Filed 12/20/17 P. v. Cole CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant George Curtis Cole appeals from a judgment of conviction following his no contest plea to the felony offense of committing corporeal injury on a cohabitant (Pen. Code, ^[1] § 273.5, subd. (a)), and the misdemeanor offense of assault on a paramedic (§ 240). He was sentenced to an aggregate term of three years in state prison consisting of a three-year term for the felony conviction and a concurrent term of 180 days for the misdemeanor conviction. On appeal defendant challenges the trial court’s ruling on a motion to suppress evidence. (§ 1538.5.) We affirm.

FACTS[2]

On the afternoon of June 1, 2015, Clearlake Police Department officers were called to the scene of a domestic dispute at the residence of defendant and his cohabitant (hereafter the victim). Upon arrival at the residence, the officers encountered the victim outside the residence. She was upset and stated defendant “ ‘kept hitting me upside the head.’ ” The victim had numerous bruises on her that she confirmed had been inflicted by defendant. She said the beating had taken place over the past two days. The victim also said defendant had been threatening to “ ‘burn down the house,’ ” “ ‘kill my dad,’ ” and “ ‘to have the CIA kill my dad.’ ” When asked if defendant had weapons, the victim said, “ ‘I don’t know. He’s been to prison.’ ” The victim also stated defendant suffered from “PTSD” [post traumatic stress disorder], and there were knives in the residence. The victim told the officers that she owned the residence. She had lived there since 2005, and defendant had lived there since the previous June. When the officers asked permission to enter the house, the victim said, “Yeah, please do.”

The police officers knocked on the door and asked defendant to come out so they could talk to him. The officers told defendant they would come in if he did not come out. Defendant said, “ ‘Well come inside.’ ” The officers repeated defendant’s words, “ ‘Come on in? Alright.’ ” The officers then opened the door and stepped inside. As the officers stepped inside, defendant said, “ ‘You know what? Do not come in. You . . . .’ ” The officers stepped into the room and continued to talk to defendant. Defendant “appear[ed] to voluntarily speak to the officers and” did not ask them to leave again. When the officers asked defendant to stand up to determine if he had any knives or other weapons, defendant became combative and a struggle ensued. After subduing the defendant, the officers arrested him.

The trial court found that under the circumstances, the police officers’ entry into the residence to speak to defendant for the purpose of ascertaining whether violence or a threat of violence had just occurred or might soon recur was reasonable. The court explained its ruling as follows: “Generally, the police can rely on consent to enter a residence if the person had the authority to consent or the police reasonably and in good faith believed that person had the authority to consent. [Citation.] Here, there is no dispute that [the victim] had the authority to allow the police to enter her home. Instead, defendant argues that, pursuant to Georgia v. Randolph (2006) 547 U.S. 103, his telling the officers ‘Do not come in’ negated [the victim’s] consent to enter. . . . [¶] . . . In the present case, unlike in Georgia, the officers were responding to an incident of domestic violence; they were not entering to search for evidence. The officers were confronted with an upset, battered woman who said that she had been repeatedly assaulted by [defendant] over the past two days. The officers observed bruises on her body consistent with her claim. She said that [defendant] had been threatening further violence and gave consent to enter her home. . . . [T]he court in Georgia held that police may enter ‘to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur.’ In this court’s view, that is what the officers were doing in this case. The fact that the victim was standing outside of the house when contacted by the police does not indicate that she was no longer in any danger. The information the police had was that this was a lengthy relationship with on-going abuse and threats of future violence.”

DISCUSSION

Relying on Georgia v. Randolph, supra, 547 U.S. 103 (Georgia), defendant contends the trial court erroneously denied his motion to suppress all evidence resulting from the police officers’ entry into his residence because he specifically told them not to come into the house and a warrantless entry was not permissible based on the victim’s consent and exigent circumstances. The Attorney General argues to the contrary, asserting that both exigent circumstances and the victim’s consent provided sufficient grounds for the police officers’ entry over defendant’s objection, also citing to Georgia. As we now explain, we conclude the officers’ conduct was “objectively reasonable and the ‘exigent circumstances’ exception to the warrant requirement applies to justify the entry here.” (People v. Frye (1998) 18 Cal.4th 894, 990 (Frye), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. Higgins (1994) 26 Cal.App.4th 247, 251-255 (Higgins); People v. Wilkins (1993) 14 Cal.App.4th 761, 772 (Wilkins).)

“Two steps are involved in deciding whether exigent circumstances existed to justify a warrantless entry: ‘[F]irst, factual questions as to what the officer knew or believed and what action he [or she] took in response; second, a legal question whether that action was reasonable under the circumstances. [Citation.] On appeal, a reviewing court must affirm the trial court’s determinations of the factual questions if they are supported by substantial evidence, but must take the ultimate responsibility for deciding the legal question according to its independent judgment.’ ” (Higgins, supra, 26 Cal.App.4th at p. 251.) “Generally, a court will find a warrantless entry justified if the facts available to the officer at the moment of the entry would cause a person of reasonable caution to believe that the action taken was appropriate. [Citation.]” (People v. Rogers (2009) 46 Cal.4th 1136, 1157.) But, “ ‘[t]here is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers. [Citation.]’ ” (People v. Snead (1991) 1 Cal.App.4th 380, 385.)

Before the high court issued its decision in Georgia, supra, 547 U.S. 103, California courts recognized that a police officer’s warrantless entry may be justified under the exigent circumstances doctrine where “probable cause of ongoing spousal abuse at a residence warrants immediate police intervention.” (Higgins, supra, 26 Cal.App.4th at pp. 252-254.) For example, in Frye, supra, 18 Cal.4th 894, our Supreme Court found that a police officer’s warrantless entry into the defendant’s residence to arrest him for assault was permissible because it was “objectively reasonable” and was justified by the exigent circumstances doctrine under the following circumstances. (Id. at pp. 989-990.) “Here, the record indicates Belle Fourche police had not obtained a warrant prior to entering defendant’s apartment and placing him under arrest for assault. However, when the officers arrived at the Hanna Apartments in the early morning hours in response to a report of domestic violence and knocked on defendant’s door, they saw [the victim] with a bruised and swollen face and observed what appeared to be blood on the outside of the door. When one of the officers asked [the victim] who had injured her, she stepped outside the door and pointed to defendant inside the apartment. In light of the facts known to the officers at the time, they could reasonably conclude that immediate action was necessary. Had they left the scene to obtain a warrant, there was a significant risk that [the victim] would have suffered additional harm. Even if several officers had remained on the premises with [the victim] while a warrant was being secured, the likely delay could have posed a safety risk to not only [the victim] but the remaining officers as well.” (Ibid.)

The Frye court cited to Higgins, supra, 26 Cal.App.4th 247, and Wilkins, supra, 14 Cal.App.4th 761, in support of its ruling. In Wilkins, supra, 14 Cal.App.4th 761, the appellate court found the exigent circumstances doctrine justified the police officers’ warrantless entry into the defendant’s residence based on his wife’s complaint that she had been assaulted and wanted the police to enter the residence and arrest defendant and despite defendant’s objection to the entry under the following circumstances. (Id. at pp. 767-768.) “Here, the officers were summoned to the scene shortly after midnight, found the victim crying uncontrollably and learned she had been assaulted and injured by the defendant. The victim was outside the house and obviously in need of shelter. It was reasonable for the officers to conclude her reentry into the home or even her continuing presence on the premises outside the home would spark further violence by defendant. [¶] The officers could not abandon the matter and expose the victim to further harm simply because defendant refused them admittance. Furthermore, under these circumstances, the officers were not constrained to delay until an arrest warrant could be obtained. Given the time of night, the securing of a warrant would necessarily have occasioned some delay and during this period the victim would have been vulnerable to further risk of physical harm. The risk of imminent violence resulting in further physical harm to the victim was an exigent circumstance requiring immediate action. [Citations.]” (Id. at p. 772.) Similarly, in Higgins, supra, 26 Cal.App.4th 247, the appellate court found the exigent circumstances doctrine justified the police officers’ warrantless entry into the defendant’s residence based on a late night report of physical domestic violence between a man and a woman at the residence under the following circumstances. (Id. at pp. 249, 255.) “In this case, the officers were summoned to [the defendant’s] residence in response to a report of physical domestic violence. When they contacted [the victim], she was extremely frightened and appeared to have been the victim of a felony battery. Moreover, [the victim] lied about being alone and gave the officers a suspicious story about having fallen down the stairs. Viewed objectively, these circumstances justified the officers’ action to ensure [the victim’]s safety.” (Id. at p. 255.) The court also found the police officers “were not constitutionally constrained to delay their entry until an arrest warrant could be obtained . . . .[¶] . . . The officers had no right to detain [the victim] while seeking a warrant and based on her actions it is unlikely she would have agreed to stay with the officers during this time. Thus, as in Wilkins, the delay in getting a warrant would have subjected [the victim] to further risk of physical harm.” (Id. at p. 254, fn. omitted.)

In Georgia, supra, 547 U.S. 103, the high court was asked to “resolve a split of authority of whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.” (Id. at p. 108.) The circumstances of the specific case were as follows: After the defendant and his wife separated, the wife initially took custody of their child and left the marital residence. (Id. at p. 106.) Sometime later, the wife returned to the marital residence with the child. (Ibid.) “On the morning of July 6, [the wife] complained to the police that after a domestic dispute her husband took their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. . . . Shortly after the police arrived, [the defendant] returned and explained [his reason for removing the child]; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol. [¶] One of the officers, Sergeant Murray, went with [the wife] to reclaim the child, and when they returned she not only renewed her complaints about her husband’s drug use, but also volunteered that there were ‘ “items of drug evidence” ’ in the house. . . . Sergeant Murray asked [defendant] for permission to search the house, which he unequivocally refused. [¶] The sergeant turned to [the wife] for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as [the defendant’s], where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to get an evidence bag from his car and to call the district attorney’s office, which instructed him to stop the search and apply for a warrant. . . . After getting a search warrant, [the police officers] returned to the house and seized further evidence of drug use, on the basis of which [the defendant] was indicted for possession of cocaine.” (Id. at p. 107.) The Georgia court found that the case before it “invites a straightforward application of the rule that a physically present inhabitant’s express refusal to consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. [The defendant’s] refusal is clear, and nothing in the record justifies the search on grounds independent of [the wife’s] consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw . . . . Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that [defendant] would destroy evidence of drug use before any warrant could be obtained.” (547 U.S. at p. 122.)

Defendant here asserts that Georgia, supra, 547 U.S. 103, controls in this case, arguing that because the police in that case were responding to a domestic dispute, “Georgia . . . did hold that [an] officer’s responding to a domestic violence call could not enter over the objection of a suspected abuser.” We cannot agree. Although Georgia involved a police call to resolve a domestic dispute, there was no evidence that the call to the police or the situation found by the police concerned a risk of violence or that violence had occurred between the spouses. Moreover, the Georgia court expressly recognized an exception to its bright-line consent rule for situations in which “spousal abusers and other violent co-tenants . . . refuse to allow the police to enter a dwelling when their victims ask the police for help.” (547 U.S. at p. 117.) It explained the exception to its consent rule in the following manner: “But this case has no bearing on the capacity of the police to protect domestic victims. . . . No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.” (Id. at p. 118.)

We conclude this case is controlled by our case law allowing for a warrantless entry based on exigent circumstances and concerns a domestic violence situation to which the bright-line consent rule enunciated in Georgia does not apply. Given the information known to the police (defendant’s suffering from PTSD, his recent acts of physical violence against the victim and his threats of future violence, e.g. burn down the house and kill the victim’s father), a reasonable police officer evaluating the victim’s condition and statements could conclude the victim had been forced to flee the residence because of defendant’s violent conduct and she consented to the officer’s entry because she was in fear of being left alone with defendant. Additionally, because there was limited information known about defendant’s situation inside the residence as to his access to weapons, a reasonable police officer could conclude that although the victim was outside the house, “her reentry into the home or even her continuing presence on the premises outside the home would spark further violence by defendant” and immediate action was necessary and could not await a warrant. (Wilkins, supra, 14 Cal.App.4th at p. 772.) The fact that the incident took place in the afternoon would not change the dynamics impacting a reasonable police officer’s decisions. Regardless of the time of day, domestic violence calls “ ‘commonly involve dangerous situations in which the possibility for physical harm or damage escalates rapidly.’ ” (State v. Greene (1989) 162 Ariz. 431 [784 P.2d 257, 259]; see Fletcher v. Town of Clinton (1st Cir. 1999) 196 F.3d 41, 50 [in domestic disputes, “violence may be lurking and explode with little warning”].) Defendant also argues that the police officers’ warrantless entry was unreasonable because “t was the middle of a nice afternoon on a day in which court would have been in session;” and “a warrant could have been obtained before [the victim] was injured – or even inconvenienced in any meaningful way” by remaining outside of the home for a few hours on a June afternoon. However, the victim was not required to stay outside until the police secured a warrant. Nor were the police required to protect the victim outside the residence while other officers secured a warrant. As the high court has recognized, “[e]ven with modern technological advances,” the warrant procedure imposes burdens on the victim (who wanted the officers to enter the residence), the officers, and the magistrate who must review the warrant application. ([i]Fernandez v. California (2014) __ U.S. ___, ___ [134 S. Ct. 1126, 1137].) Additionally, when a warrantless entry is “justified, requiring the police to obtain a warrant may ‘unjustifiably interfer[e] with legitimate law enforcement strategies.’ ” (Ibid. quoting from Kentucky v. King (2011) 563 U.S. 452, 466.) The high court has further admonished that as a reviewing court, we “should be cautious about second-guessing a police officer’s assessment, made on the scene, of danger presented by a particular situation. With the benefit of hindsight and calm deliberation, [defendant asks us to conclude it was unreasonable for the police officers] to fear that violence was imminent. But . . . reasonableness ‘must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight’ and . . . ‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.’ [Citation.]” (Ryburn v. Huff (2012) 565 U.S. 469, 477.) “Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with” defendant, at first saying come in and then immediately saying don’t come in, a reasonable police officer could believe “that entry was necessary to avoid injury to themselves or others . . . .” (Ibid.)

Accordingly, we uphold the trial court’s denial of the motion to suppress evidence because the police officers’ warrantless entry into defendant’s residence was justified by the exigent circumstances doctrine. In light of our determination, we do not need to address defendant’s contentions that his statements to the officers were sufficient to invoke the bright-line consent rule articulated in Georgia.

DISPOSITION

The judgment is affirmed.

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Jenkins, J.

We concur:

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Pollak, Acting P. J.

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Siggins, J.

People v. George Curtis Cole, A150572