Filed 1/17/18
                CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                SECOND APPELLATE DISTRICT
                          DIVISION SIX


THE PEOPLE,                                  2d Crim. No. B277860
                                            (Super. Ct. No. 1476460)
     Plaintiff and Respondent,              (Santa Barbara County)
v.
WILLIE OVIEDA,
      Defendant and Appellant.


            Over 50 years ago, wise and prescient Chief Justice
Phil Gibson planted the judicial seed for what we now call the
“community caretaking” exception to the Fourth Amendment.
We apply it here. (People v. Roberts (1956) 47 Cal.2d 374, 379-
380 (Roberts); see also People v. Ray (1999) 21 Cal.4th 464, 471
(Ray).)
            Willie Ovieda appeals his conviction by plea to
manufacturing concentrated cannabis (Health & Saf. Code,
§ 11379.6, subd. (a)) and possession of an assault weapon (Pen.
Code, § 30605, subd. (a)), entered after the trial court denied his
motion to suppress evidence (Pen. Code, § 1538.5). Pursuant to a
negotiated plea, probation was granted with 180 days county jail
and outpatient mental health treatment.
            Appellant contends his Fourth Amendment rights
were violated when officers, in responding to a 911 call that he
was about to shoot himself, made a “cursory search” of appellant’s
residence to make sure no one was hurt and no firearms were
lying about.1 The trial court factually found that the search was
a reasonable exercise of the officers’ community caretaking duty.
We affirm because there is no reason to apply to the exclusionary
rule. As we shall explain, the instant entry and “cursory search”
had nothing to do with the gathering of evidence to support a
criminal prosecution. This is, of course, the lynchpin for
application of the exclusionary rule. When a person
unsuccessfully attempts suicide in his residence with a firearm,
and thereafter comes outside, the police may enter the residence
to perform a “cursory search” pursuant to their “community
caretaking” duty.
                   Facts and Procedural History
             On the evening of June 17, 2015, appellant’s sister
told a 911 operator that appellant was threatening to kill himself
and had attempted suicide before. Santa Barbara Police Officer
Mark Corbett responded to the 911 call. A second officer
telephoned Trevor Case inside the house. Case was appellant’s
friend. Case went outside and reported that appellant had
threatened to commit suicide and tried to grab several firearms
in his bedroom. Case and his wife had to physically restrain
appellant to keep him from using a handgun and a rifle to kill
himself. Case’s wife pinned appellant down as Case searched the
bedroom for other firearms. Case moved a handgun, two rifles,
and ammunition to the garage but did not know whether
appellant had additional firearms or weapons in the house.
             Appellant agreed to come outside, was detained, and
falsely denied having made suicidal comments or that he had any

      This phrase, “cursory search,” is coined by Chief Justice
      1

Gibson. (See infra, p. 8.)



                                2
firearms. Appellant said he was depressed because a friend
committed suicide the week before. Officer Corbett described the
situation as “emotional and dynamic.” He believed a cursory
search was necessary because it was unknown how many more
weapons were in the house, whether the weapons were secure,
and whether anyone inside the house needed help. It was a
concern because the person who made the 911 call, appellant’s
sister, was not at the scene and the officers did not know
anything for sure. Officer Corbett believed he was “duty bound”
to make a safety sweep to make sure no one inside was injured or
needed medical attention. A second officer, Officer Daniel Garcia,
agreed a safety sweep was necessary to confirm that; 1. there
were no other people in the house; 2. nobody else was hurt; and 3.
there were no dangerous weapons or firearms left out in the open.
             Officer Corbett and a second officer made a cursory
sweep of the house and saw, in plain view, a rifle case,
ammunition, magazines, and equipment to cultivate and produce
concentrated cannabis.
             There was a large, industrial drying oven with tubes,
wires, and ventilation ducts that led to the garage, as well as
marijuana and concentrated cannabis in plain view. Based on 15
years in narcotics-related investigations, Officer Corbett believed
the marijuana lab posed an immediate danger because
manufacturing concentrated cannabis is “a volatile process that
involves heat and when mistakes are made explosions and fires
can occur.”
             Inside the garage, officers saw three rifles and a
revolver in a tub. Two rifles were automatic or semi-automatic
assault rifles that Officer Corbett believed were illegal. The
officers also found four high capacity magazines for an assault




                                3
style weapon, a firearm silencer, a long range rifle with a scope,
more than 100 rounds of ammunition, equipment for a hash oil
laboratory, butane canisters, miscellaneous lighters and burners,
a marijuana grow, and a bucket filled with marijuana shake.
The firearms included a .50 caliber rifle, an Uzi sub-machine gun,
a .357 caliber revolver, a pistol-grip 12 gauge shotgun, and a .223
caliber sub-machine gun.
             Appellant brought a motion to suppress evidence.
The prosecution argued that the entry into appellant’s residence
was justified under the community caretaking exception and the
protective sweep doctrine.2 The trial court ruled that the
community caretaking exception is “what guides the Court’s
decision” and denied the motion to suppress evidence. The trial
court found the officers’ testimony credible as to “what they were
concerned about and what they didn’t know. And so I [find] it
credible that they wanted to remove firearms, they didn’t know if
there were others in the residence, either victims or other people
who might cause a harm.” It expressly found that the officers
were “not required to accept Mr. Case’s word that he removed the
firearm that Mr. Ovieda had reached for. . . . And I believe under
these circumstances that the officers would be subject to
criticism, in fact, if anything had occurred that they would be
judged neglectful in not entering the residence and doing what
was described as quick search, . . . looking in closets, looking for
other people, and looking for other weapons.”

      2
       On appeal, the Attorney General concedes that the
protective sweep doctrine, which is typically made in conjunction
with an in-home arrest, does not apply. (See Maryland v. Buie
(1990) 494 U.S. 325, 337.) The Attorney General also conceded at
oral argument that under the circumstances here, a search
warrant could not issue.



                                 4
                  Community Caretaking Exception
             Appellant argues that the entry into his residence
violated the Fourth Amendment. On review, we defer to the trial
court’s express and implied factual findings which are supported
by substantial evidence and determine whether, on the facts so
found, the search was reasonable under the Fourth Amendment.
(E.g., People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial
court’s express factual findings are fatal to this appeal.
             In Ray, supra, 21 Cal.4th 464, our Supreme Court
stated that the community caretaking exception to the Fourth
Amendment permits police to make a warrantless search of a
home if the search is unrelated to the criminal investigation
duties of the police. (Id. at p. 471.) “Upon entering a dwelling,
officers view the occupant as a potential victim, not as a potential
suspect.” (Ibid.) “Under the community caretaking exception,
circumstances short of a perceived emergency may justify a
warrantless entry” to preserve life or protect property. (Id. at
p. 473.) Officers are expected to “‘“aid individuals who are in
danger of physical harm,” “assist those who cannot care for
themselves,” “resolve conflict,” . . . and “provide other services on
an emergency basis.” . . .’ [Citation.]” (Id. at p. 471.)
             Such is the case here. Officer Corbett responded to
the 911 call to help a suicidal person. The cursory search had
nothing to do with a criminal investigation and no one claims the
911 call was a ruse or subterfuge to gain entry and search for
evidence of a crime. “‘[C]ommunity caretaking’ . . . , [is] ‘totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.’
[Citation.]” (Colorado v. Bertine (1987) 479 U.S. 367, 381.)




                                  5
              Appellant argues that Ray has no binding
precedential value because it is only a plurality opinion. (See,
e.g., People v. Karis (1988) 46 Cal.3d 612, 632.) He contends the
officers were required to leave when appellant denied that he was
suicidal. The argument is premised upon the theory that a
suicidal person has the Second Amendment right to possess and
bear firearms and that officers responding to a 911 call that
someone is threatening suicide must leave when the person
comes outside and says there is no problem. We assess the
reasonableness of the officer’s actions at the time they undertook
them.
              Officer Corbett responded to a 911 call from a
concerned family member that appellant was about to take his
life and had attempted suicide before. Appellant’s friend, Trevor
Case, confirmed that appellant tried to reach for a firearm and
shoot himself. Case feared that appellant would try to hurt
himself and that there were other weapons or firearms in the
house. There was an on-going safety concern because appellant
lied about the firearms and his suicidal ideation. Appellant was
detained and handcuffed. By his actions, appellant put himself
at risk, his friends at risk, and the responding officers at risk.
(Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 271 [Police
officers providing assistance at the scene of a threatened suicide
must concern themselves with more than simply the safety of the
suicidal person. Protection of the physical safety of the police
officers and other third parties is paramount]; see also Allen v.
Toten (1985) 172 Cal.App.3d 1079, 1089, fn. 8.)
              As discussed in Ray, “‘[o]ne is privileged to enter or
remain on land in the possession of another if it is or reasonably
appears to be necessary to prevent serious harm to . . . the other




                                 6
or a third person, or the land or chattels of either . . . .’
[Citations.]” (Ray, supra, 21 Cal.4th at p. 474.) It matters not
whether a police officer, a fireman, an ambulance driver, or a
social worker responds to the suicide call. As a matter of common
sense, it would be anomalous to deny a police officer charged with
protecting the citizenry the privilege accorded every other
individual who intercedes to aid another or protect another’s
property. (Ibid.) “‘A warrantless entry of a dwelling is
constitutionally permissible where the officers’ conduct is
prompted by the motive of preserving life and reasonably appears
to be necessary for that purpose. [Citations.]’” (Ibid.)
             Pursuant to the community caretaking exception,
police officers are expected to check on the welfare of people who
cannot care for themselves or need emergency services. (Ray,
supra, 21 Cal.4th at pp. 471-472.) “The policeman, as a jack-of-
all-emergencies, has ‘complex and multiple tasks to perform in
addition to identifying and apprehending persons committing
serious criminal offences’; by default or design he is also expected
to ‘aid individuals who are in danger of physical harm,’ ‘assist
those who cannot care for themselves,’ and ‘provide other services
on an emergency basis.’ If a reasonable and good faith search is
made of a person for such a purpose, then the better view is that
evidence of crime discovered thereby is admissible in court.” (3
LaFave, Search and Seizure (5th ed. 2012) § 5.4(c), pp. 263-264,
fns. omitted.)
             Appellant contends that the community caretaking
rule does not apply to residential searches. Surely a police officer
may enter a residence to protect a suicidal person and secure the
premises if firearms are believed to be present. (See, e.g.,
Brigham City v. Utah (2006) 547 U.S. 398, 400, 403 [officer may




                                 7
enter home without a warrant to render emergency assistance to
an injured occupant or to protect occupant from imminent
injury].) The officers had a duty to prevent the possibility that
the firearms “would fall into untrained or . . . malicious hands.”
(Cady v. Dombrowski (1973) 413 U.S. 433, 443.)
              When it comes to choosing between the Fourth
Amendment protection against warrantless searches and the
preservation of life, the preservation of life controls. That was
decided more than 50 years ago in Roberts, supra, 47 Cal.2d 374.
There, officers were told that a suspect living in an apartment
had missed work and was sickly. (Id. at p. 378.) After knocking
on the door and receiving no response, the officers heard moans
and groans that sounded like a person in distress. (Ibid.) The
officers believed someone needed emergency assistance, made a
warrantless entry, and saw a stolen radio on the kitchen table
that resulted in defendant’s arrest for second degree burglary.
Defendant argued that his Fourth Amendment rights were
violated. The officers, however, believed a person in distress was
inside the apartment and needed help. (Id. at pp. 378-379.)
When asked about the moaning sounds, the officers said “‘it could
be pigeons, pigeons moan. There are pigeons in the area.”’ (Id. at
p. 378.)
                Chief Justice Gibson wrote: “Necessity often
justifies an action which would otherwise constitute a trespass,
as where the act is prompted by the motive of preserving life or
property and reasonably appears to the actor to be necessary for
that purpose. [Citations.]” (Roberts, supra, 47 Cal.2d at p. 377.)
In the course of conducting a cursory search, officers do “not have
to blind themselves to what was in plain sight simply because it




                                 8
was disconnected with the purpose for which they entered.
[Citations.]” (Id. at p. 379.)
             Similarly, in People v. Payne (1977) 65 Cal.App.3d
679, a reliable informant reported that appellant was molesting
children in a garage bedroom. (Id. at p. 681.) Officers saw a 10
to 12 year old boy enter the garage, were concerned that
appellant would harm the boy, forced their way into the garage
bedroom, and found a partially dressed boy on a bed in the
garage. (Id. at p. 682.) Citing Roberts, the Court of Appeal held
that the victim’s “‘right to physical and mental integrity [simply]
[outweighed] the right of [appellant] to remain secure in his
domestic sanctuary . . . .’ [Citation.]” (Id. at p. 684.)
             The rules and rationale of Ray, Roberts and Payne
dictate affirmance here. There, the officers were conducting
criminal investigations. Here, they were not. This entry was a
pure community caretaking entry and a fortiori, the community
caretaking rule applies with more persuasive force.
             The community caretaking rule is alive and well. So
is appellant because he was saved by the intervention of friends
and the police who confiscated his firearms. Principles of stare
decisis require that we follow Ray and Roberts. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To say
that the officers were required to get a warrant before entering
the house and garage would be at variance with common sense
and violative of the letter and spirit the “community caretaking”
rule. “There is no war between the Constitution and common
sense.” (Mapp v. Ohio (1961) 367 U.S. 643, 657.)
                          Response to Dissent
             The dissent’s bright line rule unreasonably stifles a
police officer’s duty to proactively keep the peace for everyone in




                                 9
the community. The presenting situation posed an extreme
danger for appellant, his friends, the police, and the neighbors. A
literal and mechanical application of the letter of the Fourth
Amendment would require the officers to walk away from
appellant’s doorstep. But the courts must consider the reason for
the exclusionary rule. Traditionally, the premise of the
exclusionary rule is that it applies only if the police are enforcing
the criminal law, i.e., they are entering a residence to search for
evidence of crime. That did not happen here.
              Here, the officers did not fully comprehend what was
confronting them when they entered appellant’s residence. Police
officers have a healthy skepticism about what they are told in a
volatile situation preferring to conduct their own investigation.
Here, they wanted to safeguard everyone and they wanted to
separate appellant from his firearms. As factually found by the
trial court, they were not required to believe that there was no
one in the house and that the firearms were secured. Should
they be allowed to enter a residence and defuse a “powder keg”
waiting to explode when appellant would return to his residence?
The answer is “yes.” Loaded firearms are inherently dangerous
as a matter of law and even though it is constitutionally
permissible to possess them in a residence, it is quite another
thing to allow them to remain in the possession of a suicidal
person. Our holding does not give the police carte blanche to
indiscriminately enter a residence on whim or caprice. Where, as
here, a defendant threatens to kill himself with a firearm in his
house, he is in a poor posture to claim that the police may not
enter it to safeguard everyone even if he is coaxed out of the
house prior to entry.




                                 10
             The dissent acknowledges that “had” the officers
believed appellant was a danger to himself, they could have
confiscated his firearms. (Dissent at p. 6) The record does not
expressly show that the officers believed this to be the case
because no one asked the question. But the inference that they
entertained this belief is a reasonable inference. Suicidal persons
are a danger to themselves. Every peace officer knows this. The
only reason that appellant was not taken to a mental health
facility was because, thereafter, probable cause developed for his
arrest.
             As Justice Gilbert said in his dissent in Unzueta v
Ocean View School Dist. (l992) 6 Cal.App.4th 1689, 1705: “A
mechanical, literal interpretation of the statute [or here, the
Fourth Amendment] in the lifeless atmosphere of a vacuum
creates a result contrary to public policy, contrary to legislative
intent [or Constitutional intent], contrary to common sense, and
contrary to our shared notions of justice.” We agree with the trial
court that the officers would have been subject to criticism if they
had not separated appellant from his firearms.
                              Disposition
             The judgment (order denying motion to suppress) is
affirmed.
             CERTIFIED FOR PUBLICATION.



                                                 YEGAN, J.
I concur:



            GILBERT, P. J.




                                11
PERREN, J., Dissenting.
             I respectfully dissent.
             Chief Justice Gibson’s “judicial seed” will not blossom
in this fallow field.
             Freedom from unreasonable government intrusion is
at the core of the Fourth Amendment, which “draws ‘a firm line
at the entrance to the house.’” (Kyllo v. United States (2001) 533
U.S. 27, 31, 40.) “‘[P]hysical entry of the home is the chief evil
against which . . . the Fourth Amendment is directed.’ [Citation.]
And a principal protection against unnecessary intrusions into
private dwellings is the warrant requirement imposed by the
Fourth Amendment.” (Welsh v. Wisconsin (1984) 466 U.S. 740,
748.) “[S]earches and seizures inside a home without a warrant
are presumptively unreasonable.” (Payton v. New York (1980)
445 U.S. 573, 586.)
             Relying on a “community caretaking” theory, the
majority approves a warrantless intrusion into a home based
solely upon police speculation about what they “could” find inside.
The officers admittedly had no information that anyone, child or
adult, was inside the house and required help. Indeed, everyone
reported to be in the house was outside and completely under the
officers’ control, including the person they came to rescue,
appellant Ovieda. The officers did not believe that appellant was
a danger to himself or others. Because the officers had no
objectively reasonable belief that searching the home was
imperative, I conclude that the trial court should have granted
appellant’s motion to suppress evidence seized during the search.
             The facts of this case are undisputed. A caller
informed police that appellant was at home and suicidal, but had
been disarmed by two friends who were with him. Officers




                                 1
surrounded the home. At their request, and accompanied by his
friends, appellant voluntarily came outside, was frisked and
promptly handcuffed. He was unarmed. He denied suicidal
thoughts or having guns. The officers were told that one of the
friends had moved guns into the garage. Although the officers
had no reason to believe that anyone was in the house, two of
them entered the home with guns drawn to conduct, in their
words, a “protective sweep to secure the premises.” Inside, they
found illegal weapons and a cannabis oil lab.1
             On these facts, the search was unreasonable under
any theory, whether it be “community caretaking,” “emergency
aid” or “exigent circumstances.” At the time of the search, the
situation was stabilized, appellant was restrained, and everyone
reported to have been in the house was outside and unharmed.
The officers had no information that anyone was in the house nor
did they suspect that a crime had been committed. Therefore, the
police could not lawfully enter and search the premises absent
consent or a search warrant.
             Supreme Court cases authorizing police entry into a
house without a warrant in an emergency are circumscribed by
their facts. As I explain below, this case does not resemble the
type of emergency or exigency that would justify a warrantless
entry.
             First, an emergency justifying the entry and search
of a home may arise when objective evidence leads police to
believe that they must render immediate aid because a person
inside is injured or in distress.


      1  The majority’s statement of facts focuses on what the
officers found. The officers should not have been inside of
appellant’s house in the first place.



                                 2
             In a factually distinguishable case relied upon by the
majority, People v. Roberts (1956) 47 Cal.2d 374, 376, 378, police
entered the home of someone reported to be “sickly” when they
“heard several moans or groans that sounded as if a person in the
apartment were in distress.” The warrantless entry “was lawful
for the purpose of rendering aid.” (Id. at p. 380.) A report that a
person is injured and bleeding, coupled with blood stains outside
the home and a neighbor’s confirmation that an injured person is
within, justify police kicking in the door to help the person.
(Tamborino v. Superior Court (1986) 41 Cal.3d 919, 921-922, 924-
925.)
             The emergency aid theory applies when the police see
shooting victims outside of a house, and believe that injured
persons inside the house require immediate intervention. In
People v. Troyer (2011) 51 Cal.4th 599, 607-609, 612, police
responding to a report of shots fired found badly injured people
on the porch of a home and blood on the front door, a clear
emergency that justified immediate entry into the home to look
for additional victims or a suspect. The court recognized the
right of the police to enter without a warrant, given their
objectively reasonable belief that an occupant was seriously
injured. After a shooting victim was brought to a hospital, as
described in People v. Hill (1974) 12 Cal.3d 731, 754-755, officers
found fresh bloodstains on the porch, fence and auto outside a
house and saw blood on the floor inside the house, an exigency
justifying an entry to locate wounded persons, because waiting
for a warrant could have resulted in the loss of life.
             Here there was no such evidence. At the time of this
search, no one was in appellant’s house moaning and groaning,
no gunshots were reported, and no bloodstains were seen.




                                 3
Instead, appellant was outside of his house, unarmed and
unharmed. There was no justification for the officers to enter
appellant’s house to render aid.
             Second, an emergency may arise if police believe
that a crime is in progress in a house. In People v. Ray (1999) 21
Cal.4th 464, police responded to a report that Ray’s front door
was open and the inside was in shambles. On arrival, officers
found the scene as described; believing that a burglary was in
progress or just took place, they entered to look for possible
victims. Using a “community caretaking” theory, the state
Supreme Court emphasized that police authority to enter is
narrowly limited by the need to ascertain whether someone in the
house is in need of assistance and to provide that assistance. (Id.
at p. 477.) No such facts were present in this matter.
             In Brigham City v. Stuart (2006) 547 U.S. 398, 406,
the U.S. Supreme Court allowed a warrantless entry when police
saw a violent fracas inside a house; officers could enter to rescue
a bleeding occupant and stop the violence. In Michigan v. Fisher
(2009) 558 U.S. 45, police responding to reports of a domestic
dispute saw the defendant inside his house with a cut on his
hand, screaming and throwing things, and blood on his front door
and his car; in the Court’s view, the police had an objectively
reasonable belief that the defendant might be harming a child or
spouse, or would hurt himself in his rage. This danger justified
an immediate entry without a warrant and did not bar use of
evidence obtained during the entry. (Id. at pp. 48-49.)
             Here, the police did not see a crime or altercation
unfolding inside the house before entering, nor did they believe
that a crime had just taken place. Instead, they telephoned
appellant inside the house and asked him to walk outside. He




                                 4
complied. Afterward, they searched the house. No immediate
warrantless entry was justified once appellant was outside.
             Third, the police may enter a house in an emergency
to detain a suicidal person inside the house for a mental
evaluation. The key to cases involving a potential suicide at a
home is a pressing need for police to act but no time for them to
secure a warrant. For example, in Sutterfield v. City of
Milwaukee (7th Cir. 2014) 751 F.3d 542, police entered a home to
detain a woman for a mental evaluation after she remarked to
her psychiatrist, “‘I guess I’ll go home and blow my brains out.’”
(Id. at p. 545.) The court concluded that the officers had to act
expeditiously by forcing entry during the unfolding crisis. (Id. at
p. 566.)
             In Fitzgerald v. Santoro (7th Cir. 2013) 707 F.3d 725,
728-729, officers forced a warrantless entry into the home of an
apparently suicidal person to seize her for a mental evaluation.
The entry was deemed justified based on exigent circumstances,
because the officers objectively and reasonably believed when
they entered the home that the occupant was in need of
immediate assistance. (Id. at pp. 731-732.) A person with a gun
who is threatening suicide may be frisked in the doorway of his
home, to preserve the safety of everyone present. (United States
v. Wallace (5th Cir. 1989) 889 F.2d 580, 582, citing Terry v. Ohio
(1968) 392 U.S. 1, 23.)
             Here, the officers—who had no reason to believe that
an injured, endangered or suicidal person was in the house—
entered to conduct a “protective sweep.”2 The People’s post-
search rationale of “community caretaking” is entirely
unsupported by this record. Appellant was standing on the

      2   An inapt theory that the People abandoned on appeal.



                                 5
sidewalk in handcuffs. The others known to be in the house were
also outside. The emergency was over: the police were not
justified in their search of appellant’s home—whether cursory or
detailed—without his consent or a search warrant. (See State v.
Hyde (N.D. 2017) 899 N.W.2d 671, 677 [police alerted to a
possibly suicidal person by his relatives could not enter his house
without a warrant because they lacked a reasonable basis to
believe there was an ongoing emergency or immediate need to
protect his life].)
              Had police believed that appellant was a danger to
himself or others they would have been justified to take him into
custody. (Welf. & Inst. Code, §§ 5150 et seq. [police may take into
custody someone who is gravely disabled or a danger to himself
or others, for an assessment, evaluation and crisis intervention].)
State law provides a detailed mechanism for seizing weapons if
the police believed that someone is “5150.” The police may
confiscate weapons belonging to persons detained for a mental
health evaluation. (Welf. & Inst. Code, § 8102; City of San Diego
v. Boggess (2013) 216 Cal.App.4th 1494, 1500 [“Section 8102
authorizes the seizure and possible forfeiture of weapons
belonging to persons detained for examination under section 5150
because of their mental condition”].) A detention to evaluate a
person’s mental condition permits the issuance of a search
warrant to seize firearms. (Pen. Code, § 1524, subd. (a)(10).)
              The police did not invoke these justifications to
search appellant’s home or seize his guns. The majority infers
that the officers believed appellant to be a danger to himself.
(Maj. opn. ante, at p. 11.) Tellingly, however, neither the
prosecutor nor the Attorney General argued that the police
detained appellant because they felt he was a danger to himself




                                 6
or others and intended to transport him to a mental health
facility pursuant to the Welfare and Institutions Code. The
inference drawn by the majority is not supported by the record or
by arguments offered in the trial court or on appeal.
             Mere possession of guns is not a valid reason to
search a home, unless the police determine that the gun owner
must be detained for a mental health evaluation. Citizens may
possess guns in their homes. (District of Columbia v. Heller
(2008) 554 U.S. 570, 635.) The Attorney General argues that
officers entered the home to merely “secure” appellant’s guns,
although it is not clear how they could achieve that without
“seizing” the guns. The trial court “found it credible that they
wanted to remove firearms.” But the officers did not believe that
appellant posed a danger to himself or others; it follows that their
seizure of his guns was unauthorized.
             The majority adopts the Attorney General’s
reasoning, asking rhetorically, “Surely a police officer may enter
a residence to protect a suicidal person and secure the premises if
firearms are believed to be present.” (Maj. opn. ante, at p. 7.)
The answer is “Yes” if the armed person is inside the residence
and the police must enter to take the person into custody for a
mental health evaluation. This strawman analysis fails,
however, because appellant was outside of his house and not
believed to be a danger to himself or others.
             The sole justification offered by police for the entry
was to check for people who might be present or injured. But
everyone reported to be in the house was outside and accounted
for. While officers could have sought appellant’s permission to
enter, they did not. While they could have detained appellant for
evaluation at a mental health facility and sought a search




                                 7
warrant to seize his weapons, they did not. (Pen. Code, § 1524,
subd. (a)(10).) Nonetheless, they entered to search. Based on the
facts known to them at the time, they could not.
             Under an objective standard of reasonableness, the
police could not lawfully search appellant’s home. At the time of
the search, appellant was standing outside the house in
handcuffs, being interviewed by the police. The exigency that
brought the police to appellant’s home—his threatened suicide—
was fully controlled before the search took place.
             There is no showing that anyone was in imminent
danger in the house so as justify an immediate, warrantless
entry. The police had no information that an injured spouse or
hidden child required aid. The occupants came outside before the
search, in direct response to the police request that they do so.
Officer Garcia testified that “we didn’t have any specific
information at the time that . . . there was someone in there.”
Officer Corbett’s testimony that “there could be a child” or “there
could be somebody injured” was pure speculation. Police action
cannot be justified by what they did not know, or on a hunch or
unparticularized suspicion. (Terry v. Ohio, supra, 392 U.S. at
p. 27; People v. Block (1971) 6 Cal.3d 239, 244.)
             The totality of the circumstances in the present
matter did not present an emergency justifying a warrantless
entry. The officers were not faced with a tense, uncertain or
evolving situation at the time of the search. No gunshots were
reported before their arrival. They knew that appellant had been
armed with a gun and were entitled to handcuff and frisk him
when he walked outside and approached them, to preserve their
safety and that of third parties. At that point, the need for the
police to render emergency aid ceased.




                                 8
             Theories of “community caretaking,” “emergency aid,”
or “exigent circumstances,” are inapposite on this record. The
police had no information that anyone was in the home let alone
someone who needed immediate assistance or protection, no
weapons were accessible to the handcuffed Ovieda, and no crime
was committed or in progress. Any emergency that might
mandate swift action—without a search warrant to prevent
imminent danger to life—ended when appellant voluntarily came
out of the house, along with the friends who were assisting him.
             The majority speculates that the police entered
appellant’s home to seize his guns and save his life, because he
might have shot himself once they left. The officers did not
articulate any such fear for appellant’s safety during the
suppression hearing.
             I do not question the officers’ motives, honesty or
sincerity. Their conduct, however, is circumscribed. In this
situation, where a crisis has been averted, the officers have
options: (1) they can seek consent to search; (2) they can seek a
search warrant if the person’s mental health is so deteriorated
that he presents a danger to himself or others; or (3) they can
wait to see how or if the situation evolves. If the person’s ensuing
conduct causes concern for his safety or the safety of others, they
could seek a search warrant. The burden is on the State to
demonstrate justification for the search. It has failed to do so.
             The theme of the majority is that the police had to
act. The officers’ collective lack of information that anyone was
in jeopardy, that anyone was upon the premises or that anyone
was injured or in peril belies the state’s theory. Ignorance of a
fact, without more, does not raise a suspicion of its existence.
The protection afforded by the Constitution would be sorely




                                 9
compromised if what is not known or reasonably suspected would
suffice for probable cause. I conclude the police could not lawfully
enter and search the premises absent consent or a search
warrant. The search was unlawful under both the State and
Federal Constitutions. Appellant’s motion to suppress evidence
should have been granted. (Pen. Code, § 1538.5.)
             CERTIFIED FOR PUBLICATION




                                     PERREN, J.




                                10
                   Jean M. Dandona, Judge

            Superior Court County of Santa Barbara

                ______________________________

            Law Offices of Elizabeth K. Horowitz, under
appointment by the Court of Appeal for Defendant and Appellant.
             Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Andrew S. Pruitt, Deputy Attorney
General, for Plaintiff and Respondent.
