People v. Nunes ( 2021 )

SEE DISSENTING OPINION
Filed 5/6/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046395
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1757955)
v.
JOSEPH BROOK NUNES,
Defendant and Appellant.
After the trial court denied his Penal Code section 1538.5 motion to suppress
evidence, defendant Joseph Nunes pleaded no contest to possessing an explosive and
possessing a destructive device. He was granted probation. Defendant contends the trial
court erred in denying the motion. For the reasons explained, we agree and will reverse
the judgment.
I. BACKGROUND
Defendant moved to suppress evidence from the warrantless search of a backyard
shed and a cabinet within it by a fire department captain. The prosecution argued the
search was valid under the exigent circumstances exception to the Fourth Amendment
warrant requirement, and the trial court found the exception applicable.
At the hearing on the motion, a firefighter who is a captain in the Milpitas Fire
Department testified he responded to defendant’s house a little after 4:30 one afternoon
based on a report of a “whole structure fire,” with fire coming from the house. But when
he arrived, he saw no fire and no smoke. Neighbors standing outside told him they had
recently seen a plume of smoke coming from the backyard. A police officer was already
on scene; the officer “pounded on the door” of the house to check if anyone was inside.
After no one answered, the fire captain opened a gate and entered the backyard.
The fire captain testified he “smelled smoke in the air that wasn’t consistent of,
like, cooking.” He began investigating to confirm there was no imminent danger.
Looking around for any active fire, he found none. Because there was still an odor of
smoke, he and four other firefighters “continued to search around the back.” The smell
was “around the entire backyard,” not coming from an identifiable place. There were
some test tubes and chemistry equipment on the ground, as well as a homemade toy
rocket that looked burned. Then the captain noticed a closed shed. No smoke was
coming from it, nor did the smell of smoke seem to originate from there. He opened the
shed as part of his fire investigation because he wanted “to make sure everything is
clear.”
Inside the shed was a metal cabinet. In his testimony, the captain candidly
admitted there was nothing specific about the cabinet that made him think he should look
inside: “Q: Was there anything about the shed in particular, the cabinet in particular that
made you feel that you needed to check that area? [¶] A: Not in particular.” Still, he
opened the cabinet, and saw bottled chemicals he was not familiar with. Since he did not
know what they were, he called the hazardous materials team to respond. Police were
also called back to the scene.
The police ultimately obtained a search warrant, based in part on the chemicals
found in the cabinet. After the search warrant was executed, the district attorney charged
defendant with numerous offenses for possessing explosives and explosive materials.
Defendant moved to suppress evidence obtained from the fire captain’s initial, pre-
warrant search of the backyard, shed, and cabinet.
II. DISCUSSION
On appeal from the denial of a motion to suppress, we defer to the trial court’s
factual findings that are supported by substantial evidence. We then apply our
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independent judgment to decide the legal question of whether those facts establish
circumstances justifying a warrantless search, in this case exigency. (People v. Duncan
(1986) 42 Cal.3d 91, 98.) The legal question is extremely close in this case. Our
decision is guided by well-established Fourth Amendment principles: as a recognized
extension of the home, the area and containers searched here are entitled to the highest
degree of privacy protection our Constitution affords. And any exceptions to that
protection must be, in the words of the Supreme Court, “ ‘jealously and carefully
drawn.’ ” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 455.)
The Fourth Amendment to the United States Constitution prohibits warrantless
searches of places where someone has a reasonable expectation of privacy. (Coolidge v.
New Hampshire, supra, 403 U.S. at p. 454.) Since privacy expectations are particularly
strong in the home, warrantless searches of residences are presumed invalid. (Payton v
New York (1980) 445 U.S. 573, 586.) Indeed, “ ‘physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed.’ ” (Id. at p. 585.)
The search in this case is considered a home search for Fourth Amendment purposes,
because it occurred within the “curtilage” (the area immediately surrounding and
associated with the home). (Florida v. Jardines (2013) 569 U.S. 1, 6.) The close
connection between the curtilage and the home means that the curtilage is entitled to the
same degree of privacy protection as the home itself. (California v. Ciraolo (1986)
476 U.S. 207, 212 [“The protection afforded the curtilage is essentially a protection of
families and personal privacy in an area intimately linked to the home, both physically
and psychologically, where privacy expectations are most heightened.”].)
Recognized exceptions to the general rule against warrantless home searches must
be narrowly construed to prevent the exceptions from swallowing the important Fourth
Amendment right. (See Coolidge v. New Hampshire, supra, 403 U.S. at p. 454.) One
exception is when an exigent circumstance makes the needs of law enforcement so
compelling that a warrantless search becomes objectively reasonable. (Kentucky v. King
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(2011) 563 U.S. 452, 460.) The exigency asserted here is “an emergency situation
requiring swift action to prevent imminent danger to life or serious damage to property.”
(People v. Ramey (1976) 16 Cal.3d 263, 276.)
It was the prosecution’s burden to show the fire captain’s search of the cabinet was
a “swift action [necessary] to prevent imminent danger.” (People v. Smith (2020)
46 Cal.App.5th 375, 385–386.) In our independent view, the prosecution did not meet
that burden. Key to our decision is the principle that the justification for searching based
on exigent circumstances “ends when the emergency passes.” (People v. Duncan (1986)
42 Cal.3d 91, 99.) And here, the emergency which may have existed when fire personnel
arrived on scene was no longer apparent when the fire captain opened the cabinet inside
the shed.
Whether exigent circumstances justify a search depends on the circumstances
known to the officer at the time of the search. (People v. Duncan, supra, 42 Cal.3d at
p. 99) According to his testimony, the fire captain initially entered the backyard because
of the neighbor’s statement about seeing smoke “and also the initial report of a structure
fire coming from the house.” That action was reasonable and permissible under the
Fourth Amendment because it was premised on a specific, articulated exigency sufficient
to justify warrantless entry -- a possible house fire. But by the time the fire captain
became aware of the cabinet, the circumstances had changed significantly. Contrary to
the initial report, the house was not on fire at all. And after an inspection of the backyard
and a look inside the shed, there did not seem to be an active fire anywhere on the
premises. Nor was there any visible smoke, only a persistent odor in the general area that
was not consistent with cooking. We must evaluate whether there was an exigency
sufficient to justify the search of the cabinet based on the circumstances known to the fire
captain at the time of that search—which, again, had changed substantially from the time
he arrived. The question thus becomes: Does the persistent odor of unspecified smoke
allow for a warrantless search of a cabinet within a shed in a backyard? In this case the
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Fourth Amendment’s strong protection of the right to privacy within the home requires us
to answer that question in the negative.
We acknowledge that the smell of an unspecified kind of smoke, the source of
which is not apparent, can justify further investigation and warrantless entry. But in this
particular situation, it did not rise to the level of an emergency sufficient to bypass
obtaining a search warrant for the contents of a cabinet which did not appear to be the
source of the smell. We are not persuaded that opening the cabinet in the shed was
necessary to avoid imminent danger to life or serious property damage, given that the
urgency of the situation had dissipated. Indeed, the fire captain’s testimony was that
nothing “in particular” about the cabinet led him to open it. The exigent circumstances
exception therefore does not extend to the cabinet search. Application of the exception
requires both a specific articulation of an emergency threatening life or destruction of
property, and an explanation of why the action in question was immediately necessary to
address the specified emergency. With regard to the cabinet search, we see neither in this
record.
People v. Duncan, supra, 42 Cal.3d 91, 105, illustrates the kind of specific,
articulable facts which will support the existence of an emergency and which are absent
here. In Duncan, the California Supreme Court upheld a warrantless search of a
residence where a police officer (1) had been specifically informed that an illicit drug
laboratory was operating on the premises; (2) upon arrival smelled a chemical he knew to
be associated with illicit drug manufacture; (3) knew that the volatile nature of the
chemicals involved in the production of drugs posed a high danger of explosion; and
(4) identified the chemical odor as coming from inside the residence. (Id. at pp. 104–
105.)
In addition to lacking specific, articulable facts indicating an ongoing emergency,
the circumstances here are distinguishable from authorities cited by the attorney general
involving investigations to ascertain how a fire started. Those cases hold that a
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warrantless search for a fire’s origin after it is extinguished is permissible under the
exigent circumstances exception. (See, e.g, Michigan v. Tyler (1978) 436 U.S. 499, 509;
Michigan v. Clifford (1984) 464 U.S. 287, 293; People v. Avalos (1988)
203 Cal.App.3d 1517, 1520.) In such situations, the primary justification for the search is
that “[p]rompt determination of the fire’s origin may be necessary to prevent its
recurrence.” (Michigan v. Tyler, supra, at p. 510.) Although the fire captain described
seeing evidence of an extinguished fire in defendant’s backyard, according to that
description its source would not appear to have been the cabinet or its contents.
We view the facts here as closer to People v. Baird (1985) 168 Cal.App.3d 237,
245, where police officers noticed a “strong overpowering smell of ether” coming from a
house and asked the fire department to investigate. (Id. at p. 240.) The responding fire
marshal was told the police suspected a drug lab operating on the premises and confirmed
the smell of ether, which he knew to be “highly flammable and explosive,” so he entered
the house to determine its source. (Id. at p. 241.) That entry was found to be unjustified
under the exigent circumstances exception because the evidence did “not support a
determination that any of the officials involved believed they were confronted with an
‘emergency situation requiring swift action.’ ” (Id. at p. 245.) The circumstances in that
case—a suspected drug lab generating the odor of an identified chemical known to be
highly explosive—were substantially more pressing than those presented here.
In conducting our independent review, we are mindful of the paramount privacy
interest in the home (including its curtilage), and of our duty to narrowly construe
exceptions to the Fourth Amendment warrant requirement. We therefore conclude that
the fire captain’s opening of the cabinet inside the shed, however prudent and well
intentioned, was not an action necessary to prevent imminent danger. (See Brigham City
v. Stuart (2006) 547 U.S. 398, 404 [officer’s subjective motivation is irrelevant].)
Defendant’s motion to suppress should have been granted as to the evidence found in the
cabinet.
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Because we will reverse the judgment, we do not reach defendant’s challenge to
the validity of certain probation conditions.
III. DISPOSITION
The judgment is reversed. The case is remanded with directions for the trial court
to vacate its order denying defendant’s motion to suppress and to enter a new order
granting the motion, as to the evidence found in the cabinet only. Defendant shall be
allowed to withdraw his no contest pleas.
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____________________________________
Grover, J.
I CONCUR:
____________________________
Greenwood, P. J.
H046394 – People v Nunes
ELIA, J., Dissenting
I respectfully dissent. I would conclude that the trial court did not err by denying
Nunes’s motion to suppress evidence obtained during warrantless searches of his
backyard, shed, and cabinet.
I agree with the majority that the warrantless search of the backyard was justified
by exigent circumstances based on the report of a structure fire and the neighbors’
observations of a large plume of smoke recently coming from the backyard. I also agree
with the majority’s conclusion that the warrantless search of the shed was justified by
exigent circumstances. The fire captain testified that there was a strong smell of smoke
throughout the backyard. He found a homemade rocket device in the backyard. The
device appeared burnt, but the fire captain could not determine whether the device was
the source of the smoke. The discovery of the homemade device caused the fire captain
to be concerned about the presence of “explosive material.” The fire captain also
observed chemistry equipment—including test tubes, flasks, and beakers—littered about
the backyard. In my view, given the smell of smoke with no definitive source and—
crucially—the possible presence of explosive material, it was reasonable for the fire
captain to be concerned that the contents of the shed posed a possible fire danger. His
decision to open the shed was likewise reasonable under the circumstances.
Entry into the cabinet was justified for the same reasons. The source of the smoke
smell was still unknown after entry into the shed and the fire captain’s concerns about the
possible presence of explosive material had not been allayed. Even if the fire captain did
not suspect that anything in the cabinet was actively burning, he could reasonably have
been concerned that as-yet unidentified smoldering material in the cabinet, shed, or
yard—or whatever ignited the initial apparent fire—might ignite the explosive materials
he reasonably suspected were present.
People v. Baird (1985) 168 Cal.App.3d 237 is distinguishable. There, the court
concluded that the exigent circumstances exception did not justify an unwarranted entry
to investigate the strong smell of ether based on the conduct of the fire marshal and other
officials, which proved that they did not believe “that the situation posed an imminent
danger and required immediate action when they decided to enter the premises.” (Id. at
p. 245.) Specifically, five hours passed between the “initial awareness of the odor and
the entry.” (Ibid.) No effort was made “to warn the occupants of the house, its
neighbors, or passersby. When the fire marshal was called, he was told not to go directly
to the house, but to contact [a police sergeant]. Instead of telephoning [the police
sergeant], the fire marshal drove to the Civic Center to meet him. Among the task force
of police officers and narcotics agents who went with the fire marshal to the house was
one officer whose task was to prevent people from fleeing from the house.” (Ibid.) No
similar evidence of delay, inaction, or complacency was presented here. To the contrary,
the responding firefighters acted with urgency.
I view People v. Duncan (1986) 42 Cal.3d 91 as more analogous. In that case, the
officer was aware that “an illicit drug laboratory was operating” in a home. (Id. at
p. 105.) Such laboratories are associated with the presence of “extremely volatile . . .
chemicals, including ether . . . .” (Ibid.) The officer did not know “whether anything was
actually being heated in the apparatus”; that is, he did not know whether there was a
potential source of ignition. (Ibid.) Our Supreme Court concluded that “substantial
evidence support[ed] the trial court’s finding that [the officer] believed exigent
circumstances existed” and that that belief and the officer’s “response thereto were
reasonable under the circumstances.” (Ibid.) Here, the fire captain was aware that
something had recently ignited, producing a large plume of smoke in the backyard.
He reasonably suspected that explosive material was present after discovering a burnt
homemade rocket device and chemistry equipment. Like the volatile chemicals in
Duncan, an unidentified ignition source in the possible presence of explosive material
“creates a dangerous environment, especially when handled unprofessionally . . . .”
(Ibid.) “On these facts it was reasonable for [the fire captain] to believe that dangerous
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[materials] were being mishandled on the premises, and to act to protect life and property
from that danger.” (Ibid.)
For these reasons, I respectfully dissent from the majority’s decision to reverse the
judgment.
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_________________________________
ELIA, J.
People v. Nunes
H046395
Trial Court: Santa Clara County Superior Court
Case No.: C1757955
Trial Judge: Hon. Socrates Peter Manoukian
Attorneys for Plaintiff/Respondent Xavier Becerra
The People: Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Catherine A. Rivlin
Supervising Deputy Attorney General
Jalem Z. Peguero
Deputy Attorney General
Attorneys for Defendant/Appellant Laurel Ellis Parker Simmons
Joseph Brook Nunes: Law Office of Laurel Simmons
Sixth District Appellate Program