Filed 7/18/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


    THE PEOPLE,
          Plaintiff and Respondent,
                                                        A152455
    v.
    ADAN RUBIO,                                         (San Mateo County
                                                        Super. Ct. No. 16-SF-012681-A)
          Defendant and Appellant.


         Defendant Adan Rubio appeals his conviction by plea to possession of a controlled
substance with a firearm (Health & Saf. Code, § 12305), a plea entered after the trial
court denied his motion to suppress the evidence found in his apartment (Pen. Code,
§ 1538.5).1 Police had forcefully entered the apartment after responding to the scene
where 11 gunshots had just been fired and officers were concerned that a shooting victim
or suspect might be inside. We agree with the magistrate and the lower court that under
the circumstances the warrantless entry was justified under the so-called community
caretaking exception to the Fourth Amendment warrant requirement, and that the
suppression motion was properly denied. We shall therefore affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
         On October 19, 2016, at approximately 10:40 p.m., East Palo Alto Police
Department Sergeant Clint Simmont received an alert on his “ShotSpotter” application
that shots had been fired near 2400 Gonzaga Street. ShotSpotter triangulates the location
of gunfire via microphones placed throughout the city. ShotSpotter notified Sergeant
Simmont of two separate bursts of gunfire. First came five rounds from the edge of the

1
         Unless otherwise specified, all further statutory references are to the Penal Code.

                                               1
garage driveway area of 2400 Gonzaga, then one minute later came six rounds at “the
edge of the driveway, near the sidewalk.” Sergeant Simmont testified that 2400 Gonzaga
is located in “Da Vill,” known as a high-crime neighborhood. He further testified that he
had responded to more murders within a block of that location than anywhere else in East
Palo Alto.
       Sergeant Simmont and a team of four other officers arrived near the location of the
shots and parked 60 to 70 feet from the edge of the driveway. Officers Andrea Dion and
Rock Stilwell spoke with persons nearby and asked if they had heard gunfire. Two
individuals pointed towards a boat in the driveway of 2400 Gonzaga and stated that they
saw flashes coming from the other side of the boat. As the officers approached the house
with their guns out, they found a spent shell casing on the ground at the top of the
driveway near the garage. Sergeant Simmont believed the casing was a .45 caliber round
and may have come from a semiautomatic weapon.
       Approximately one minute after the officers found the spent shell casing, a man
identified as Joshua Bazan walked through the wooden gate of a fence that separated the
front and back yards of the house. Sergeant Simmont recognized Bazan from prior
contacts and testified that Bazan frequently drinks and yells at police. Sergeant Simmont
also testified that Bazan did not reside at 2400 Gonzaga. As he came through the gate,
Bazan began yelling obscenities at the officers and assumed a combative position. The
officers arrested Bazan and placed him in a patrol car.
       After Bazan’s arrest, Officer Dion located two additional spent casings behind the
open gate that Bazan had passed through. Sergeant Simmont concluded the gunfire had
come from near the gate, although he could not testify from which side. Sergeant
Simmont testified that he was “investigating whether or not we had a victim or a shooter
[who] was hiding out.”
       Sergeant Simmont pounded loudly on a door attached to the side of the garage and
announced police presence four or five times. No one responded, but Sergeant Simmont
heard what sounded like someone inside the garage pushing items against the door, and
he noticed that the door appeared to be flexing. Sergeant Simmont believed someone was


                                             2
attempting to barricade the door. As Sergeant Simmont was knocking on the door, a man
later identified as Sergio Castillo came to a window next to the garage. Sergeant
Simmont ordered Castillo to open the door. Castillo indicated that the door was not the
door to the garage, but instead was a door to a separate room.
       Sergeant Simmont, Officer Lee, and Officer Weigand spoke with several persons
at the front door to the residence. When asked whether anyone in the house had been
shot, defendant’s father, Francisco Rubio Sr., stated he did not know. Sergeant Simmont
testified that he asked Francisco Sr. for permission to search the house, which
Francisco Sr. granted. Francisco Sr. testified that the officers never asked him for
permission to enter the house.
       Once inside the house, officers asked Francisco Sr. who was inside the garage, and
he responded that his son was. Sergeant Simmont then asked for permission to search the
garage, and Francisco Sr. responded, “Sure.” Attempting to open the door from the house
to the garage, Francisco Sr. found that it was locked, but told the officers he would get
the key.
       As Francisco Sr. was getting the key, defendant emerged from the garage, opening
the door “just enough to slide his body out.” Defendant closed the door, which
automatically locked behind him, and approached the officers with his hands in his
pockets, yelling for them to shoot him. Sergeant Simmont repeatedly ordered defendant
to show his hands. Defendant eventually took his hands out of his pockets and, as he did
so, threw a key ring into the kitchen sink. Officers arrested defendant and placed him in a
patrol car.
       The officers retrieved the key defendant had thrown into the sink and attempted to
use it to open the door to the garage. When defendant’s key did not work, Sergeant
Simmont and Officer Stilwell kicked the door open and entered the garage. Sergeant
Simmont testified that he was uncertain what was on the other side of the door and that
he had no reason to believe anyone had been shot, but he “didn’t have anything to rule
that out, either.”



                                             3
       Upon entering the garage, Sergeant Simmont observed that the garage was a
converted apartment. The officers did not find anyone inside the apartment, but did
observe “an explosive device on a shelf.” The officers also found and collected an
operable .45 semiautomatic Smith & Wesson pistol on the shelf in an open closet.
Sergeant Simmont noticed that the door he had knocked on earlier from the outside was
barricaded by furniture.
       The officers cleared the house of all occupants to secure the scene. At around 5:18
a.m., a search warrant was obtained. The officers reentered the residence and executed
the warrant. The officers found an operable .357 Smith & Wesson handgun, twenty .40-
caliber bullets, 87 live .357-caliber bullets, a body armor vest, six spent .357 Smith &
Wesson shell casings, and a plastic twist-off bindle in a shot glass with a clear, rock-like
substance. Sergeant Simmont located surveillance equipment with a view of the driveway
and a video that showed three people walking down the driveway. Defendant is seen
pulling out a revolver and firing six shots into the air. Defendant and two other
individuals, Bazan and possibly defendant’s brother, are then seen running back through
the gate next to the house.
       Following the filing of a five-count felony complaint, defendant filed a motion to
suppress evidence. At a hearing on the motion to suppress, the prosecution argued that
the warrantless entry into defendant’s garage was justified under multiple theories:
community caretaking, emergency aid, exigent circumstances, and consent. Citing to
People v. Ray (1999) 21 Cal.4th 464, the magistrate ruled that the search satisfied the
community caretaking exception, but noted that it was “a very close case.” The court
denied the motion to suppress.
       The San Mateo County District Attorney then filed a six-count felony information,
charging defendant with discharge of a firearm with gross negligence (§ 246.3, subd. (a)
(count one)), possession of a controlled substance with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a) (count two)), unlawful possession of a firearm by a felon (§ 29800,
subd. (a)(1) (counts three and four)), unlawful possession of ammunition (§ 30305,
subd. (a)(1) (count five)), and possession of an explosive (Health & Saf. Code, § 12305


                                              4
(count six)), with a special allegation that defendant is ineligible for probation because of
two prior offenses (§ 1203, subd. (e)(4)).
       Defendant filed a motion to set aside the information pursuant to section 995,
alleging that the evidence presented at the preliminary hearing should have been
suppressed pursuant to section 1538.5. Defendant also renewed the original motion to
suppress evidence. Citing the emergency aid doctrine of the community caretaking
exception, the trial court denied defendant’s motion to set aside the information and
denied the motion to suppress.
       Following this second denial of his motion to suppress, defendant entered a plea of
no contest to violating Health and Safety Code section 11370.1, as charged in count two,
and admitted the special allegation pursuant to section 1203, subdivision (e)(4). The trial
court sentenced him to three years of supervised probation, subject to conditions
including nine months in the county jail or a residential substance abuse treatment
program. Defendant filed a timely notice of appeal.
                                    DISCUSSION
       “ ‘[I]t is a “basic principle of Fourth Amendment law” that searches and seizures
inside a home without a warrant are presumptively unreasonable.’ ” (People v. Romeo
(2015) 240 Cal.App.4th 931, 939, quoting Payton v. New York (1980) 445 U.S. 573, 585-
586.) “ ‘Nevertheless, because the ultimate touchstone of the Fourth Amendment is
“reasonableness,” the warrant requirement is subject to certain exceptions.’ ” (People v.
Troyer (2011) 51 Cal.4th 599, 602.) “[W]arrantless searches are allowed when the
circumstances make it reasonable, within the meaning of the Fourth Amendment, to
dispense with the warrant requirement.” (Kentucky v. King (2011) 563 U.S. 452, 462.)
“ ‘[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.’ ” (Id. at p. 466.)
       Defendant argues that the officers’ actions here were not justified by any
exception to the Fourth Amendment warrant requirement. “On appeal, a reviewing court
must affirm the trial court’s determinations of the factual questions if they are supported


                                              5
by substantial evidence, but must take the ultimate responsibility for deciding the legal
question according to its independent judgment.” (People v. Duncan (1986) 42 Cal.3d 91,
97.)
       In denying defendant’s motion to suppress, the magistrate relied on People v. Ray,
supra, 21 Cal.4th 464.2 In Ray, officers responded to a report that the door to an
apartment had been open all day, and that the inside of the home was in “shambles.” (Id.
at p. 468.) Officers arrived on the scene and concluded that there was a “ ‘95 percent’
likelihood they had encountered a burglary or similar situation.” (Ibid.) The officers
knocked several times and announced their presence, but received no response.
Concerned that they might find people inside either in need of aid or burglarizing the
home, the officers entered the home to conduct a security check.
       Six members of our Supreme Court agreed that the entry was proper but disagreed
among themselves as to precisely which exception to the warrant requirement applied.
Three justices felt that the relevant exception was “exigent circumstances,” defined “ ‘to
include “an emergency situation requiring swift action to prevent imminent danger to life
or serious damage to property . . . .” [Citation.] The action must be “prompted by the
motive of preserving life or property and [must] reasonably appear[] to the actor to be
necessary for that purpose.” ’ ” (People v. Ray, supra, 21 Cal.4th at p. 481 (conc. opn. of
George, C.J.).) The lead opinion of three other justices, viewing the emergency aid
doctrine as “a subcategory of the community caretaking exception, a distinctly different
principle of Fourth Amendment jurisprudence” (id. at p. 471 (lead opn. of Brown, J.)),
concluded that the broader community caretaker exception applied.
       According to the lead opinion, “ ‘the community caretaker exception is only
invoked when the police are not engaged in crime-solving activities.’ ” (People v. Ray,
supra, 21 Cal.4th at p. 471.) “Under the community caretaking exception, circumstances
short of a perceived emergency may justify a warrantless entry.” (Id. at p. 473.)

2
 We review the propriety of the magistrate’s decision, not that of the superior court that
affirmed the magistrate’s decision. (People v. Thompson (1990) 221 Cal.App.3d 923,
940; People v. Stamper (1980) 106 Cal.App.3d 301, 304.)

                                             6
“ ‘Community caretaking activities are varied and are performed for different reasons.’
[Citation.] Each variant must be assessed according to its own rationale on a case-by-case
basis. ‘Although the underlying command of the Fourth Amendment is always that
searches and seizures be reasonable, what is reasonable depends on the context within
which a search takes place.’ ” (Id. at p. 472.)
       Given the generality of this standard, it is hardly surprising that courts in many
cases with diverse factual situations have upheld and rejected application of the
community caretaking exception. One element common to all of these cases is that the
law enforcement officers must not have used the caretaking exception as a pretext for
other law enforcement activities. “ ‘[T]he defining characteristic of community
caretaking functions is that they are totally unrelated to the criminal investigation duties
of the police.’ ” (People v. Ray, supra, 21 Cal.4th at p. 471.) If an entry into a home is
justified by the caretaking exception, there is no bar to the seizure of contraband that is
readily observed upon entry into the home. (Id. at pp. 471-472; People v. Stamper, supra,
106 Cal.App.3d at p. 305.) In the present case, there is no suggestion that the officers
who entered defendant’s home were looking for contraband or doing anything other than
attempting to ensure that inside there was not an injured victim or someone with a
weapon who was then threatening injury to others. (Ray, supra, at p. 471.)
       While the facts in none of the cases are precisely the same, several support
application of the community caretaking exception here. In Ray itself, the officers were
aware only that a door to the residence had been open all day and that through it could be
seen that the home was in shambles, and no one responded to their repeated knocks.
Their concern justified entry to conduct a security check “ ‘to see if anyone inside might
be injured, disabled, or unable to obtain help’ and to determine whether a burglary had
been committed or was in progress.” (People v. Ray, supra, 21 Cal.4th at p. 468.) In
Stamper, which the trial court here found more persuasive, police responded to gunshots
fired within a home, heard what sounded like a shotgun being chambered, were told by
the two residents who emerged that no one else was inside, but nonetheless entered the
residence to “ ‘check for any victims due to the emergency doctrine.’ ” (People v.


                                              7
Stamper, supra, 106 Cal.App.3d at p. 304.) The Court of Appeal observed, “Guns are not
ordinarily fired, or prepared for firing, within a home unless aimed at a living target. The
officers reasonably concluded that an injured person in need of prompt attention might be
within the house. In such situations the Constitution does not require the delays of further
investigation or warrant applications.” (Id. at p. 306, italics in original.)
       Several decisions of the United States Supreme Court confirm this approach. In
Brigham City v. Stuart (2006) 547 U.S. 398, police officers responded to a loud party at a
residence where they observed through a window four adults attempting to restrain a
juvenile who broke free and struck one of the adults. The officers’ uninvited entry into
the house was deemed unjustified by the Utah Supreme Court, but the United States
Supreme Court held “the officers’ entry was plainly reasonable under the circumstances.
. . . [¶] The role of a peace officer includes preventing violence and restoring order, not
simply rendering first aid to casualties.” (Id. at p. 406.) This decision was relied on in
Michigan v. Fisher (2009) 558 U.S. 45 (per curiam), where officers entered a home
without consent or a warrant after observing signs of an altercation and a person inside
the home “screaming and throwing things,” refusing to answer the officers’ knocks, and
responding to inquiries whether he needed medical attention because of a cut on his hand
by demanding “with accompanying profanity, that the officers go to get a search
warrant.” (Id. at p. 46.) In reversing the decision of the Michigan courts finding no
emergency, the higher court held “[i]t was error for the Michigan Court of Appeals to
replace that objective inquiry into appearances with its hindsight determination that there
was in fact no emergency. It does not meet the needs of law enforcement or the demands
of public safety to require officers to walk away from a situation like the one they
encountered here.” (Id. at p. 49.) Quoting from Brigham City that “[t]he role of a peace
officer includes preventing violence and restoring order,” the court held that “[i]t sufficed
to invoke the emergency aid exception that it was reasonable to believe that Fisher hurt
himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide,
or that Fisher was about to hurt, or had already hurt, someone else.” (558 U.S. at p. 49.)



                                               8
       In Ryburn v. Huff (2012) 565 U.S. 469 (per curiam), a case applying 42 United
States Code section 1983, police officers pursuing rumors that a high school student
absent from school for two days had threatened to “shoot up” the school, sought to
interview the student at his home. (Ryburn, at p. 470.) Their knocking at the door of the
home and phone calls to the home phone initially went unanswered. When the student’s
mother was contacted on her cell phone and acknowledged that she and the student were
inside the home, and was told that the officers wished to speak with her, she “hung up the
phone.” (Id. at p. 471.) After one or two minutes, the two came to the front steps of the
home and refused the officers permission to speak with them inside the house. (Ibid.)
When asked if there were any guns in the house, the mother “responded by ‘immediately
turn[ing] around and [running] into the house’ ” and officers without permission followed
her into the house. In reversing a split decision of the Ninth Circuit Court of Appeals
holding that those officers were not entitled to qualified immunity, the court upheld the
district court’s conclusion that the mother’s “odd behavior, combined with the
information the officers gathered at the school, could have led reasonable officers to
believe ‘that there could be weapons inside the house, and that family members or the
officers themselves were in danger.’ ” (Id. at p. 472.) Referring to Brigham City and other
decisions, the court held that “[a] reasonable police officer could read these decisions to
mean that the Fourth Amendment permits an officer to enter a residence if the officer has
a reasonable basis for concluding that there is an imminent threat of violence.” (Ryburn,
at p. 474.) Rejecting the significance of the fact that when the mother fled into the house
she “was under no legal obligation to continue her conversation with the police,” the
court observed, “it should go without saying . . . that there are many circumstances in
which lawful contact may portend imminent violence.” (Id. at p. 476.) And further, “it is
a matter of common sense that a combination of events each of which is mundane when
viewed in isolation may paint an alarming picture.” (Id. at pp. 476-477.) Most
importantly, the court criticized the circuit court for “not heed[ing] the District Court’s
wise admonition that judges should be cautious about second-guessing a police officer’s
assessment, made on the scene, of the danger presented by a particular situation. With the


                                              9
benefit of hindsight and calm deliberation, the panel majority concluded that it was
unreasonable for petitioners to fear that violence was imminent. But we have instructed
that reasonableness ‘must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight’ and that ‘[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.] 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 [the mother] turning and running into the house after refusing to answer
a question about guns, petitioners’ belief that entry was necessary to avoid injury to
themselves and others was eminently reasonable.” (Id. at p. 477.)
       Although in the present case the officers were not aware of a specific, known
individual who might be in danger or might pose an imminent threat to others, as in some
of these cases, the California Supreme Court’s decisions in both Ray and Stamper
establish that if the circumstances suggest that such a person may be inside a dwelling,
police may reasonably enter to determine whether in fact such a person is present.
       Under the approach required by these authorities, the officers’ forced entry into
defendant’s garage apartment in the present case was reasonable. As the prosecutor and
the Attorney General have summarized the situation, “1) there were shots fired from
multiple locations in the driveway; 2) a verbally aggressive person exited the gate of the
residence and took a fighting stance; 3) Sergeant Simmont recognized that the person did
not live at the residence; 4) shell casings were observed outside the residence; 5) the shell
casings appeared to lead to a door going into the garage; 6) when he knocked and
announced his presence, Sergeant Simmont heard movement inside that sounded like
someone barricading the door; 7) the sounds led officers to believe someone may have
been held captive on the other side of the door; 8) [defendant] was acting erratically and
refused to show his hands; and 9) the neighborhood was known as a high crime area.”
       As the trial court put these facts together, “what the defense is asking is for this
court to second guess the actions of an officer in the field who knows that shots have


                                              10
been fired, sees physical evidence of the location where the firearm was discharged, hears
movement within the home that he seeks entry to that is consistent with a reasonable fear
that a victim of a shooting may be being secreted within the residence based on his prior
experience, further that that activity to barricade the door was upon his request to enter as
opposed to a verbal response saying, no, you can’t come in. There’s physical activity
suggesting an attempt to barricade the door. And then the appearance of Mr. Bazan . . .
and his oppositional behavior in a manner where he had no right of possession over the
premises . . . heightened the exigent moment with regard to the decision making an
officer must make in the field where firearms are being or have very recently been
discharged. Accordingly, . . . Sergeant Simmont’s actions fall within the emergency [aid]
doctrine [of the] community caretaking exception to the Fourth Amendment warrant
requirement.”
       We agree with this analysis. In our view, the community caretaker exception
applies. We add, as the Court of Appeal did in People v. Stamper, supra, 106 Cal.App.3d
at page 306: “a failure of the police to investigate as they did, ‘would have constituted a
failure to properly discharge [their] duties as [officers] of the law.’ ”
                                       DISPOSITION
       The judgment is affirmed.



                                                   _________________________
                                                   POLLAK, P. J.

I CONCUR:


_________________________
BROWN, J.




                                              11
TUCHER, J., Dissenting.
       If a man lives in a high crime neighborhood and somebody discharges a firearm
outside his home, may the police break down his door and enter his apartment when he
refuses to invite them in to investigate? The majority seems to think so, but the Fourth
Amendment answers a resounding “no”—at least not without circumstances, not present
here, that would cause a reasonable person to believe that someone in the apartment stood
in need of aid, or that some other exception to the warrant requirement applied.
       The Fourth Amendment draws a “ ‘firm line at the entrance of the house.’ ”
(People v. Bennett (1998) 17 Cal.4th 373, 386, citing Payton v. New York (1980)
445 U.S. 573, 590.) At the amendment’s “very core stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.”
(Silverman v. United States (1961) 365 U.S. 505, 511.) Thus, “[w]ith few exceptions, the
question whether a warrantless search of a home is reasonable and hence constitutional
must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31 (Kyllo).)
       The Attorney General urges two exceptions to the Fourth Amendment’s warrant
requirement as justifying the warrantless intrusion in this case, but he is wrong on both
counts. The emergency aid exception of People v. Ray (1999) 21 Cal.4th 464 (Ray) does
not apply because the police had no reasonable basis to conclude there was anybody
inside the apartment who was in danger or distress. And the exigent circumstances
exception fails independently to justify the forced entry because there was no probable
cause to believe that a shooting suspect was in the apartment.
I.     Emergency Aid Doctrine
       The emergency aid exception to the warrant requirement allows police to “enter a
home without a warrant when they have an objectively reasonable basis for believing that
an occupant is seriously injured or imminently threatened with such injury.” (Brigham
City v. Stuart (2006) 547 U.S. 398, 400 (Brigham City); accord People v. Troyer (2011)
51 Cal.4th 599, 606 (Troyer).) In determining whether an 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 light of his


                                              1
experience; in other words, he must be able to point to specific and articulable facts from
which he concluded that his action was necessary.’ ” (People v. Duncan (1986)
42 Cal.3d 91, 97–98 (Duncan); accord Terry v. Ohio (1968) 392 U.S. 1, 23.)
       Missing in this case are specific and articulable facts that would lead a reasonable
person to conclude shots fired outside defendant’s garage apartment required breaking
down the door to rescue someone inside his home. Shotspotter data and percipient
witness observations placed all of the gunfire outside the home, in or near the driveway
and the gate to the backyard. There were no bullet holes in windows or siding to suggest
that any of the shots fired outside the home had penetrated into the garage. There were
no drops of blood on the ground to suggest anybody in range of the gunshots had been
hit. Police talked to eyewitnesses but heard no reports of a scuffle, or of any other sounds
or sights suggesting anyone had been threatened or injured. When police asked Francisco
Rubio, Sr. if anyone had been shot, he responded “I don’t think so.” (Any lack of
definitiveness in this answer is easily explained by the fact that he had been asleep until
awoken by the sound of gunfire; getting out of bed to investigate, he saw nobody.)
       Other than the simple fact that shots were fired outside defendant’s home, the
Attorney General points only to the ample evidence that two people in this high-crime
neighborhood distrusted the police. First, the response to Sergeant Simmont’s pounding
on the outside door of defendant’s apartment, announcing police presence, was an evident
attempt to barricade the door from the inside. Then, a man who did not live at the house
and who had a habit of “making his dissatisfaction [with] the police known” emerged
from the backyard in a belligerent manner. Finally, defendant responded to the continued
police attempts to gain access to his apartment by coming out into the kitchen with his
hands in his pockets, daring the police in a loud voice to shoot him.
       These facts certainly justify the police in detaining defendant and Joshua Bazan in
handcuffs while they continue their investigation, but they do not support an inference
that an injured person remains in the garage. Bazan had no reported link to the home, so
his presence outside it says nothing about what is happening inside. Is Bazan a friend or
foe of the inhabitants? Is he responsible for the shots fired? At this point, the police did


                                              2
not know. They did know, or at least had strong evidence to suggest, that the only
reported occupant of the garage wanted no contact with them, and that he feared police
would break down his door and would shoot him. But defendant’s evident distrust of
police and preference to avoid interacting with them does not plausibly support an
inference that somebody else was in his apartment and suffering from a gunshot wound.
Even after they detained Bazan and defendant, the police learned nothing to substantiate
their original suspicion that an injured person might be in the garage. And with nothing
more than an “unparticularized suspicion[]” that emergency aid might be necessary, the
police may not breach the firm line the Fourth Amendment draws at the entrance to
defendant’s home. (Duncan, supra, 42 Cal.3d at pp. 97–98.) They cannot break down
his door simply because Sergeant Simmont “didn’t have anything to rule . . . out” the
possibility that someone inside had been shot.
       Unlike the majority, I find no authority in Ray, supra, 21 Cal.4th 464, for the
forced entry into defendant’s apartment. In fact, a majority of justices in Ray conclude
that the emergency aid doctrine did not even justify the warrantless entry into an empty
apartment in that case. The first portion of the lead opinion “agree[s] with defendant that
the People did not meet their burden of establishing circumstances warranting the
officers’ actions under the emergency aid component of community caretaking.” (Id. at
p. 472 (lead opn.).) Three justices conclude in the lead opinion that, although “[t]he
officers were concerned for 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.” (Id. at p. 473 (lead opn.).)
Joining them on this point was Justice Mosk, whose dissent found no justification for the
warrantless search in Ray at all. (Id. at p. 482 (dis. opn. of Mosk, J.).) Thus, to the extent
our case is analogous—and on this point I think it is—Ray precludes us from applying
the emergency aid doctrine here. As in Ray, so in this case, officers may have been
“concerned for the possibility of an injured person” (id. at 473 (lead opn.)), but without
specific and articulable facts to support an inference that an injured person might be
inside the apartment, the emergency aid exception does not authorize warrantless entry.


                                              3
       After rejecting the emergency aid doctrine as grounds for police entry into the
apparently burglarized apartment in Ray, the lead opinion goes on to endorse warrantless
entry on a different theory. The opinion accepts the prosecution’s argument that there is
a non-emergency variant of the community caretaking exception, and that this broader
conception of community caretaking excuses the police from having obtained a warrant.
(Ray, supra, 21 Cal.4th at p. 473 (lead opn.).) “[C]ircumstances short of a perceived
emergency may justify a warrantless entry,” such as “ ‘where the police reasonably
believe that the premises have recently been or are being burglarized,’ ” the three justices
conclude. (Ibid.) On this second holding, Justice Mosk parts company with the lead
opinion, rejecting the idea “that the warrantless search of a residence, under nonexigent
circumstances, can be justified on the paternalistic premise that ‘We’re from the
government and we’re here to help you.’ ” (Id. at p. 482 (dis. opn. of Mosk, J.).)
       Not only does the Ray lead opinion’s second theory fail to command a majority, it
has no application to the facts of defendant’s case. Here, nobody argues that
circumstances short of an emergency required police attention. Sergeant Simmont was
not, for example, trying to protect defendant’s property from potential burglars.
Moreover, the lead opinion in Ray teaches that the community caretaking exception only
justifies intrusions for purposes other than emergency aid if the police are not
investigating a crime. “Any intention of engaging in crime-solving activities will defeat
the community caretaking exception even in cases of mixed motives.” (Ray, supra,
21 Cal.4th at p. 477 (lead opn.).) To the extent the majority finds no evidence in this case
that the police went into defendant’s garage to investigate a crime, I disagree with its
reading of the record. Sergeant Simmont explained that he kicked in defendant’s door
because he “didn’t know what was on the other side” but thought there was “either an
armed subject or a victim of gunfire” in the garage. He and his colleagues were
investigating a shooting that had just occurred and were looking for potential perpetrators
and victims of such a crime. Thus, Ray’s non-emergency variant of community
caretaking cannot justify this warrantless entry.



                                             4
       In sum, the warrantless intrusion into defendant’s home finds no authority in
Ray—neither Ray’s application of the traditional emergency aid doctrine nor its new,
non-emergency variant of community caretaking. The majority suggests otherwise by
quoting language from Ray’s lead opinion, that the police’s “concern justified entry ‘to
conduct a security check “to see if anyone inside might be injured, disabled, or unable to
obtain help” and to determine whether a burglary had been committed or was in
progress.’ ” (Maj. opn., ante, at pp. 7–8.) But the quoted language is the subjective
explanation the police gave for their conduct. (See Ray, supra, 21 Cal.4th at p. 468 (lead
opn.).) As an ostensible conclusion of law, it is one the lead opinion expressly rejects. In
Ray, as in this case, “the People did not meet their burden of establishing circumstances
warranting the officers’ actions under the emergency aid component of community
caretaking” because, although “[t]he officers were concerned for 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.” (Id. at pp. 472–473, italics added (lead opn.).)
       Other California cases applying the emergency aid doctrine are no more helpful to
the Attorney General. In People v. Stamper (1980) 106 Cal.App.3d 301 (Stamper),
police responded to a report that two gunshots had been fired within a residence. When
they approached and knocked on the door, an officer “ ‘heard from within the residence
what sounded to be like a shotgun being chambered.’ ” (Id. at p. 304.) Not surprisingly,
the court upheld warrantless entry in that case. (Id. at p. 306.) Unlike in our case, where
the police break into defendant’s apartment without any evidence of a firearm, gunshots,
or an injured person within, in Stamper the police had evidence that shots had just been
fired inside the home, and that somebody inside was again preparing to use a firearm
even as the police stood by outside.
       Similarly, in Tamborino v. Superior Court (1986) 41 Cal.3d 919 (Tamborino), the
police responded to a report of a robbery at an address where a victim “was believed to
be injured and bleeding.” (Id. at pp. 921–922.) Officers responding to the scene
observed blood outside the defendant’s apartment building and outside his apartment


                                              5
door. Also, a witness “confirmed that an injured person was inside the apartment.” (Id.
at p. 922.) Unsurprisingly, the court held that these facts gave officers sufficient reason
to enter in search of injured persons. But our case, with no sign of blood and no
witnesses reporting injury, is clearly distinguishable. (See also Troyer, supra,
51 Cal.4th at p. 610 [emergency aid justifies intrusion where “police arrived minutes
after a reported shooting to find one victim with gunshot wounds, another bleeding
heavily from a head wound, blood on the door indicating an injured victim had entered or
exited the residence, a report of a male shooting victim who may still have been
unaccounted for, and evasive or unreliable responses from [one victim] as to whether
anyone inside needed assistance”].)
       The Attorney General also relies on two federal cases that are distinguishable in
that both involve police who see evidence that a person in the home has been injured and
that violence is ongoing in the home. In Brigham City, supra, 547 U.S. 398, the officers
see and hear a fight taking place inside a house, and then watch through a window as one
victim takes a punch to the face, spitting blood. (Id. at p. 406.) In Michigan v. Fisher
(2009) 558 U.S. 45, officers investigating a report of a man “ ‘going crazy’ ” find, in the
driveway, blood in and on a pickup truck whose front has been smashed, and more blood
on the door to the house. (Id. at p. 45.) Through a window they see a man “inside the
house, screaming and throwing things,” perhaps at “a spouse or a child.” (Id. at pp. 46,
48.) That the emergency aid exception justified warrantless entry in these two cases
means nothing for our case, where the police forced entry into defendant’s home without
any evidence that there was an injured person in the apartment, and without evidence that
violence was occurring, or had occurred, inside the home.
       More analogous is a case from a sister state whose supreme court refused to apply
the emergency aid doctrine even where there was evidence linking gunfire to a room the
police entered. In People v. Davis (1993) 442 Mich. 1 [497 N.W.2d 910], police dispatch
alerted officers that a motel desk clerk had called in “Room 33 or 34 . . . shots fired.” (Id.
at p. 911.) Officers reporting to the scene noticed nothing unusual and chose not to speak
with the desk clerk or motel manager, “but instead went directly to the rooms,” knocking


                                              6
and announcing police presence at the first door they reached. (Ibid.) Although the
defendant peeked out the window, she did not open the door to her hotel room for three to
five minutes. When she did, the police entered the room without a warrant, found
contraband, and arrested her. (Id. at pp. 911–912.) The Michigan Supreme Court, after
carefully analyzing the legal issues, noted the police had no corroboration for the sketchy
information they had received from dispatch, and no suggestion “that any person was
injured, other than by implication because of the inherently dangerous nature of
gunshots.” (Id. at p. 921.) On these facts, the court rejected application of the emergency
aid doctrine, concluding that “the constitution prohibits [police] from forcing entry into a
dwelling on the basis of a speculation that someone inside may have been injured.” (Id.
at p. 922.) (See also United States v. Timmann (11th Cir. 2013) 741 F.3d 1170
[emergency aid doctrine does not justify police entry into an apartment from which a
bullet had earlier pierced neighboring apartment’s wall].) The emergency aid doctrine is
even less appropriate in defendant’s case, where there was never evidence of gunfire
within (or emitting from) his home.
       The majority cites one case that involves police entry into a home without signs of
blood or reports of violence within the home. But Ryburn v. Huff (2012) 565 U.S. 469
(Ryburn) is not a case in which the court had occasion to decide whether the unwarranted
intrusion met Fourth Amendment standards. Rather, it is one in a series of cases in which
the United States Supreme Court granted certiorari and simultaneously reversed the
Ninth Circuit in per curiam opinions because the Ninth Circuit had failed to appreciate
that police officers were entitled to qualified immunity in civil cases for damages. (Id. at
pp. 472, 477; Brosseau v. Haugen (2004) 543 U.S. 194, 201; Stanton v. Sims (2013)
571 U.S. 3, 10–11; Kisela v. Hughes (2018) __ U.S. __ [138 S.Ct. 1148, 1154–1155, 200
L.Ed.2d 449, 456].) This, after the United States Supreme Court had repeatedly
emphasized to the Ninth Circuit the importance of the distinction between qualified
immunity and a decision on the merits of a constitutional claim. (See, e.g., Saucier v.
Katz (2001) 533 U.S. 194, 203; Safford Unified School Dist. No. 1 v. Redding (2009)
557 U.S. 364, 378–379; Camreta v. Greene (2011) 563 U.S. 692, 705–707.) That is,


                                             7
officials are entitled to qualified immunity unless they have “violated a ‘clearly
established’ right,” which means that in an appropriate case a court can enter a defense
judgment on qualified immunity grounds “without ever ruling on the (perhaps difficult)
constitutional claim the plaintiff has raised.” (Id. at p 705.) Consistent with this
distinction, the Court in Ryburn held that “reasonable police officers in petitioners’
position could have come to the conclusion that the Fourth Amendment permitted them
to enter the Huff residence” (Rayburn, at p. 477, italics added), not that the Fourth
Amendment did in fact permit the officers’ entry.
       Questions of qualified immunity aside, Ryburn is also factually distinguishable. In
Ryburn, the police entered through an open door, behind a woman whose son had
credibly threatened to “ ‘shoot up’ ” his school, and after the woman ran into the house
upon being asked whether there were guns inside. (Ryburn, supra, 565 U.S. at pp. 470–
471.) Officer safety was a major motivation for the officers’ behavior and for the Court’s
conclusion they were entitled to qualified immunity. (Id. at pp. 473–474.) And to the
extent the officers were concerned with the safety of family members in the home, they
were acting on evidence that linked a person in the home to both criminal threats and
available firearms. In defendant’s case, the police did not invoke officer safety to justify
kicking down defendant’s door, and they had no evidence tracing criminal threats or
firearms to anyone in defendant’s apartment, as the only crime they were investigating
occurred outside the home and had not been linked to any suspect before the police
forced entry.
       Although the police had no evidence linking anyone inside defendant’s apartment
to the reports of shooting outside it, they did have evidence that someone in the garage
sought to deny them entry. But defendant, as much as any American, has “the right . . .
to retreat into his own home and there be free from unreasonable governmental
intrusion.” (Silverman, supra, 365 U.S. at p. 511.) He should not need a barricade to
fortify that right, and in any event furniture pushed against the door is no match for a
determined police officer. The hostility that defendant (and Bazan) exhibited toward the
police I do not condone. But nor can I ignore that “ ‘as a practical matter neither society


                                              8
nor our enforcement of the laws is yet color-blind,’ ” and the resulting “uneven policing
may reasonably affect the reaction of certain individuals—including those who are
innocent—to law enforcement.” (United States v. Brown (9th Cir. 2019) 925 F.3d. 1150,
1156) That defendant lived in a high crime neighborhood, that a shooting had just
occurred outside his home, and that he chose initially to exercise his constitutional right
to be left alone in his own apartment do not entitle the police to break down his door.
The emergency aid doctrine does not justify the warrantless intrusion into his home.
II.    Exigent Circumstances
       The Attorney General also argues that the police action in this case comes within
the exigent circumstances exception to the warrant requirement. Because warrantless
entry into a home is presumptively unreasonable, the government bears the burden of
establishing exigent circumstances (Troyer, supra, 51 Cal.4th at p. 606), and we find
none that justify forced entry here. Our Supreme Court has defined exigent
circumstances as “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.” (People v. Ramey (1976) 16 Cal.3d 263, 276.)
       The Attorney General argues exigent circumstances based, in part, on the officers’
reasonable belief that an injured person in the garage needed immediate aid. This is a
reframing, under a different label, of the emergency aid argument. (See, e.g., Tamborino,
supra, 41 Cal.3d at p. 925 [exigent circumstances excuse warrantless intrusion into an
apartment where police reasonably believe robbery victims might be present].) The
argument should be rejected here for the same reason.
       But the Attorney General also argues exigent circumstances in that an armed
shooter might be in the garage apartment even after defendant has left it. Sergeant
Simmont could reasonably conclude “there was a possibility a firefight . . . had
occurred,” and that shooters “may be inside the residence,” the Attorney General asserts.
(Italics added.) Police may have harbored a “suspicion that activities intended to be
hidden were continuing in the home,” as the Attorney General alleges, but none of this



                                              9
conjecture rises to the level of probable cause to believe that a shooting suspect was in
the garage, and the Attorney General does not argue otherwise.
       This shortfall is fatal, for “to fall within the exigent circumstances exception to the
warrant requirement, an arrest or detention within a home or dwelling must be supported
by both probable cause and the existence of exigent circumstances.” (People v. Lujano
(2014) 229 Cal.App.4th 175, 183; see also People v. Thompson (2006) 38 Cal.4th 811,
818 (Thompson) [“entry into a home based on exigent circumstances requires probable
cause to believe that the entry is justified by . . . factors such as the imminent destruction
of evidence or the need to prevent a suspect’s escape”]; People v. Bacigalupo (1991)
1 Cal.4th 103, 122; [factors that determine “whether exigent circumstances support the
decision to make” a warrantless arrest in a residence include “whether probable cause is
clear” and “whether the suspect is likely to be found on the premises entered”].)
       Here, the totality of the circumstances fails to establish that when the police
entered defendant’s apartment they had probable cause to believe a shooter would be
found there. Although ample evidence established that a shooting had occurred outside
the apartment, no witnesses or other evidence placed a gunman inside the residence at
any time before the police broke down defendant’s door. Indeed, no evidence placed
anyone but defendant in the garage at any point that evening, so that once defendant had
come into the kitchen, police had no reason to believe anybody—shooter or otherwise—
remained in the garage. With Bazan and defendant in handcuffs, the very idea that a
shooter remained at large was speculative. This case is therefore clearly distinguishable
from Stamper, the primary case on which the Attorney General relies. In Stamper, police
received a report of gunshots within the residence and then heard with their own ears the
sound of a shotgun being chambered inside the residence. (Stamper, supra,
106 Cal.App.3d at p. 304.) By contrast here, no sounds at all came from the garage
apartment after defendant came out and was detained in the kitchen.
       In sum, lacking probable cause to believe a shooting suspect would be found in
defendant’s apartment, the police could not rely on exigent circumstances to justify
breaking down his door and entering his home to look for a shooter.


                                              10
                            *      *      *        *        *
       The majority cites Ryburn for the proposition that “judges should be cautious
about second-guessing a police officer’s assessment, made on the scene, of the danger
presented by a particular situation.” (Maj. opn., ante, at p. 10, citing Ryburn, supra,
565 U.S. at pp. 476–477].) But courts do police officers no favors when we abdicate our
responsibility to exercise “independent judgment” on the lawfulness of a search.
(Duncan, supra, 42 Cal.3d at p. 97.)
       At stake are bedrock principles of constitutional law. First, “ ‘the “physical entry
of the home is the chief evil against which the wording of the Fourth Amendment is
directed.” ’ ” (Thompson, supra, 38 Cal.4th at p. 817.) Second, entry requires a warrant
unless the evidence establishes “ ‘one of the few “specifically established and well-
delineated exceptions” to the warrant requirement.’ ” (Id. at p. 818.) If today we stretch
the emergency aid doctrine to allow intrusion into the home based on only an
unparticularized suspicion that an injured person may be inside, or if we dispense with
the requirement of probable cause when police are searching for a felon in exigent
circumstances, then these exceptions become no longer “ ‘ “few in number and carefully
delineated.” ’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 233.) Justice Scalia would
have the Fourth Amendment’s “ ‘firm line at the entrance to the house,’ . . . be not only
firm but also bright.” (Kyllo, supra, 533 U.S. at p. 40.)
       Because I believe today’s decision obscures that line, I respectfully DISSENT.



                                                   _________________________
                                                   TUCHER, J.




                                              11
Trial court:                San Mateo County Superior Court

Trial judge:                Honorable Steven L. Dylina and Donald J. Ayoob

Counsel for defendant and   Gordon S. Brownell, under appointment by the Court of
appellant:                  Appeal

Counsel for plaintiff and   Xavier Becerra, Attorney General
respondent:                 Gerald A. Engler, Chief Assistant Attorney General
                            Jeffrey M. Laurence, Senior Assistant Attorney General
                            Catherine A. Rivlin, Supervising Deputy Attorney General
                            Bruce M. Slavin, Deputy Attorney General




A152455


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