P. v. Torres

Filed 3/14/07 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, John I. Kelly and Lee P. Felice, Judges.

Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

An information was filed in Kern County Superior Court, charging appellant James A. Torres with attempted kidnapping of a child under the age of 14 (Pen. Code,^[1] 208, subd. (b), 664; count 1), attempting to remove or take a peace officers firearm while resisting said officer ( 148, subd. (d); count 2), and resisting an executive officer in the performance of his or her duty ( 69; count 3). Appellants first trial ended in a mistrial when jurors deadlocked on all counts. Upon retrial, a jury acquitted appellant on count 1 and all lesser included offenses, convicted him on count 3, and, with respect to count 2, acquitted him of the charged offense, but convicted him of the lesser included misdemeanor offense of resisting arrest ( 148, subd. (a)(1)). Imposition of sentence was suspended on count 3, and appellant was placed on probation for three years on condition that he serve one year in jail. A concurrent 90-day jail term was imposed on count 2.^[2] He now appeals, claiming his suppression motion should have been granted and that various errors occurred at trial.

Although appellant raises several issues, we find one--the erroneous denial of his suppression motion--to be dispositive. As we shall explain, we agree with appellant that the officers warrantless entry into his home and his arrest were unconstitutional because they were not justified by exigent circumstances. Since appellants convictions depended solely on evidence obtained and events occurring after the illegal entry, they must be reversed.^[3]

It is settled that a trial court hearing a motion to suppress evidence acts as the finder of fact. Under standard principles of appellate review, we uphold its factual findings, whether express or implied, where supported by substantial evidence.^[4] (People v. Glaser (1995) 11 Cal.4th 354, 362; cf. People v. Johnson (1980) 26 Cal.3d 557, 578.) In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment to the United States Constitution, we exercise our independent judgment. (People v.Glaser, supra, at p. 362; cf. People v. Lawler (1973) 9 Cal.3d 156, 160.)

At the outset of the hearing on the suppression motion, the parties stipulated that police did not possess an arrest or search warrant. Viewed in the light most favorable to the trial courts ruling (In re Frank V. (1991) 233 Cal.App.3d 1232, 1237, fn. 1), evidence adduced at the hearing showed that at 7:40 a.m. on October 6, 2004, Bakersfield Police Officer Grove and another officer were dispatched to the 3300 block of a particular street in response to a report of an attempted kidnapping that had just occurred. Upon arrival, Grove spoke to S.A., who related that she had been walking from her house to the bus stop when a small Chevrolet S-10 pickup drove by with a Hispanic male in his 40s, who waved at her. When she reached the bus stop, she sat down on the curb to wait for the bus. The pickup returned. The male got out, approached her, grabbed her by the arm, and attempted to pull her toward the vehicle. She was able to escape when two schoolmates intervened. She then ran home and called the police.

S.A. gave Grove a description of the pickup and its license number. Grove forwarded this information to other officers involved in the investigation, including Officer Wells. Grove also gave Wells a description of the suspect, a Hispanic male with a large or heavy build, believed to be in his 40s, and wearing a black T-shirt or dark clothing.

A short time later, Wells located the suspect vehicle parked in front of a residence in the 3200 block of the street.^[5] Wells kept an eye on the house. At one point, he saw the front door open. A Hispanic male backed out of the doorway and then walked back into the residence. The man, who was subsequently identified as appellant, had a heavy build and was wearing a black T-shirt.

Shortly after, Wells and Officer Cegielski went to the door of the residence and knocked. A Hispanic male in his early 20s answered. Wells asked if there was anyone else in the house with him, and he replied that his brother was present. Wells could see that there was a Hispanic female in the house as well. When he asked the young man about her, he replied that she was his sister. When Wells inquired further, the young man hesitated for a moment and then said that his father was asleep in the other room. As appellant was not present in the room and was consistent in age with someone who could be the father of the young man, Wells concluded that the young mans father was the person for whom he was looking.

Wells asked the three subjects from the living room to step out of the house, then he and Cegielski entered the residence. Cegielski located appellant, at which time officers attempted to arrest him based on the information Wells had received from Grove about what had happened a few minutes earlier. It was Wellss understanding that the offense was a potentially violent felony.

At the conclusion of the hearing, the prosecutor stipulated that there was no immediate threat or danger inside the residence at the time Wells and Cegielski entered, but argued that the warrantless entry and arrest were justified based on the doctrine of fresh pursuit. The trial court denied the motion to suppress based on the exigency of fresh or hot pursuit. We find this to have been error, as the evidence failed to establish the existence of a true exigency.

The right of the people to be secure in their houses , against unreasonable searches and seizures, shall not be violated,  (U.S. Const., 4th Amend.) This language unequivocally establishes the proposition that [a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. [Citation.] (Payton v. New York (1980) 445 U.S. 573, 589-590.) Accordingly, a warrantless entry presumptively violates the constitutional proscription against unreasonable searches and seizures. [Citation.] The presumption of unlawfulness can be overcome, however, by a limited number of carefully circumscribed exceptions to the warrant requirement. [Citations.] One exception is the presence of exigent circumstances. When police are confronted by 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] [citation], the failure to comply with the warrant requirement is justified. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 989; accord, Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750 (Welsh); Payton v. New York, supra, 445 U.S. at p. 590; Mincey v. Arizona (1978) 437 U.S. 385, 390, 392-393; People v. Ramey (1976) 16 Cal.3d 263, 276.) The United States Supreme Court has emphasized that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests (Welsh, supra, 466 U.S. at pp. 749-750), and that court has shown hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue,  (Id. at p. 750.)

To meet his burden of overcoming the presumption that the entry and arrest in this case were unreasonable because they were made without a warrant (see Welsh, supra, 466 U.S. at p. 750), respondent relies, as did the prosecutor in the trial court, on the exigent circumstance of fresh or hot pursuit. (See Terry v. Ohio (1968) 392 U.S. 1, 20 [referring to hot pursuit as instance of exigent circumstances].) We assume these terms are interchangeable (see People v. White (1986) 183 Cal.App.3d 1199, 1204; People v. Keltie (1983) 148 Cal.App.3d 773, 779); the exception they encompass must be narrowly construed. (People v. Williams (1988) 45 Cal.3d 1268, 1298.)

Hot pursuit requires an immediate or continuous pursuit of the [felon] from the scene of a crime (Welsh, supra, 466 U.S. at p. 753; People v. Williams, supra, 45 Cal.3d at p. 1298), although it is not necessary that the suspect be kept physically in view at all times (People v. Escudero (1979) 23 Cal.3d 800, 810 (Escudero)), or that pursuing officers personally follow the fleeing suspect from the crime scene to the building they enter without a warrant (People v. White, supra, 183 Cal.App.3d at pp. 1203-1204).^[6] It is necessary, however, that, at some point during the course of events, there be an actual pursuit, even if it is a short one: [H]ot pursuit means some sort of a chase, but it need not be an extended hue and cry in and about (the) public streets. (United States v. Santana (1976) 427 U.S. 38, 42-43.)

Here, there was no evidence of a true pursuit, either by citizens who witnessed events or by law enforcement officers. There was simply an investigation that quickly led to appellant. Pre-Welsh cases arguably suggest this was sufficient to constitute hot or fresh pursuit. (See, e.g., People v. Johnson (1981) 30 Cal.3d 444, 446-447, 450-452 [at scene of shooting, police obtained descriptions of perpetrator and his vehicle; within 75 minutes, defendants vehicle was discovered at his fathers house; father directed officers to home of defendants girlfriend, inside which arrest was made]; Escudero, supra, 23 Cal.3d at pp. 804-806, 809-811 [citizen surprised defendant in act of residential burglary and immediately gave chase, then promptly gave police defendants description and registration information from abandoned getaway car; officers already actively following leads went directly to defendants residence and arrested defendant, with entire sequence of events taking approximately one hour]; People v. Gilbert (1965) 63 Cal.2d 690, 696-699, 705-707, judg. vacated on other grounds Gilbert v. California (1967) 388 U.S. 263 [less than two hours after bank robbery, police identified one of two escaped robbers and obtained his address from third perpetrator; believing at least one robber was inside residence, officers entered; although residence was unoccupied, items of evidence seen therein were properly admitted]; see also People v. White, supra, 183 Cal.App.3d at pp. 1202-1204 [rape victim contacted police between 5:00 and 6:00 a.m.; officer arrived at her location at 6:45 a.m. and then proceeded directly to defendants residence, where he entered and found evidence of rape; although hot pursuit found, conviction reversed because officer lacked requisite belief defendant was inside].)

In Welsh, however, the United States Supreme Court found a claim of hot pursuit unconvincing because there was no immediate or continuous pursuit of [Welsh] from the scene of a crime. (Welsh, supra, 466 U.S. at p. 753.) There, shortly before 9:00 p.m., a citizen saw Welsh drive erratically and then swerve off the road. The citizen positioned his vehicle so as to block Welshs car from returning to the street, and the police were summoned. Meanwhile, Welsh walked away. When the police arrived a few minutes later and examined the cars registration, they learned Welshs name and that he lived within easy walking distance of the scene. The police proceeded to his home, arriving about 9:00 p.m., and, upon gaining entry to the house, arrested Welsh. (Id. at pp. 742-743.)

In our view, if the police conduct in Welsh did not constitute hot pursuit, neither did the police conduct in the present case. Moreover, since exigent circumstances (of which hot pursuit is one) connote an emergency situation requiring swift action, it stands to reason that something more is required to justify a warrantless entry into a home than merely the urgency inherent in the fact a crime recently has been committed. To hold otherwise would mean that police could enter a home, without a warrant and without consent, based merely on the fortuitous circumstance that the offense, investigation and entry were fairly contemporaneous in time. Such a holding would permit the exception to swallow the rule, a result the California Supreme Court has long warned against. (Escudero, supra, 23 Cal.3d at p. 811; People v. Smith (1972) 7 Cal.3d 282, 286.) Indeed, the California Supreme Court has implicitly recognized, even prior to Welsh, that pursuit of a fleeing felon, without more, does not necessarily justify a warrantless entry into a private dwelling. (Escudero, supra, 23 Cal.3d at p. 808, italics added [in appropriate circumstances the fresh pursuit of a fleeing felon may constitute a sufficiently grave emergency to justify an exception to the warrant requirement]; People v. Smith (1966) 63 Cal.2d 779, 797, italics added [fresh pursuit of a fleeing suspect who has committed a grave offense and remains dangerous to life and limb may constitute exceptional circumstances sufficient to justify a search without a warrant]; see also People v. Keltie, supra, 148 Cal.App.3d at p. 779 [hot pursuit exception applies where delay occasioned by obtaining warrant would permit escape of suspect in grave offense who remains dangerous; exception does not apply where suspect poses no imminent danger if allowed temporarily to remain at large].)^[7]

In light of the foregoing, we find it appropriate to consider not only the fact that, in the present case, officers arrived quickly on the scene and went to appellants residence within a matter of minutes, but also other factors pertinent to a determination whether the prosecution bore its heavy burden of demonstrating an urgent need such that the warrantless entry into appellants home, and his equally warrantless arrest, were justified. (Welsh, supra, 466 U.S. at pp. 749-750.)

Although the United States Supreme Court has yet to fully delineate the scope of the exigent circumstances exception, it has recognized Dorman v. U. S. (D.C. Cir. 1970) 435 F.2d 385 (Dorman) as a leading federal case defining exigent circumstances . (Welsh, supra, 466 U.S. at p. 751.) Dorman found the following factors relevant to a determination of exigent circumstances: First, that a grave offense is involved, particularly one that is a crime of violence . [] Second, that the suspect is reasonably believed to be armed. Delay in arrest of an armed felon may well increase danger to the community meanwhile, or to the officers at time of arrest. [] Third, that there exists a clear showing of probable cause to believe that the suspect committed the crime involved. [] Fourth, strong reason to believe that the suspect is in the premises being entered. [] Fifth, a likelihood that the suspect will escape if not swiftly apprehended. [] Sixth, the circumstance that the entry, though not consented, is made peaceably. [] Another factor to be taken into account, though it works in more than one direction, relates to time of entry--whether it is made at night. (Dorman, supra, 435 F.2d at pp. 392-393, fns. omitted.) The California Supreme Court has applied the Dorman factors (People v. Bacigalupo (1991) 1 Cal.4th 103, 122, judg. vacated and cause remanded Bacigalupo v. California (1992) 506 U.S. 802, reaffd. People v. Bacigalupo (1993) 6 Cal.4th 457; People v. Williams (1989) 48 Cal.3d 1112, 1138-1139), the presence or absence of any one of which is not conclusive; rather, the essential question is whether there was urgent need that justif[ied] the warrantless entry. [Citations.] (United States v. Crespo (2d Cir. 1987) 834 F.2d 267, 270.)

In applying these factors to the circumstances of the present case, we are mindful that [t]here 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. (People v. Ramey, supra, 16 Cal.3d at p. 276; accord, People v. Panah (2005) 35 Cal.4th 395, 465.) As a general rule, the reasonableness of an officers 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.] And 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.] (People v. Duncan (1986) 42 Cal.3d 91, 97-98.) The standard is an objective one: An action is reasonable under the Fourth Amendment, regardless of the individual officers state of mind, as long as the circumstances, viewed objectively, justify [the] action. [Citation.] The officers subjective motivation is irrelevant. [Citations.] (Brigham City, Utah v. Stuart (2006) ___ U.S. ___, ___ [126 S.Ct. 1943, 1948], italics omitted.)

Based on the evidence adduced at the suppression hearing, we conclude there was a clear showing of probable cause to believe appellant attempted to kidnap a child under age 14, that police had a strong reason to believe he was present in the home being entered, and that entry was peaceably made. We also conclude a grave offense was involved. Attempted kidnapping is, by statutory definition, a serious felony. ( 1192.7, subd. (c)(20), (39).) Moreover, attempted kidnapping of a child under age 14 is more serious than mere attempted kidnapping, as evidenced by the fact the Legislature has seen fit to prescribe a higher sentence for the offense if a child is involved. ( 208, subds. (a), (b), 664.) It does not matter whether police were aware that appellant called S.A. by the wrong name, or even if they suspected he may have mistaken her for his daughter; they were investigating a man who bodily tried to pull a youngster into his vehicle. They were entitled to act as if a very serious offense was involved.

On the other hand, officers had absolutely no reason to believe appellant was armed, and there was nothing but sheer speculation to suggest it was likely he would escape if not swiftly apprehended.^[8] We find this fatal to a claim that a sufficiently urgent situation existed in the present case so as to justify a warrantless entry into a home and arrest.

We have reviewed numerous cases involving hot pursuit and general exigent circumstances. We conclude they support both the requirement of a true emergency situation, regardless of whether the police investigation leads rapidly to the suspect, and our determination that such a situation was not shown by the totality of the circumstances to have existed here. (See and compare, e.g., Warden v. Hayden (1967) 387 U.S. 294, 297-299 [exigent circumstances found where citizen pursued armed robber who entered residence less than five minutes before police reached it; exigencies of situation made warrantless entry and search imperative, as police are not required to delay course of investigation if to do so would gravely endanger their lives or lives of others, and search of house was necessary to ensure suspect was only man present and police had control of all weapons that could be used against them or to effect escape]; People v. Bacigalupo, supra, 1 Cal.4th at pp. 122-123 [exigent circumstances found where defendant was suspect in double homicide and likely to be armed, and likelihood of flight was increased by fact he was foreign national who had recently come to California and was aware eyewitness could identify him]; People v. Williams, supra, 48 Cal.3d at pp. 1137-1139 [exigent circumstances found where defendant was suspected of murder and other violent offenses, was armed, had ready access to a car, and might, as a result of learning from friends or family that police were looking for him, dispose of evidence]; People v. Williams, supra, 45 Cal.3d at pp. 1289-1292, 1301-1302 [no hot pursuit or other exigent circumstances found where entry into hotel room was not made to press immediate or continuous pursuit of fleeing felon, suspect could not leave room without encountering police, and suspect could not remove murder weapon from room or destroy it]; People v. Johnson, supra, 30 Cal.3d at pp. 446-447, 451-452 [fresh pursuit found where police located suspect slightly more than 75 minutes after shooting; suspect was reasonably believed to be armed and had already shot one victim]; People v. Smith, supra, 63 Cal.2d at pp. 784-786, 795-798 [fresh pursuit found where manhunt began immediately; defendant had had fatal shootout with police while earlier evading apprehension]; People v. Gilbert, supra, 63 Cal.2d at pp. 696-698, 705-707 [fresh pursuit found where officers entered suspects residence approximately two hours after bank robbery; armed robbers had fatally shot police officer while escaping]; People v. Ortiz (1995) 32 Cal.App.4th 286, 293-295 [exigent circumstances found where officers walking down hotel hallway saw people packaging drugs through open hotel room door, justifying conclusion perpetrators would attempt to destroy contraband and escape if time taken to obtain warrant]; People v. Hampton (1985) 164 Cal.App.3d 27, 29-30, 34-35 [hot pursuit and other exigent circumstances found where officer gave intoxicated driver a ride home and confiscated what she said were her only car keys, but a short time later saw her driving again]; People v. Spain (1984) 154 Cal.App.3d 845, 848-850 [hot pursuit and other exigent circumstances found where, about an hour after police arrived at scene of fatal shooting, witness identified defendant as perpetrator; defendants mother emerged onto porch and confessed, whereupon officers followed her, seized a rifle, and arrested her, then proceeded into bedroom and arrested defendant; police were not required to accept mothers statement at face value, and reasonably could suppose perpetrator was still at large in house, armed with weapon, and willing to use it on police; defendants propensity to use weapon made him a walking exigent circumstance]; People v. Bradford (1972) 28 Cal.App.3d 695, 702-704 [hot pursuit and other exigent circumstances found where, during high-speed pursuit of armed robbers, suspects engaged in gun battle with pursuing police officers, then left behind one of their number, who was armed with a sawed-off shotgun and who fled into an apartment building].)

Since the circumstances, considered as a whole, fail to establish that the officers warrantless entry into appellants home was reasonable under the Fourth Amendment, all evidence obtained as a result of that entry, including observations and testimony, should have been suppressed. (People v. Mayfield (1997) 14 Cal.4th 668, 760; see Lockridge v. Superior Court (1970) 3 Cal.3d 166, 169; People v. Freeman (1990) 219 Cal.App.3d 894, 904-905; Kirby v. Superior Court (1970) 8 Cal.App.3d 591, 597.) Although the improper admission of such evidence at trial might very well have been harmless beyond a reasonable doubt with respect to attempted kidnapping (see People v. Danielson (1992) 3 Cal.4th 691, 708, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13), it clearly cannot be declared harmless with respect to the charges of which appellant was actually convicted.

The judgment is reversed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

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GOMES, J.

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^[1] All statutory references are to the Penal Code.

^[2] Appellant subsequently entered into a plea bargain in another case. By stipulation, he was resentenced in the present case to 16 months in prison, with said term to run concurrently to the 16-month term imposed in the other matter. The other case is not before us on this appeal.

^[3] Appellants suppression motion was heard prior to his first trial. He was not required to renew the motion following the mistrial (and, in fact, may have been precluded from doing so) in order to have its denial be cognizable on appeal. (People v. Williams (1979) 93 Cal.App.3d 40, 59-60; see  1538.5, subd. (i).)

^[4] To the extent the evidence was uncontradicted, we do not engage in substantial evidence review, but instead face pure questions of law. (People v. Fisher (1995) 38 Cal.App.4th 338, 341-342.)

^[5] Wells estimated that he located the vehicle around 8:00 a.m. Grove testified that appellants arrest could have occurred four to five minutes after Grove talked to S.A.

^[6] Appellant questions whether Escudero and other California opinions decided prior to Welsh (or, as in the case of People v.White, supra, 183 Cal.App.3d 1199, which follow the earlier California Supreme Court authorities without mentioning Welsh) have survived that opinion. To the extent there is conflict, we follow Welsh: Exclusion of relevant, unlawfully obtained evidence is permitted only if required by the United States Constitution (In re Lance W. (1985) 37 Cal.3d 873, 890), and we are bound by decisions of the United States Supreme Court interpreting that Constitution (People v. Bradley (1969) 1 Cal.3d 80, 86).

^[7] Even Escudero presents more of an emergency than the instant case, because there, the perpetrator actively fled the scene with someone chasing him, thus demonstrating he was prone to try to escape. Additionally, it was nighttime, which could have made it easier for him to evade apprehension had police not acted quickly to arrest him. (See Escudero, supra, 23 Cal.3d at pp. 804-806, 809-811.)

^[8] The record does not demonstrate appellant spotted any of the officers when he came out onto his porch, or that they attempted to apprehend him at that point. Moreover, even assuming appellant was aware of the officers presence, no testimony was presented to suggest he fled back into the house so as to attempt to thwart arrest or flee by another route. Cases in which an otherwise lawful arrest or detention were begun in a public place, but the suspect then retreated into a private place in an attempt to thwart the arrest, are thus distinguishable. (E.g., United States v. Santana, supra, 427 U.S. at pp. 40-43; In re Lavoyne M. (1990) 221 Cal.App.3d 154, 157-159; People v. Lloyd (1989) 216 Cal.App.3d 1425, 1427-1430; People v. Abes (1985) 174 Cal.App.3d 796, 800-802, 806-807.)