Filed 8/13/14 P. v. Rustrian CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A139500
v.
ERIC ORLANDO RUSTRIAN,                                           (San Mateo County Sup. Ct.
                                                                  No. SC076776A)
         Defendant and Appellant.


         Defendant Eric Orlando Rustrian appeals from a judgment of conviction for
possession for sale of marijuana. He contends the trial court erred in denying his motion
to suppress evidence obtained from the warrantless, forced entry by Daly City police into
his Daly City, California home because that entry and the subsequent search, in which
police discovered about 100 marijuana plants, violated his Fourth Amendment rights
against unreasonable searches and seizures.
         On the day in question, the Daly City Police Department was alerted by a 911
dispatcher for the San Francisco Police Department that a mobile phone call had just been
received from a woman who appeared to be under attack in a domestic violence incident,
the mobile phone call had ended abruptly, and the woman’s mobile telephone company
listed her registration address as being in Daly City. The Daly City police dispatched to
this address, which proved to be defendant’s home, made some efforts, but were unable
to obtain any other information indicating the woman lived or was present there, and
found no indications anyone was inside the home during 20 minutes of investigation and



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observation. Upon their entry and search, they found no person was present. Based upon
these facts, we conclude the People did not meet their burden of establishing the
reasonableness of the forced entry. Therefore, we reverse the judgment.
                                    BACKGROUND

       In October 2012, the San Mateo County District Attorney filed a three-count
information charging defendant with the cultivation of marijuana (Health & Saf. Code,
§ 11358); possession for sale of marijuana (Health & Saf. Code, § 11359); and stealing
utility services belonging to PG&E (Pen. Code, § 498, subd. (d)). Defendant pled not
guilty to all three counts.
       Subsequently, defendant moved pursuant to Penal Code section 1538 to suppress
evidence obtained by police as a result of their warrantless search of his home. The facts
presented at the suppression hearing are not disputed.
       At 11:38 a.m. on January 18, 2012, a mobile phone call1 from a 707 area code was
received on the 911 line of the San Francisco Police Department. According to the
testimony of the police custodian of records, the 911 dispatcher taking the call heard
“some kind of physical altercation between a male and a female.” The female was
screaming, “ ‘let me go.’ ” The male said, “ ‘You set me up,’ ” whereupon the call was
disconnected.
       The 911 dispatcher traced the call to T-Mobile. She contacted T-Mobile and was
told the subscriber was named Chastity R. Thompson, “who lived at or the account was
set up” at a Daly City address. Upon cross-examination, the custodian answered
affirmatively when asked if the address was “the billing address” for Thompson. At
11:45 a.m., the 911 dispatcher notified the Daly City police and asked them to conduct a
“well-being” check at the Daly City address.
       Officer Shane Hart of the Daly City Police Department testified that he was
dispatched to the address at about 11:45 a.m. and arrived there about five minutes later.
       1
          In the record and briefs of the parties, the phone involved here is variously
referred to as a “cell phone,” “wireless phone,” and “mobile phone.” We use “mobile
phone” because it is the term that was favored by the trial court.


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He knew that the San Francisco Police Department had received a 911 call from a mobile
phone, in which a female voice was heard to say, “ ‘[d]on’t hit me’ ” and “ ‘[t]ake your
hands off me,’ ” and that it sounded from the call like a domestic incident was occurring.
He was able to access all the information the dispatcher had through a computer in his
car.
       At the Daly City address, to which three officers and a sergeant in total were
dispatched, Hart observed a two-story house. There were no cars parked in front of it or
in the garage. The front entrance was on the second floor of the house. Hart knocked on
the front door. The officers looked through the one window of the house available to
them, which was on the second floor, as well as in the backyard and through a mail slot
on the garage door. They did not hear any sounds coming from inside the house, but Hart
saw two dogs in cages in the garage. However, there remained large portions of the
house into which they could not see. They had the dispatch center place several calls to
the mobile phone number and Hart also called it, but the calls went to voice mail. Hart
considered the fact that the phone number had a “707” area code, but it was not enough
for him to rule out that he was not at the “right house.” Hart also had the dispatch center
do a “premise history check” to “find any other associated names to that address.” The
check did not yield any verifying or additional information, however.
       After being at the house for about 20 minutes waiting for the sergeant to arrive,
Hart “was not positive that the house was empty.” The sergeant made the decision to
forcibly enter the house. According to Hart, he, another officer, and the sergeant did so
because the 911 call indicated that a possible physical domestic violence incident was
occurring and the phone number for the call was registered to a subscriber with this Daly
City address. One of the officers kicked in the front door. All three entered the house
and conducted a “protective sweep” of the entire house, their weapons drawn, both for
officer safety purposes and to see if anyone inside was hurt, wounded, or needed medical
attention.
       The officers did not find anyone on the second level of the house. They went
down an interior stairway into a garage on the lower level, where the two dogs were


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caged. Hart saw closet doors in the garage and opened them because he thought someone
could fit in the closet. He found a locked door directly behind the closet doors that
appeared to lead to a separate room. Hart forced entry through the locked door, and
found a separate room that was approximately 10 feet by 25 feet in size. He observed
approximately 100 marijuana plants and harvesting materials in the room, and believed
this was “a grow operation.” After a few minutes, he left the room. Another officer took
some photographs and the officers left the residence without touching anything.
       Hart contacted a narcotics task force, which arrived about an hour later. A search
warrant was obtained. Evidence was later seized pursuant to the warrant.
       Prior to the task force arriving, defendant arrived at the house and indicated that he
lived there. He told Hart that Chastity Thompson, the T-Mobile subscriber, had moved to
Vallejo.
       Defendant argued in his motion to suppress that the officers violated his Fourth
Amendment rights against search and seizure. As stipulated by the parties at the hearing,
the motion challenged “the entry to the home in the first instance and everything that led
up to the securing of the warrant.”
       At the hearing, defense counsel argued that the officers, at the time they entered
the house, did not have probable cause to believe either that there was a victim in the
residence or that they were in danger, nor a reasonable belief that they could find the
victim of the possible domestic violence incident heard on the 911 call at that location
and at that time. Between the time of the 911 call and their entry, the officers had
observed the house for 20 minutes. They heard no sounds coming from inside it and saw
no one coming or going. Under these circumstances, that they had an address associated
with the mobile phone number “[did] not provide the necessary information to go and
search a specific address without more.” The officer could have remained outside the
house and conducted further investigation to determine the location of the woman heard
in the 911 call. Indeed, counsel argued, after the 20 minutes of investigation by police,
the probability there was anyone inside the house had been reduced, given the lack of



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further calls, any auditory or visual information, or the presence of cars indicating there
was anyone in the house.
       The court asked defense counsel to consider whether there could have been an
assailant inside the home who had secured himself and the victim in an interior room in
the garage and silenced the victim so that they could not have been heard.
Defense counsel responded that the mobile phone call did not provide a sufficient nexus
between the woman in distress and the location for the officers to reasonably believe that
the phone call emanated from the home.
       The People opposed the motion. They argued in their papers that the officers’
forcible entry and warrantless search was justified by the exigent circumstances, based on
what the 911 dispatcher heard occurring on the wireless call, as well as the officers’ right
to conduct a protective sweep of the home to determine if there were any assailants or
injured persons there. Since the marijuana plants were found in plain view in the course
of this lawful sweep, the evidence should not be suppressed.
       At the hearing, the prosecutor argued that the officers had done everything they
could to try to confirm the location of the woman in distress and, left with the
information they had, acted reasonably to enter the home, which was the only
information they had of the woman’s possible location. The officers “would have been
derelict in their duties, had they gone to the house, said well, looks like nobody’s home,
maybe we should get a search warrant to see if we can get in the house. That defeats the
whole premises of what exigent circumstances are.”
       The trial court denied defendant’s motion to suppress. It noted that an officer was
at the premises five minutes after the original 911 call, demonstrating the seriousness of
the exigency presented to the Daly City Police Department. Once there, the officers
made reasonable efforts to try to determine a nexus between the 911 caller and the
premises in addition to the information they already had, but their investigation neither
confirmed nor dispelled the reasonable suspicions that had brought them to the Daly City
address in the first place. The court found “that their actions were, in fact, reasonable
based on the information and the totality of the circumstances presented to them at the


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time, to wit, a woman clearly in distress and being physically assaulted and attempting to
curtail the assault first by, apparently, pleading with her attacker and secondarily by
seeking the assistance of the police and then the abruptness of the call being dropped,
suggesting that her resistance was, in fact, overcome, that I think these officers acted
swiftly and appropriately under the circumstances.” Citing Tamborino v. Superior Court
(1986) 41 Cal.3d 919 (Tamborino), the court further stated that it was “not going to
second guess the actions of officers in the field, when asked to come to the aid of
someone who’s either injured or under attack. So I think the conduct was reasonable
under the circumstances, that there was an exigency that they responded to.”
       The court made clear it considered the matter “a very, very close case.” On the
one hand, the officers “had information that led them to believe that somebody may be
present and injured and in distress in that residence. On the other hand, the court had “a
concern that the only information [the police] have is the registration address of the cell
phone and the . . . call comes in over a cell phone. And, I think that the operative
question is whether that by itself, cause that’s, essentially, what they have, authorizes the
entry into the home.” The court noted that other cases, such as Tamborino, involved
evidence of a mobile phone call and somebody being present at the location.
       Subsequently, defendant withdrew his plea of not guilty to count 2 of the
information, possession for sale of marijuana (Health & Saf. Code, § 11359) and entered
a plea of no contest. The remaining two counts were dismissed. At sentencing, the court
placed defendant on probation for three years, subject to various terms and conditions,
including that he serve 90 days in the county jail and abstain from the use of alcohol and
controlled substances.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION

A. Legal Standards
       “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to
that court’s factual findings, express or implied, if they are supported by substantial



                                              6
evidence. [Citation.] We exercise our independent judgment in determining whether, on
the facts presented, the search or seizure was reasonable under the Fourth Amendment.”
(People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
       Given that the facts here are not disputed, we focus on the law regarding the
search of a person’s home and seizure of evidence found there. The Fourth Amendment
protects individuals against unreasonable searches and seizures. (U.S. Const., 4th
Amend.; Elkins v. United States (1960) 364 U.S. 206, 222.) Its “touchstone” is
“reasonableness,” determined “ ‘by assessing, on the one hand, the degree to which [the
search or seizure] intrudes upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.’ ” (United
States v. Knights (2001) 534 U.S. 112, 118-119.)
       The Supreme Court noted earlier this year that, “when it comes to the Fourth
Amendment, the home is first among equals.” (Florida v. Jardines (2013) ___ U.S. ___
[133 S.Ct. 1409, 1414].) “It is axiomatic that the ‘physical entry of the home is the chief
evil against which the wording of 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 on agents of the government who seek to
enter the home for purposes of search or arrest.” (Welsh v. Wisconsin (1984) 466 U.S.
740, 748 (Welsh).) Thus, the Supreme Court has recognized, “as ‘a “basic principle of
Fourth Amendment law[,]” that searches and seizures inside a home without a warrant
are presumptively unreasonable.’ ” (Ibid., quoting Payton v. New York (1980) 445 U.S.
573, 586.)
       The presumption of unreasonableness will stand “unless the police can show that
[the search or seizure] falls within one of a carefully defined set of exceptions based on
the presence of ‘exigent circumstances.’ ” (Coolidge v. New Hampshire (1971) 403 U.S.
443, 474-475.) 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. There is no ready litmus test for determining whether such circumstances


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exist, and in each case the claim of an extraordinary situation must be measured by the
facts known to the officers.” ’ ” (People v. Panah (2005) 35 Cal.4th 395, 465.) United
States Supreme Court decisions “have emphasized that exceptions to the warrant
requirement are ‘few in number and carefully delineated,’ [citation], and that the police
bear a heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.” (Welsh, supra, 466 U.S. at pp. 749-750.)
        The People cite a Ninth Circuit case in which another, related exception is
discussed, referred to as the “emergency doctrine.” The court applied it to a circumstance
in which a possible domestic violence victim had already left the premises and there was
no reason to believe evidence of a crime would be found in the residence, but the person
who appeared to have perpetrated the violence remained inside and there was a concern
that he would hurt himself. (United States v. Martinez (9th Cir. 2005) 406 F.3d 1160,
1163-1164 (Martinez).) The court defined this doctrine as containing three requirements:
“(1) The police must have reasonable grounds to believe that there is an emergency at
hand and an immediate need for their assistance for the protection of life or property[;]
(2) The search must not be primarily motivated by intent to arrest and seize evidence[;
and] (3) There must be some reasonable basis, approximating probable cause, to associate
the emergency with the area or place to be searched.” (Id. at p. 1164.)
        The Martinez court pointed out that “[t]he volatility of situations involving
domestic violence make them particularly well-suited for an application of the emergency
doctrine.” (Martinez, supra, 406 F.3d at p. 1164.) The court observed, “ ‘Courts have
recognized the combustible nature of domestic disputes, and have accorded great latitude
to an officer’s belief that warrantless entry was justified by exigent circumstances when
the officer had substantial reason to believe that one of the parties to the dispute was in
danger.’ ” (Id. at p. 1165, quoting Tierney v. Davidson (2d Cir. 1998) 133 F.3d 189,
197.)
B. Analysis
        We agree with the trial court that this case involves a very close call. The question
is whether the People met their burden of proving that the Daly City police were


                                              8
reasonable in their warrantless, forcible entry and search of a residence under the
circumstances of this case. We conclude the police were not reasonable in doing so.
       Our analysis begins with the understanding that the People bear the “heavy
burden” of proving that the police entry and search was reasonable, particularly because
the residence was defendant’s home. (Welsh, supra, 466 U.S. at pp. 748-749; Florida v.
Jardines, supra, 133 S.Ct. at p. 1414.) The facts presented by the People are clear. At the
time of their forcible entry, the Daly City police officers knew that (1) a mobile phone
call was received by the 911 line of the San Francisco Police Department from a
woman apparently being physically assaulted by a man before the call abruptly ended;
(2) no one answered calls to the mobile phone number despite repeated calls; (3) T-
Mobile records indicated the number was registered to a female subscriber,
Thompson, with a Daly City address listed as her registration address; (4) a residence
was located at the Daly City address; and (5) during 20 minutes of efforts by police
dispatched to the residence, they heard and saw nothing to indicate anyone other than
two dogs were inside that residence, or that it was Thompson’s home. Their
investigative efforts were observing the residence, knocking on the front door, looking
through a front window, looking in the backyard, looking into a mail slot in the
garage, calling the mobile phone number, and running a premises history check. The
officers heard no sounds coming from inside the house and saw no cars parked in
front of the residence or in its garage.
       We applaud the police acting expeditiously in response to a possible domestic
violence event and with deliberation before entering the Daly City residence, given
the Fourth Amendment prohibition against unreasonable search and seizure.
However, we would be remiss if we did not point out three critical factors in our
analysis of the circumstances. First, the police never established that the Daly City
address was Thompson’s home. Indeed, the custodian of records who testified on
behalf of the People agreed that T-Mobile had provided a billing address only.




                                             9
       Second, the officers’ observations at the scene during the 20 minutes before
they entered the premises provided no indications that anyone was present in the
residence, or that the call had been placed from that residence.
       Third, we cannot agree that the police did everything reasonably possible to
determine whether Thompson lived at or anyone was in the Daly City residence. For
example, there is no indication that any of the four officers at the scene canvassed
neighboring homes to ask who lived at the residence or had been seen there that
morning. Also, although a premises history check was done, the record does not
indicate the police checked any public records regarding Thompson to determine if
she listed the Daly City address as a residence.2
       The People cite several cases for the reasonableness of the officers’ forced
entry (as opposed to the officers’ subsequent conduct inside the residence). They are
Brigham City v. Stuart (2006) 547 U.S. 398, 403; People v. Troyer (2011) 51 Cal.4th
599, 607; Tamborino, supra, 41 Cal.3d at page 923; and, regarding the emergency
doctrine, Martinez, supra, 406 F.3d at page 1164. In each of these cases, the police
had reason to believe that someone was present at the address to which they were
dispatched. (Brigham City v. Stuart, supra, 547 U.S. at pp. 400-401 [police heard
shouting from inside, observed juveniles drinking in the backyard, and, upon entering
the backyard, saw an altercation taking place inside the home]; People v. Troyer,
supra, 51 Cal.4th at p. 603 [police, dispatched to a location where shots were heard,
observed first aid being administered to a victim on the porch and blood on the front
door]; Tamborino, supra, 41 Cal.3d at pp. 921-922 [police dispatched to an address


       2
          The custodian of records testified that the 911 dispatcher’s report indicated the
call was traced to a T-Mobile cell tower in southwest San Francisco, but the trial court
did not include this in its analysis because there was no indication the police at the scene
were aware of this. There also is no indication in the record whether the police had the
technological ability to obtain any Global Positioning System Information (GPS)
regarding the location of the phone. If they did, it would have been reasonable to pursue
this information as well.


                                             10
where a robbery was reported, observed blood spots outside the building and on the
walkway to the subject residence, received confirmation from a neighbor that an
injured person was inside, and heard sounds of movement inside the residence];
Martinez, supra, 406 F.3d at pp. 1162-1163 [police dispatched to a residence in
response to a domestic violence call recognized the address as the residence of a
previous domestic violence incident, observed a woman upset and crying in the front
yard, and heard angry, hostile yelling from inside the house].) No such evidence
existed here, making these cases inapposite.
        In the absence of any evidence establishing that Thompson currently lived or
anyone was present on the morning in question at this residence, and because not all
reasonable efforts were taken to determine these matters, we conclude the People did
not meet their heavy burden of establishing the reasonableness of the forced entry and
subsequent search of defendant’s home. The call to the 911 line established the
existence of exigent circumstances. However, it did very little to establish where
these exigent circumstances were located. The police forcibly entered defendant’s
home with more questions than answers when they could have reasonably
investigated further before making a decision that implicated “ ‘the chief evil against
which the wording of the Fourth Amendment is directed.’ ” (Welsh, supra, 466 U.S. at p.
748.)
        Given our conclusion, we do not address defendant’s contention that the trial
court improperly imposed as a condition of probation that he abstain from the use of
alcohol.




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                                   DISPOSITION
      The judgment is reversed. This matter is remanded to the trial court for
proceedings consistent with this opinion.




                                                 _________________________
                                                 Brick, J.*



We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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




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