                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                       BRADLEY HAROLD WILSON,
                              Appellant.

                          No. CR-14-0308-PR
                           Filed June 3, 2015

           Appeal from the Superior Court in Navajo County
               The Honorable Robert J. Higgins, Judge
                         No. CR-2011-01027
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division One
                235 Ariz. 447, 333 P.3d 774 (2014)
             AFFIRMED IN PART AND DEPUBLISHED

COUNSEL:

Brett R. Rigg, Shane J. Shumway (argued), The Rigg Law Firm, P.L.L.C.,
Pinetop, Attorneys for Bradley Harold Wilson

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Myles A. Braccio (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BERCH, BRUTINEL, and
TIMMER joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1          The Fourth Amendment generally requires police to obtain a
warrant to search a home. Courts have recognized exceptions to this
requirement, such as the exigent circumstances and emergency aid
                             STATE V. WILSON
                            Opinion of the Court

exceptions. The State here urges us to extend the community caretaking
exception, which applies to certain vehicle searches, to justify the
warrantless search of a home. We decline to do so.

                                      I.

¶2            Police officers and paramedics went to Bradley Wilson’s
residence after neighbors complained about his erratic behavior. Wilson
said that he had “up to seven pounds of mercury” in his house in a glass jar
and that he and his family had been handling the mercury over several
years. Concerned about possible contamination, a paramedic contacted the
fire department, which ordered Wilson to be “rinsed off.” Wilson complied
and was taken to a hospital to be examined.

¶3           The fire department sent a volunteer firefighter who had
experience dealing with mercury spills to assess the situation at Wilson’s
home. Believing they should gather information for Wilson’s medical
treatment and noting that the outside temperature was approaching
mercury’s vaporization point, the firefighter and a police officer entered the
home “to see if there was mercury, to see where it was at and how much
there was, and get an idea of what [they] were actually dealing with.”

¶4            Once inside, the officer smelled marijuana. He traced the
smell to a laundry room, where several marijuana plants were hidden by a
hanging blanket. The officer left and obtained a search warrant. He then
re-entered the home and seized the marijuana. No mercury was found,
though the officer saw an “indication of mercury” in the hallway and the
firefighter saw traces on the floor. The firefighter concluded that all he
could do was to tell Wilson to clean it up.

¶5            Wilson was charged with production of marijuana and three
counts of possession of drug paraphernalia. Denying Wilson’s motion to
suppress, the trial court concluded that exigent circumstances permitted the
warrantless search and admitted evidence of the marijuana. Wilson was
tried and found guilty on all charges.

¶6           The court of appeals reversed the denial of the motion to
suppress, finding that the search was not justified by the exigent
circumstances, emergency aid, or community caretaking exceptions to the
warrant requirement. State v. Wilson, 235 Ariz. 447, 452 ¶ 21, 333 P.3d 774,

                                      2
                              STATE V. WILSON
                             Opinion of the Court

779 (App. 2014). The State petitioned for review only as to the court of
appeals’ holding that the community caretaking exception did not apply.

                                       II.

¶7             We review the denial of a motion to suppress evidence for an
abuse of discretion, considering only the evidence presented at the
suppression hearing and viewing the facts in the light most favorable to
sustaining the trial court’s ruling. State v. Manuel, 229 Ariz. 1, 4 ¶ 11, 270
P.3d 828, 831 (2011). Both the Fourth Amendment to the United States
Constitution and Article 2, Section 8 of the Arizona Constitution protect
against unlawful searches and seizures. The search of a home without a
warrant is presumptively unreasonable, and the fruits of the search must
be suppressed at trial unless some exception applies. Mincey v. Arizona, 437
U.S. 385, 390 (1978); State v. Bolt, 142 Ariz. 260, 265, 689 P.2d 519, 523 (1984).

                                       A.

¶8             A warrantless search of a home may be justified when “the
exigencies of the situation make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the
Fourth Amendment.” Mincey, 437 U.S. at 394. Warrantless entry into a
home may be justified, for example, when police are in hot pursuit of a
fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), or
reasonably believe that the destruction of evidence is imminent, Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011). Officers also may make a warrantless
entry onto private property to fight a fire and investigate its cause. Michigan
v. Tyler, 436 U.S. 499, 509 (1978).

¶9             “Any warrantless entry based on exigent circumstances must,
of course, be supported by a genuine exigency.” King, 131 S. Ct. at 1862.
That is, an objectively reasonable basis must exist for officers to believe that
the circumstances justify a warrantless entry. See id at 1856. Exigent
circumstances exist when “a substantial risk of harm to the persons
involved or to the law enforcement process would arise if the police were
to delay a search until a warrant could be obtained.” State v. Greene, 162
Ariz. 431, 433, 784 P.2d 257, 259 (1989) (citation omitted).

¶10          To lawfully make a warrantless entry to arrest a fleeing
suspect or to prevent the imminent destruction of evidence, police must

                                        3
                            STATE V. WILSON
                           Opinion of the Court

also have probable cause. See State v. Decker, 119 Ariz. 195, 197, 580 P.2d
333, 335 (1978). Exigency alone does not allow police to enter for these
purposes; they must also have facts - that is, probable cause - that would
support issuance of a warrant if time allowed. Cf. Florida v. Harris, 133
S. Ct. 1050, 1055 (2013) (noting that a “police officer has probable cause to
conduct a search when the facts available to [him] would warrant a [person]
of reasonable caution in the belief that contraband or evidence of a crime is
present”) (internal quotation marks omitted).

¶11           Incident to a lawful arrest, police may make a limited
warrantless search of a residence as part of a “protective sweep.” State v.
Fisher, 226 Ariz. 563, 565 ¶ 8, 250 P.3d 1192, 1194 (2011). Such searches do
not require probable cause. Id. Wilson was not arrested by the officers at
his residence, and the State has not argued that the entry was justified by
the “protective sweep” doctrine. Cf. id. at 566 ¶ 10, 250 P.3d at 1195
(assuming, but not deciding, that protective sweeps may be permitted
when a suspect is detained and questioned but not yet arrested outside of
a residence).

¶12              Officers also “may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from
imminent injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). This
“emergency aid exception” does not depend on the officers' subjective
intent or the seriousness of any crime they are investigating when the
emergency arises. Id. at 404–05. Instead, it requires only “an objectively
reasonable basis for believing,” that “a person within [the house] is in need
of immediate aid.” Michigan v. King, 558 U.S. 45, 47 (2009) (internal
quotation marks and citations omitted). The Supreme Court’s decision in
Brigham City supersedes our case law holding that the emergency aid
exception turns on the officers’ “primary motive” in entering the home. See,
e.g., State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760 (1984).

¶13           Here, the court of appeals held that the exigent circumstances
and emergency aid exceptions did not apply. Wilson, 235 Ariz. at 450–51
¶¶ 14, 17, 333 P.3d at 777–778. Although the officers had reason to believe
that a substantial amount of mercury might be present in Wilson’s home,
possession of mercury is not itself unlawful. The police did not believe that
anyone was inside the house, and the State did not offer evidence
suggesting that mercury spilled inside threatened the immediate safety of
any person. Id. at 450 ¶ 14, 333 P.3d at 777. “Because there was neither

                                     4
                             STATE V. WILSON
                            Opinion of the Court

evidence of a crime nor evidence of an imminent threat to the health of any
person or the public generally,” the court of appeals concluded that exigent
circumstances did not justify the entry. Id. Moreover, the emergency aid
exception did not apply because the State offered no evidence that locating
the mercury was necessary for Wilson’s safety. Id. at 451 ¶ 17, 333 P.3d at
778. Wilson, after all, was not in the house: he was responsive and he had
gone to the hospital. Id.

¶14         Because the State did not seek review on these issues, we
assume for purposes of our analysis that the exigent circumstances and
emergency aid exceptions did not apply.

                                      B.

¶15           The State here urges another exception to the warrant
requirement: community caretaking. In Cady v. Dombrowski, 413 U.S. 433
(1973), the Supreme Court upheld the warrantless search of an impounded
vehicle for a firearm. Reasoning that local police frequently investigate
events “in which there is no claim of criminal liability and engage in what,
for want of a better term, may be described as community caretaking
functions, totally divorced from the detection, investigation, or acquisition
of evidence relating to the violation of a criminal statute,” id. at 441, the
Court concluded that the search was justified by “concern for the safety of
the general public who might be endangered if an intruder removed a
revolver from the trunk of the vehicle,” id. at 447.

¶16           Police officers perform many tasks outside of criminal
investigation that might properly be called community caretaking
functions. “Any police officer at any given time may perform the
responsibilities of the office by acting as a domestic-relations counselor . . .
or as a midwife . . . or as a sympathetic emissary who has the unpleasant
task of informing some citizen of the loss of a loved one, or even as a taker
of measurements or the preparer of accident reports that may prove of
value solely to some insurance adjuster.” State v. Cook, 440 A.2d 137, 139
(R.I. 1982). But police officers do not become exempt from the Fourth
Amendment’s warrant requirement merely because they are engaged in
community caretaking functions.




                                       5
                              STATE V. WILSON
                             Opinion of the Court

                                        C.

¶17             Although Cady described the warrantless search in that case
as involving a community caretaking function, the Court based its
reasoning on its “recognition of the distinction between motor vehicles and
dwelling places.” 413 U.S. at 447. The Court later clarified that “less
rigorous warrant requirements govern because the expectation of privacy
with respect to one's automobile is significantly less than that relating to
one's home or office.” South Dakota v. Opperman, 428 U.S. 364, 367 (1976); cf.
Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (observing that “when it comes
to the Fourth Amendment, the home is first among equals”).

¶18          In Opperman, the Court built on Cady’s foundation in
approving the warrantless “inventory” search of an impounded vehicle to
secure valuables or dangerous objects. 428 U.S. at 375–76. It noted that
“[a]utomobiles, unlike homes, are subjected to pervasive and continuing
governmental regulation and controls, including periodic inspection and
licensing requirements,” and that “[t]he expectation of privacy as to
automobiles is further diminished by the obviously public nature of
automobile travel.” Id. at 368.

¶19            The community caretaking exception recognized in Cady and
Opperman thus is grounded in the reduced expectation of privacy in
automobiles as distinct from homes. Recognizing this distinction, several
federal courts of appeal have limited the community caretaking exception
to automobiles. See, e.g., Ray v. Township of Warren, 626 F.3d 170, 177 (3d
Cir. 2010); United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994); United States
v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993); United States v. Pichany, 687 F.2d
204, 208–09 (7th Cir. 1982).

¶20           We agree with the Seventh Circuit that Cady “intended to
confine the holding to the automobile exception and to foreclose an
expansive construction of the decision allowing warrantless searches of
private homes or businesses.” Pichany, 687 F.2d at 209; cf. Payton v. New
York, 445 U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.”). Courts in
other states have reached a similar conclusion. See, e.g., State v. Vargas, 63
A.3d 175, 187 (N.J. 2013) (holding that, absent consent or exigent
circumstances, the community caretaking doctrine does not authorize

                                        6
                             STATE V. WILSON
                            Opinion of the Court

warrantless entry into home); State v. Gill, 755 N.W.2d. 454, 459–60 ¶ 18
(N.D. 2008) (declining to extend the community caretaking exception to
police entry into homes); State v. Christenson, 45 P.3d 511, 514 (Or. App.
2002) (reaching same conclusion, noting that warrantless entry might be
authorized under “analogous exceptions, such as the ‘emergency
doctrine’”).

¶21             Some other courts have seemingly applied the community
caretaking exception in approving warrantless searches of homes. But
many of these opinions use the phrase “community caretaking” broadly to
encompass situations involving exigent circumstances or emergency aid.
See, e.g., United States v. Quezeda, 448 F.3d 1005, 1007 (8th Cir. 2006) (“A
police officer may enter a residence without a warrant as a community
caretaker where the officer has a reasonable belief that an emergency exists
requiring his or her attention.”); State v. White, 168 P.3d 459, 466–67 ¶ 36
(Wash. App. 2007); State v. Alexander, 721 A.2d 275, 285 (Md. App. 1998). A
few states have explicitly combined the emergency aid and community
caretaking exceptions. See, e.g., Kyer v. Commonwealth, 601 S.E.2d 6, 12 (Va.
App. 2004) (“[W]e find that any distinction between the two exceptions has
been effectively eradicated in [Virginia]”). And in other cases relying on
the community caretaking exception, either the exigent circumstances or
emergency aid exception might have allowed the warrantless search. See,
e.g., People v. Ray, 981 P.2d 928, 933–35 (Cal. 1999) (relying on community
caretaking exception to approve warrantless entry into home that police
believed might have been burglarized).

¶22           The State is not persuasive in arguing that we should extend
the community caretaking exception to homes to ensure public safety. In
situations involving criminal activity, fires or analogous dangers, or the
need to render immediate aid, the exigent circumstances and emergency
aid exceptions appropriately allow warrantless entry by law enforcement
officers, whether or not they are engaged in community caretaking
functions. Arizona law also authorizes county environmental or health
authorities to seek a warrant authorizing entry into a building in order to
“destroy, remove or prevent” a “nuisance, source of filth or cause of
sickness.” A.R.S. § 36-603; see also id. § 36-602 (requiring property owner or
occupant to remove “nuisance, source of filth or cause of sickness” within
twenty-four hours’ notice). Extending the community caretaker exception
to homes would substantially reduce the protection of privacy afforded by


                                      7
                           STATE V. WILSON
                          Opinion of the Court

the warrant requirement without significantly increasing the ability of law
enforcement to make searches to protect the public.

¶23           Our conclusion, although based on the Fourth Amendment,
also comports with the Arizona Constitution, which more explicitly
protects homes than does its federal counterpart. Ariz. Const. art. 2, § 8
(“No person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”). We have read our constitution’s more specific
language as affording greater protection to privacy in the home in some
circumstances, Bolt, 142 Ariz. at 264–65, 689 P.2d at 523–24, and for that
additional reason we are disinclined to extend the scope of the community
caretaking exception beyond the automobile context.

                                   III.

¶24            We hold that the community caretaking exception does not
apply to homes. If exigent circumstances or an emergency requiring
immediate attention are present, however, police may make a warrantless
entry into the home under those exceptions. We affirm paragraphs 18–20
of the court of appeals’ opinion and order that the opinion be depublished,
reverse the trial court’s order denying the motion to suppress, and remand
to the trial court for further proceedings.




                                    8
