miller’s well-being and following up on the vehicle collision. Yet, when Officer Adams discovered Miller was asleep in his bed, Officer Adams did not say, “I’m glad to see that you are safe, sir; I’ll be on my way now.” He did not say, “Sorry for the disturbance, but your vehicle was located on the side of the road, stuck to a utility pole.” No, instead he directed Miller outside, clad only in his boxers and t-shirt, to await the arrival of Officer Pettyjohn.
Miller contends Officer Adams’s conduct resulted in an involuntary detention. We agree. “A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, ‘taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” ’ ” (Kaupp v. Texas (2003) 538 U.S. 626, 629 (Kaupp), quoting Florida v. Bostick (1991) 501 U.S. 429, 437.)
In Kaupp, supra, 538 U.S. 626, the United States Supreme Court held that the seizure of a seventeen-year old defendant who was awakened in his bedroom at three in the morning by three police officers, one whom stated, “ ‘we need to go and talk,’ ” taken from his home in handcuffs, without shoes, in his underwear, violated the Fourth Amendment. (Kaupp, supra, 538 U.S. at pp. 631-632.)
The Court found this detention was “ ‘in important respects indistinguishable from a traditional arrest’ ” and therefore required probable cause or judicial authorization to be legal. (Kaupp, supra, 538 U.S. at p. 631.) The Court was not persuaded that the defendant’s “ ‘ “Okay” ’ ” in response to the officer’s statement established consent under the circumstances. (Ibid.) Rather, there was no reason to think the defendant’s answer “was anything more than ‘a mere submission to a claim of lawful authority.’ [Citations.]” (Ibid.) In any event, the Court explained that “[e]ven ‘an initially consensual encounter . . . can be transformed into a seizure or detention within the meaning of the Fourth Amendment.’ [Citation.]” (Id. at p. 632, quoting INS v. Delgado (1984) 466 U.S. 210, 215.)
“[A]t some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protections of the Fourth and Fourteenth Amendments.” (Hayes v. Florida (1985) 470 U.S. 811, 815-816.) Although there are obvious distinctions between the instant case and Kaupp—i.e. Miller was not a minor or handcuffed—it cannot be seriously suggested that when Officer Adams roused Miller from his slumber shortly after 3:00 a.m. and directed him outside, dressed only in his boxer shorts and t-shirt, to wait with Officer Drefke for the arrival of a third officer, a reasonable person in his situation would have thought he was standing outside in his underwear as a matter of choice, free to change his mind and go inside and back to bed.
That Miller complied with the officer’s direction to go outside indicates nothing more than his submission to authority. (See Kaupp, supra, 538 U.S. at p. 631.)
Confined to the bare bones record before us, we conclude that Miller’s detention was not lawful. A vehicle involved in a single-car accident without more does not indicate that the driver was under the influence of alcohol, nor do these facts objectively indicate that there was any criminal activity afoot or that Miller was in danger of any physical harm. Since Miller’s detention was not lawful, his arrest, following his failed field sobriety and breath tests, was similarly unlawful. (Gikas, supra, 6 Cal.4th at p. 873, fn. 5 (dis. opn. of Kennard, J.) [“A prerequisite to a lawful arrest is a lawful detention”].) Consequently, the suspension of Miller’s license was not permitted under section 13557.
We would be remiss to not acknowledge the danger drunk drivers pose to society and the vital role police officers play in protecting the community. The police officer, “as a jack-of-all emergencies, has ‘complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses’; by default or design [a police officer] is also expected to ‘aid individuals who are in danger of physical harm,’ ‘assist those cannot care for themselves,’ and ‘provide other services on an emergency basis.’ ” (3 LaFave, Search and Seizure (5th ed. 2012) Search for purposes other than finding evidence, § 5.4(c), pp. 263-264, fns. omitted.) Accordingly, it has long been recognized that “[n]ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose. [Citation.]” (People v. Roberts (1956) 47 Cal.2d 374, 377.)
However, in the course of choosing between the Fourth Amendment and the preservation of life, reasonableness is the key. (See Cady v. Dombroski (1973) 413 U.S. 433, 439.) Any number of specific and articulable facts could have made the warrantless arrest lawful in this case—observable signs at the collision site, such as deployed airbags, blood in or around the car, broken glass, or severe damage to the car, could have formed the basis for the reasonable belief that someone had been injured in the crash. The presence of alcohol bottles or drug paraphernalia at the site could have formed the basis that the driver had been intoxicated at the time of the crash. Additionally, once at Miller’s house, his roommate could have expressed concern for his well-being or provided other details suggesting that Miller had been involved in a car crash and had been intoxicated at the time of impact. Officer Adams could have asked the roommate about Miller’s well-being and/or could have asked Miller if he was injured. The record here, however, contains no such reasonable, articulable facts.
D. Without a Lawful Arrest, There Can Be No Suspension of Driving Privileges
Asserting that the exclusionary rule does not apply in DMV hearings, respondent argues that evidence of Miller’s intoxication was properly considered. As discussed, it is well-settled that the DMV may not suspend or revoke a person’s license unless that person is “ ‘lawfully arrested.’ ” (Mercer v. Department of Motor Vehicles, supra, 53 Cal.3d at p. 760.) Discussion of the exclusionary rule is a moot point since a necessary precondition for suspension of Miller’s license, i.e., that he was lawfully arrested, did not occur.
III. DISPOSITION
The judgment is reversed. The superior court is directed to vacate the judgment denying Miller’s petition for writ of mandate and enter a new judgment granting the petition. Miller shall recover his costs on appeal.


 




_________________________
REARDON, J.


We concur:


_________________________
STREETER, ACTING P. J.


_________________________
SMITH, J.*





















*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A147050 Miller v. DMV