People v. Barefield CA5 ( 2021 )

Filed 3/25/21 P. v. Barefield CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078193
Plaintiff and Respondent,
(Kern Super. Ct. No. BF168476A)
v.
CHARLES BAREFIELD, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and Judith K. Dulcich, Judges.
Michelle T. Livecchi-Raufi and Alexandr Satanovsky, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and Nirav K. Desai, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

Judge Bush presided over the hearing on the motion to suppress; Judge Dulcich
presided over the trial.
INTRODUCTION
Appellant and defendant Charles Edwin Barefield raises one issue in this appeal,
whether the trial court erred when it partially granted and partially denied his motion to
suppress. Appellant sought suppression of three firearms which law enforcement had
recovered from both inside and outside his residence. The lower court concluded that
suppression was warranted for the firearm recovered from inside appellant’s home, but
not for the two recovered in his backyard.
We agree with appellant that he established a Fourth Amendment violation under
the United States Constitution, and suppression was warranted for all of the firearms
seized during the search. Accordingly, we reverse appellant’s judgment and remand this
matter for the trial court to vacate its prior ruling and grant the motion to suppress in its
entirety.
BACKGROUND
We summarize the procedural history and the facts from the suppression hearing.
I. Appellant Files a Motion to Suppress in the Lower Court
Appellant filed a motion to suppress pursuant to Penal Code section 1538.5.1 He
contended that police officers had violated his constitutional rights when they searched
his property without a warrant. During that search, officers had located two firearms in
his backyard and a third firearm inside his residence. Appellant asked the trial court to
suppress all items which the police had seized.
II. The Facts from the Hearing for the Motion to Suppress
The trial court conducted an evidentiary hearing to resolve appellant’s motion to
suppress. We summarize the material testimony from that hearing.
In 2017, officers of the Bakersfield Police Department were searching for a
suspect in an attempted murder case. That suspect, Carl Fite, had a warrant issued for his
1 All future statutory references are to the Penal Code unless otherwise noted.
2.
arrest, and the warrant authorized night service. Fite was a known gang member with the
Eastside Crips. The officers had pictures of Fite, along with other identifying
information and possible known addresses. The officers began searching for Fite at
various residences, but they were unable to locate him.
In searching a police database, however, officers learned that, in 2014 (three years
before these events), appellant and Fite had been together during a traffic stop. During
that stop, both appellant and Fite had informed the officer that they were from “the east
side,” which the officer had believed was a reference to the Eastside Crips. Neither
appellant nor Fite were arrested during the stop in 2014. No evidence had suggested that
the two resided together.
Based on the traffic stop three years prior, the officers decided to visit appellant’s
residence in the hopes of locating Fite. At some point “a little bit after midnight” on
May 25, 2017, a group of officers drove to appellant’s home.2 At that time, the officers
did not have any information that suggested Fite resided at appellant’s residence, and
nothing indicated that Fite had been seen at that residence. Appellant was not a suspect
in the incident that led to the arrest warrant issuing for Fite.3
Appellant’s home was located within the traditional boundary of the Eastside
Crips gang. His home sat on the corner of two residential streets in Bakersfield. When
officers arrived, two vehicles were parked in a driveway outside appellant’s house.
The officers created a perimeter around the property. Some officers set up on the
northwest side, others on the east side, and others approached the front of the residence.
2 The prosecutor represented to the trial court that the officers arrived at
appellant’s house at 12:34 a.m. The testimony during the suppression hearing was vague
regarding the number of officers involved in this search. At trial, however, it was learned
that 15 or 16 officers responded to appellant’s address on the night in question.
Appellant states that the “precise number” of officers involved in searching his property
is not necessary to resolve this claim.
3 Respondent concedes that the record does not reflect officers had information
that Fite was at appellant’s house.
3.
One of the officers, Dean Barthelmes, took a position along the east fence line on a
second driveway on appellant’s property. He was at the southeast edge of the property.
He stood outside a wooden fence that was dilapidated and about six feet high. There
were some “large gaps” between the boards. As he approached that fence, he could see
into appellant’s backyard. Barthelmes is five feet 11 inches tall. Standing on his tiptoes,
he could see over the wooden fence, and he could also see through gaps in the fence. He
did not initially see anyone in appellant’s backyard.
Another officer, Christian Hernandez, positioned himself at the northwest end of
appellant’s property near another six-foot high wooden fence. He stood on top of a brick
or concrete property divider that was about three to four feet high. He looked over the
wooden fence and he had a view of the side yard of appellant’s house.
Appellant’s backyard was partially illuminated from an interior light that emitted
light at the back of the house. In addition, one exterior light was on that was affixed to an
eave of the house. The exterior light emitted an “orange, yellowish glow” and was
pointed “towards the driveway area almost back to where [Officer Barthelmes] was
standing.”
Officers knocked on appellant’s front door. As those officers continued attempts
to contact appellant at the front door, Officer Barthelmes saw a male (later identified as
appellant) enter the backyard from the residence. Appellant walked toward the west
fence line. Barthelmes had been standing at the east fence for a “couple of minutes”
when he saw appellant. He did not see appellant’s face, and he did not know whether he
might be Fite or someone else.
When initially spotted, appellant was carrying a bag, and Barthelmes could not tell
what was in the bag. Barthelmes said, “Stop, police.” Appellant did not stop. Instead,
he continued walking “a little bit quicker towards that west fence,” and Barthelmes
believed appellant “was going to flee over it.” Barthelmes communicated over his radio
that he had a “subject in the backyard going towards the west fence.” As Barthelmes
4.
radioed this information, he heard Hernandez order appellant to stop. At that point,
appellant turned around and walked back towards the residence.
While standing on the property divider, Officer Hernandez saw appellant
“running” towards him while carrying a bag. Hernandez believed that appellant had seen
him. Specifically, appellant took several steps down the narrow pathway along the side
yard towards Hernandez, then turned and proceeded back and to the left, away from
Hernandez. Hernandez identified himself “as Bakersfield Police Department” and yelled
at appellant to stop. Appellant, however, did not stop.
Officer Barthelmes believed that appellant matched Fite’s description.4
Barthelmes tried to climb over the dilapidated fence, but it almost completely fell over.
He and another officer kicked in some of the fence boards and they entered the backyard.
Officer Hernandez also thought appellant was Fite. Hernandez “hopped the
fence,” and he entered appellant’s backyard and detained him. Appellant was face down
on a patio with his hands fanned out to the side. After appellant was handcuffed, officers
sat him up, looked at his face, and realized he was not Fite.
Within “[m]inutes” of handcuffing appellant, officers saw a bag “hanging off” the
roof of the house above the area where appellant was being detained. Officer Hernandez
(who “isn’t that tall”) got onto a patio chair and pulled the bag down. It was nylon and
was similar to a bag for a camping chair. Upon holding the bag, each officer could
immediately tell that it contained one or two firearms. They opened the bag and
discovered two pistol-grip shotguns and shotgun ammunition. Officer Barthelmes
testified that he opened the bag for “evidentiary purposes,” because “[t]hey’re weapons,
4 Appellant is African-American. He was born in 1980; he is six feet, one inch
tall; and he weighs around 170 pounds. Fite is also African-American. He was born in
1986; he is five feet eight inches tall and weighs around 135 pounds. Respondent notes
that, although the officers were shown pictures of Fite, the record does not reflect that the
officers had seen a photograph of appellant.
5.
and they could be involved or could be material evidence related to the homicide and
linked to Carl Fite.”
After appellant had been detained and the firearms seized, officers performed a
safety sweep inside the residence. They did not find anyone inside the house. However,
they located one more rifle in plain view in the laundry room.
III. The Trial Court’s Ruling
After hearing the testimony and arguments from counsel, the trial court took the
matter under submission. It subsequently issued a written ruling. In its entirety, the
ruling stated: “The motion to suppress is granted only as to any items seized inside the
house. It is denied as to items located outside the house.”5
IV. Appellant’s Convictions and Sentence
After the trial court partially granted and partially denied appellant’s motion to
suppress, this matter proceeded to a jury trial.6 Appellant was convicted of two counts of
possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 1 & 2); two counts of
prohibited possession of a firearm (§ 29805; counts 3 & 4); and one count of possession
of ammunition by a felon (§ 30305, subd. (a)(1); count 5). For counts 1, 2 and 5,
appellant was sentenced to serve concurrent one-year terms in the custody of the Kern
County Sheriff. Sentence on the remaining two convictions was stayed under section
654. Imposition of sentence was suspended, and appellant was placed on formal
probation for three years.
Prior to sentencing, appellant had filed a motion, in part, to stay execution of
judgment pending appeal. Appellant asserted that the trial court’s ruling on the motion to
5During the hearing, the trial court verbally noted that appellant had been
“clearly” and “certainly” fleeing out of the back of the residence when the officers were
there. The court also remarked that “officers can go up to anybody’s house and knock on
the door. There’s no illegalities about that. They can stand outside on a fence and look
over.”
6 We omit the trial facts, which are irrelevant to the issue raised in this appeal.
6.
suppress had been in error. The court agreed to postpone appellant’s commitment date to
serve his jail term so he would have time to file the present appeal.
DISCUSSION
The Fourth Amendment of the United States Constitution protects individuals
from “unreasonable searches” in their homes.7 (U.S. Const., 4th Amend.) “The purpose
of the Fourth Amendment is to prevent unreasonable governmental intrusions into the
privacy of one’s person, house, papers, or effects. The wrong condemned is the
unjustified governmental invasion of these areas of an individual’s life.” (United States
v. Calandra (1974) 414 U.S. 338, 354.)
A search under the Fourth Amendment occurs when the government (1) physically
intrudes on constitutionally protected areas (Florida v. Jardines (2013) 569 U.S. 1, 5
(Jardines)) or (2) “when the government violates a subjective expectation of privacy that
society recognizes as reasonable. [Citation.]” (Kyllo v. United States (2001) 533 U.S.
27, 33, citing Katz v. United States (1967) 389 U.S. 347, 361 (conc. opn. of Harlan, J.
(Katz).) The United States Supreme Court has clarified that “[a] trespass on ‘houses’ or
‘effects,’ or a Katz invasion of privacy, is not alone a search unless it is done to obtain
information; and the obtaining of information is not alone a search unless it is achieved
by such a trespass or invasion of privacy.” (United States v. Jones (2012) 565 U.S. 400,
408, fn. 5 (Jones).)
It is presumptively unreasonable for the government to conduct a search and
seizure inside a home without a warrant. (Payton v. New York (1980) 445 U.S. 573, 586.)
The curtilage – the area immediately surrounding and associated with the home – is part
of the home for Fourth Amendment purposes. (Jardines, supra, 569 U.S. at pp. 6–7.)
“When a law enforcement officer physically intrudes on the curtilage to gather evidence,
a search within the meaning of the Fourth Amendment has occurred. [Citation.] Such
7 This guarantee applies to the states through the Fourteenth Amendment of the
federal Constitution. (People v. Camacho (2000) 23 Cal.4th 824, 829.)
7.
conduct thus is presumptively unreasonable absent a warrant.” (Collins v. Virginia
(2018) ___U.S.___ [138 S.Ct. 1663, 1670.)
A criminal defendant has the initial burden to produce evidence to show a prima
facie case of an illegal search or seizure. The prosecution then bears the burden to
establish by a preponderance of evidence the facts justifying a warrantless search.
(People v. Johnson (2006) 38 Cal.4th 717, 728–729.) In reviewing the lower court’s
suppression ruling, we defer to the court’s express and implied factual findings if
supported by substantial evidence. However, we exercise our independent judgment in
determining the legality of a search. (People v. Lomax (2010) 49 Cal.4th 530, 563.)
Appellant’s leading argument is that the officers violated the “knock and talk”
exception to the warrant requirement. He relies primarily on Jardines, supra, 569 U.S. 1and U.S. v. Lundin (9th Cir. 2016) 817 F.3d 1151 (Lundin). He maintains that Lundin’s
facts are “nearly identical to this case.”
In contrast, respondent asserts that the officers did not violate the knock and talk
doctrine. Respondent further contends that officers were lawfully positioned to see
appellant’s attempt to flee from his backyard. According to respondent, the officers did
not conduct a search under the Fourth Amendment, and appellant did not enjoy a
reasonable expectation of privacy under these circumstances.
To better understand the parties’ positions, we first summarize the knock and talk
exception to the warrant requirement. We then analyze Jardines and Lundin before
turning to the respective arguments.
I. The Knock and Talk Exception to the Warrant Requirement
A number of federal and state courts use the phrase “knock and talk” to describe
law enforcement officers knocking on the door of a house, identifying themselves as
officers, asking an occupant about a criminal matter, and even requesting permission to
search the house. (People v. Rivera (2007) 41 Cal.4th 304, 310; State v. Reinier (Iowa
2001) 628 N.W.2d 460, 466; U.S. v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1109;
8.
U.S. v. Jerez (7th Cir. 1997) 108 F.3d 684, 691–692; U.S. v. Kim (3d Cir. 1994) 27 F.3d
947, 951.) A knock and talk is recognized as an exception to the federal warrant
requirement. (Lundin, supra, 817 F.3d at p. 1158; U.S. v. Perea-Rey (9th Cir. 2012) 680
F.3d 1179, 1187; Estate of Smith v. Marasco (3d Cir. 2003) 318 F.3d 497, 519.)
The United States Supreme Court holds “it is not a Fourth Amendment search to
approach the home in order to speak with the occupant, because all are invited to do that.
The mere ‘purpose of discovering information,’ [citation], in the course of engaging in
that permitted conduct does not cause it to violate the Fourth Amendment. But no one is
impliedly invited to enter the protected premises of the home in order to do nothing but
conduct a search.” (Jardines, supra, 569 U.S. at p. 9, fn. 4.) As such, a Fourth
Amendment search generally does not occur when a government officer approaches a
home to speak with an occupant. This is because an implied license exists for visitors to
approach a residence “by the front path, knock promptly, wait briefly to be received, and
then (absent invitation to linger longer) leave.” (Id. at p. 8.) Thus, an officer without a
warrant may approach a home and knock because “that is ‘no more than any private
citizen might do.’ [Citation.]” (Ibid.)
“The scope of the knock and talk exception is limited in two respects. First, it
ceases where an officer’s behavior ‘objectively reveals a purpose to conduct a search.’
[Citation.] Second, the exception is geographically limited to the front door or a ‘minor
departure’ from it. [Citation.]” (United States v. Walker (11th Cir. 2015) 799 F.3d 1361,
1363 (per curiam) (Walker).)
II. Jardines
In Jardines, law enforcement personnel without a warrant brought a drug-sniffing
dog onto the porch of a homeowner to investigate whether the dog could detect any odor
of narcotics within the residence. (Jardines, supra, 569 U.S. at pp. 3–4.) The issue
before the United States Supreme Court was whether the use of the dog constituted a
“search” within the meaning of the Fourth Amendment. (Id. at p. 3.) Justice Scalia, who
9.
wrote the majority opinion, concluded that the officer had physically intruded upon the
curtilage of the home. As such, a Fourth Amendment search had occurred. (Id. at
pp. 11–12.) Because a physical intrusion had occurred, Justice Scalia determined it was
unnecessary to decide whether the officers’ investigation of the home violated a
reasonable expectation of privacy under Katz, supra, 389 U.S. 347. (Jardines, supra, 569
U.S. at p. 11.)
In dissent, Justice Alito spoke for the remaining four justices. He concluded the
officers were no different than other members of the public who have a license to
approach the front door of a house and to remain there for a brief time.8 (Jardines, supra,569 U.S. at p. 16 (dis. opn. of Alito, J.).)
In finding that a search had occurred under the Fourth Amendment, the Jardines
majority noted that the officers had gathered information in the curtilage of the house by
physically entering and occupying the area to engage in conduct not explicitly or
implicitly permitted by the homeowner. (Jardines, supra, 569 U.S. at pp. 5–6.) The
Fourth Amendment’s protection against unreasonable governmental intrusion in the
home “would be of little practical value” if agents “could stand in a home’s porch or side
garden and trawl for evidence with impunity; the right to retreat would be significantly
diminished if the police could enter a man’s property to observe his repose from just
outside the front window.” (Id. at p. 6.)
After determining the officers’ investigation took place in a constitutionally
protected area, the Jardines majority examined whether it was accomplished through an
unlicensed physical intrusion. The majority noted that, although law enforcement
8 Justice Alito also concluded in his dissent that the majority’s opinion was
inconsistent with the test under Katz, supra, 389 U.S. 347, regarding a reasonable
expectation of privacy. According to Justice Alito, “[a] reasonable person understands
that odors emanating from a house may be detected from locations that are open to the
public, and a reasonable person will not count on the strength of those odors remaining
within the range that, while detectible by a dog, cannot be smelled by a human.”
(Jardines, supra, 569 U.S. at p. 17 (dis. opn. of Alito, J.).)
10.
officers did not need to “ ‘shield their eyes’ ” when passing a home on a public
thoroughfare, an officer’s leave to gather information “is sharply circumscribed” when he
or she enters an area protected by the Fourth Amendment.9 (Jardines, supra, 569 U.S. at
p. 7.) The majority concluded that the officers had entered the constitutionally protected
extension of the home in question, and no implied permission had existed for them to do
so. (Jardines, supra, at p. 8.)
Jardines confirmed that, based on the “implied” habits of the country, a license
exists for all persons, including law enforcement agents lacking a warrant, to knock on a
resident’s front door, wait briefly, and then leave unless invited to stay longer. (Jardines,
supra, 569 U.S. at p. 8.) However, introducing a trained police dog to explore the
curtilage exceeded that implied license. (Id. at p. 9.) “The scope of a license – express or
implied – is limited not only to a particular area but also to a specific purpose.” (Ibid.)
“[T]he background social norms that invite a visitor to the front door do not invite him
there to conduct a search.” (Ibid., fn. omitted.)
The Jardines court confirmed that the subjective intent of an officer is irrelevant
when a search is objectively reasonable. (Jardines, supra, 569 U.S. at p. 10.) However,
whether an officer’s conduct was objectively reasonable depends on whether officers had
an implied license to enter the curtilage, which turns on the purpose for which they
entered. If the behavior objectively reveals a purpose to conduct a search, then the scope
of the implied license is exceeded. (Ibid.) The majority in Jardines concluded that the
government’s use of a trained police dog to investigate the home and its curtilage
constituted a search within the meaning of the Fourth Amendment. (Id. at pp. 11–12.)
9The majority in Jardines noted that when visual observation of a home is
conducted from public navigable airspace, it must be done “ ‘in a physically nonintrusive
manner.’ [Citation.]” (Jardines, supra, 569 U.S. at p. 7, quoting California v. Ciraolo
(1986) 476 U.S. 207, 213.)
11.
III. Lundin
In Lundin, supra, 817 F.3d 1151, law enforcement agents went to the defendant’s
home at 4:00 a.m. in response to a police request to find and arrest him. The agents had
neither an arrest nor a search warrant. After knocking on the defendant’s front door,
agents heard crashing noises coming from the back of the house. The agents ran to the
back, and ordered the defendant to come out of the fenced-in backyard. The defendant
was arrested. After the defendant was placed in a patrol car, agents searched the home,
including the back patio. Two handguns were recovered in open view in the back patio.
The district court suppressed the handguns as the result of an illegal search. The
government appealed, and the Ninth Circuit Court of Appeals affirmed. (Lundin, supra,
817 F.3d at pp. 1154–1157.)
According to the Ninth Circuit in Lundin, it was undisputed that the government
had seized the two handguns during a warrantless search of the defendant’s home. As
such, the handguns were “the product of a presumptively unreasonable search.” (Lundin,
supra, 817 F.3d at p. 1157.) Consequently, to avoid suppression of the handguns, the
government bore the burden to demonstrate that either an exception to the warrant
requirement or an exception to the exclusionary rule applied. (Ibid.)
The Ninth Circuit confirmed that law enforcement officers may conduct a
warrantless search of a home when exigent circumstances exist which are so compelling
that a warrantless search is objectively reasonable under the Fourth Amendment.
(Lundin, supra, 817 F.3d at p. 1158.) “However, exigent circumstances cannot justify a
warrantless search when the police ‘create the exigency by engaging … in conduct that
violates the Fourth Amendment.’ [Citation.]” (Ibid.)
The Lundin court analyzed, and rejected, the government’s argument that the
agents had been permitted to knock on the defendant’s door under the knock and talk
exception to the warrant requirement. (Lundin, supra, 817 F.3d at p. 1158.) This
argument failed for two reasons: First, unexpected visitors are customarily expected to
12.
knock on a front door of a home “only during normal waking hours.” (Id. at p. 1159.)
The Ninth Circuit determined that the officers knocked on the defendant’s door around
4:00 a.m. without evidence that he “generally accepted visitors at that hour, and without a
reason for knocking that a resident would ordinarily accept as sufficiently weighty to
justify the disturbance. Indeed, the officers here acted for a purpose that virtually no
resident would willingly accept.” (Ibid.)
Second, the Lundin court noted that “the scope of a license is often limited to a
specific purpose, [citation], and the customary license to approach a home and knock is
generally limited to the ‘purpose of asking questions of the occupants,’ [citation].
Officers who knock on the door of a home for other purposes generally exceed the scope
of the customary license and therefore do not qualify for the ‘knock and talk’ exception.”
(Lundin, supra, 817 F.3d at p. 1159.) Lundin held that “[t]he ‘knock and talk’ exception
to the warrant requirement does not apply when officers encroach upon the curtilage of a
home with the intent to arrest the occupant. Just as ‘the background social norms that
invite a visitor to the front door do not invite him there to conduct a search,’ [citation],
those norms also do not invite a visitor there to arrest the occupant. We do not hold that
an officer may never conduct a ‘knock and talk’ when he or she has probable cause to
arrest a resident but does not have an arrest warrant. An officer does not violate the
Fourth Amendment by approaching a home at a reasonable hour and knocking on the
front door with the intent merely to ask the resident questions, even if the officer has
probable cause to arrest the resident.” (Id. at p. 1160.)
Lundin held that a Fourth Amendment violation had occurred when the agents
knocked on the defendant’s front door with the intent to arrest him. Because that
unconstitutional conduct caused the allegedly exigent circumstance – the crashing noises
in the backyard – the government could not justify the search that resulted in the seizure
13.
of the two handguns.10 (Lundin, supra, 817 F.3d at p. 1160.) The Ninth Circuit affirmed
the lower court’s order granting the defendant’s motion to suppress. (Id. at p. 1162.)
IV. Jardines And Lundin Establish a Fourth Amendment Violation in this Matter
The parties dispute whether the police violated the knock and talk doctrine.
According to appellant, the officers exceeded their implied license to approach his house.
He asserts we should apply Jardines and Lundin. In contrast, respondent claims that
Jardines and Lundin are factually distinguishable, and respondent notes that Lundin is not
binding on this court.
The parties also disagree whether a constitutional violation occurred because this
police encounter happened after midnight. Appellant asserts that this alone establishes a
violation of the Fourth Amendment because a reasonable homeowner does not grant an
implied license for people to approach his door at such a late hour. On the other hand,
respondent claims it was reasonable for the officers to conduct the knock and talk after
midnight. Respondent notes that, when the officers approached appellant’s residence,
two vehicles were parked in his driveway, and an interior light was on at the back of the
house.
Although the facts from this matter are distinguishable from the unique
circumstances in Jardines, we agree with appellant that the legal principles articulated in
Jardines control here. In Jardines, the majority and dissenting opinions discussed in
dicta when a knock and talk may occur. In his dissent, Justice Alito noted that, “as a
general matter, … a visitor [may not] come to the front door in the middle of the night
without an express invitation. [Citation.]” (Jardines, supra, 569 U.S. at p. 20 (dis. opn.
of Alito, J.). In response, the majority reasoned that the dissent “quite rightly” relied on
the fact that a nighttime knock would be alarming in concluding that nighttime visits
The Lundin court also analyzed and rejected the government’s arguments that
10
both a “protective sweep” and “inevitable discovery” justified the warrantless search.
(Lundin, supra, 817 F.3d at pp. 1161–1162.)
14.
would be outside the scope of an implied license. (Id. at p. 9, fn. 3 [“We think a typical
person would find it ‘ “a cause for great alarm” ’ (the kind of reaction the dissent quite
rightly relies upon to justify its no-night-visits rule, [citation]) to find a stranger snooping
about his front porch with or without a dog.”].)
Based on these various comments appearing in Jardines, it is apparent that the
United States Supreme Court agrees a nighttime visit would typically be outside the
scope of any implied license for any citizen, including police officers, to approach the
front door of a residence. Moreover, the Ninth Circuit in Lundin held that a knock and
talk should usually occur “only during normal waking hours.” (Lundin, supra, 817 F.3d
at p. 1159.) Although Lundin is not binding on this court, it is instructive regarding the
knock and talk doctrine under federal law. (See People v. Brooks (2017) 3 Cal.5th 1, 90
[“We are not bound by the decisions of the federal appellate courts, although they may be
considered for their persuasive weight”].)
We reject respondent’s assertion that it was reasonable for the officers to conduct
this knock and talk after midnight. The officers did not have a warrant to either arrest
appellant or search his residence. Appellant was not a suspect in the criminal matter that
led to an arrest warrant issuing for Fite. The officers had no information that Fite was at
appellant’s residence. Appellant’s last known contact with Fite occurred three years
prior. During the suppression hearing, Officer Barthelmes confirmed that he did not
know if appellant regularly accepted visitors at his house at midnight.
Nothing from this record reasonably demonstrates that appellant was accepting
visitors at such a late hour when the officers initiated this knock and talk. Although two
vehicles were parked in appellant’s driveway and his backyard was partially illuminated
from an interior light that emitted light at the back of the house, there was no evidence
that officers saw anyone moving inside or outside the residence. The evidence did not
reasonably suggest someone was awake. Under these circumstances, we agree with
15.
appellant that the officers deviated from the implied license acceptable for any citizen to
invade appellant’s curtilage at that time of night.
A Fourth Amendment search, however, requires more than a mere trespass on a
constitutionally protected area (or a Katz invasion of privacy). Instead, such an invasion
must be coupled with an intent to obtain information. (Jones, supra, 565 U.S. at p. 408,
fn. 5.) Respondent contends that nothing reflects an intent by the officers to conduct a
search or gather evidence at appellant’s front door. According to respondent, Jardines is
distinguishable for that reason. Respondent also claims that the officers “did no more
than what an ordinary visitor would do.” We reject these assertions.
This record establishes that the officers held an intent to gather information or
discover evidence when this knock and talk occurred. Officers Hernandez and
Barthelmes made it clear that the officers went to appellant’s home because they had an
arrest warrant for Fite, and they were actively looking for him. They had been looking
for Fite for about seven hours that night, and they had already visited several other
locations, including residences. According to Barthelmes, the “whole purpose” of going
to appellant’s residence “was to try and find” [Fite].” Before officers knocked on
appellant’s front door, other officers surrounded his property and began visually
inspecting his backyard. Under these circumstances, a search within the meaning of the
Fourth Amendment occurred because the government invaded appellant’s curtilage while
attempting to obtain information or evidence. (See Jardines, supra, 569 U.S. at p. 5 [a
Fourth Amendment search occurs when the government physically intrudes on
constitutionally protected areas]; Jones, supra, 565 U.S. at p. 408, fn. 5 [a trespass on a
protected area is not a search unless it is done to obtain information].) The officers did
far more than what an ordinary visitor would do, especially in the middle of the night.
We agree with appellant that the facts from this matter are very similar to Lundin.
The officers knocked on appellant’s door after midnight without evidence that he
“generally accepted visitors at that hour, and without a reason for knocking that a resident
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would ordinarily accept as sufficiently weighty to justify the disturbance. Indeed, the
officers here acted for a purpose that virtually no resident would willingly accept.”
(Lundin, supra, 817 F.3d at p. 1159.) The background social norms that invite a visitor to
the front door do not invite him there to conduct a search. (Id. at p. 1160.)
According to respondent, however, the attempted knock and talk should be viewed
separately from the officers who looked over and through appellant’s fence and into his
backyard. Respondent asserts that appellant did not enjoy a reasonable expectation of
privacy in his backyard. Respondent also contends that the officers positioned along the
backyard were merely “lookouts” who secured the area during the attempted contact at
the front door. Respondent notes that a constitutional violation does not occur when an
officer observes something with the naked eye from a vantage point open to the public.
Respondent emphasizes that a Fourth Amendment violation does not occur when a
person “knowingly exposes” something to the public, even in his own home.11
We disagree with respondent that our analysis should separate the conduct of the
officers who positioned themselves along appellant’s fence from the overall knock and
talk that occurred. The officers acted as a unit. Some officers went to appellant’s front
door while other officers surrounded his property and began to search his backyard over
and through his fences. Collectively, the officers did more than merely approach
appellant’s residence “by the front path, knock promptly, wait briefly to be received, and
then (absent invitation to linger longer) leave.” (Jardines, supra, 569 U.S. at p. 8.) The
officers’ behavior objectively demonstrated an intent to conduct a search and the officers
11We agree with respondent that “[a]n officer’s observation with the naked eye
from a vantage point open to the public is ordinarily not regarded as a search within the
meaning of the constitutional proscription against warrantless searches. [Citations.]”
(People v. Edelbacher (1989) 47 Cal.3d 983, 1015.) Moreover, “ ‘[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection.’ [Citation.]” (Ibid., quoting Katz, supra, 389 U.S. at
p. 351.)
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did not limit themselves to approaching appellant’s front door. The scope of a
permissible knock and talk was exceeded. (See Walker, supra, 799 F.3d at p. 1363.)
Justice Scalia instructed that we do not reach the issue of reasonable expectation
of privacy under Katz if a physical intrusion, coupled with an intent to gather
information, has occurred involving a constitutionally protected area. (Jardines, supra,569 U.S. at pp. 5, 11.) “The Katz reasonable-expectations test ‘has been added to, not
substituted for,’ the traditional property-based understanding of the Fourth Amendment,
and so is unnecessary to consider when the government gains evidence by physically
intruding on constitutionally protected areas. [Citation.]” (Jardines, supra, 569 U.S. at
p. 11.) The Jardines majority stated that “[o]ne virtue of the Fourth Amendments
property-rights baseline is that it keeps easy cases easy. That the officers learned what
they learned only by physically intruding on Jardines’ property to gather evidence is
enough to establish that a search occurred.” (Ibid.)
Here, officers spotted appellant in his own backyard only because they conducted
a knock and talk after midnight with the intent to find Fite. The officers did not attempt
to contact appellant during normal waking hours. The officers did not limit their
movements to an area near and around appellant’s front door. This intrusion at an
unreasonable hour of the night was neither expressly nor impliedly permitted. Based on
Jardines and Lundin, we agree with appellant that a Fourth Amendment violation
occurred under these circumstances.12
Respondent emphasizes that the officers held a mistaken but honest belief they
were pursuing Fite. Respondent contends the officers “reasonably suspected criminal
activity” once appellant refused their commands to stop. Respondent alternatively claims
12In his motion to suppress before the trial court, appellant cited Jardines and
Lundin. During oral arguments at the hearing regarding appellant’s motion to suppress,
defense counsel argued, in part, that a federal constitutional violation had occurred
because the officers violated the knock and talk exception to the warrant requirement.
Defense counsel specifically directed the trial court’s attention to Lundin.
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that appellant’s flight in his backyard represented an exigent circumstance which justified
his seizure.
We reject these arguments. The subjective intent of an officer is irrelevant when a
search is objectively reasonable. (Jardines, supra, 569 U.S. at p. 10.) However, the
objective reasonableness of an officer’s conduct depends on whether the officer held an
implied license to enter the curtilage, which turns on the purpose for which he or she
entered. If the behavior objectively reveals a purpose to conduct a search, then the scope
of the implied license is exceeded. (Ibid.)
In this matter, officers entered appellant’s property after midnight with the intent
to find Fite. Some of the officers approached appellant’s curtilage at his front door while
other officers spread out around his property and began looking into his backyard.
Whether or not the officers made a reasonable mistake in believing appellant was Fite,
the Fourth Amendment violation in this matter occurred even before the officers spotted
appellant. The officers did not have an implied license under these circumstances to
disturb appellant inside his residence at that hour. (See Jardines, supra, 569 U.S. at p. 5.)
Similar to Lundin, the improper knock and talk was the very reason why appellant
went into his backyard only to be spotted by officers who had positioned themselves
around the perimeter of his property. The government cannot justify a Fourth
Amendment search and seizure in this situation because it created the alleged exigent
circumstance. (See Kentucky v. King (2011) 563 U.S. 452, 462 [if police do not create an
exigency then warrantless entry to prevent the destruction of evidence is reasonable and
allowed]; Lundin, supra, 817 F.3d at p. 1160 [officers’ unconstitutional conduct caused
alleged exigent circumstance so search resulting in seizure of handguns was improper].)
We decline respondent’s invitation to find Lundin distinguishable.
To overcome the holding in Lundin, respondent offers a competing federal
appellate case. In Walker, supra, 799 F.3d 1361, the Eleventh Circuit Court of Appeals
held that officers did not violate Jardines when they conducted a series of knock and
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talks. The officers were searching for a suspect who had an outstanding warrant. The
officers believed the suspect could be found at another person’s residence. At about 9:00
p.m., the officers knocked at that residence, but no one answered. They left and returned
at 11:00 p.m., and again no one answered their knocks. A Honda Civic was parked in an
open-sided carport, and the vehicle had not been there earlier. The following morning, at
about 5:00 a.m., the officers drove past the residence and they spotted some house lights
on. In addition, an interior light was on inside the Honda Civic, and a person was seen
“with his head resting on the steering wheel.” (Walker, supra, 799 F.3d at p. 1362.) The
officers contacted the person in the vehicle, who was the homeowner. The officers told
him that they were looking for the suspect. The owner said the suspect was not at the
house and the officers were invited to search the residence. Upon entering, the officers
did not find the suspect, but they discovered counterfeit currency. The homeowner was
arrested. (Id. at pp. 1362–1363.)
The Walker court held that the officers did not exceed the scope of the knock and
talk exception to the warrant requirement. First, their behavior did not objectively reveal
a purpose to search. Instead, the officers were merely trying to talk to someone to discuss
the whereabouts of the suspect. (Walker, supra, 799 F.3d at p. 1363.) Second,
approaching the parked Honda Civic inside the open-sided carport did not exceed the
geographic limit of a knock and talk exception. (Id. at p. 1364.) Finally, the Eleventh
Circuit determined that the encounter before sunrise did not exceed the implied invitation
that underlies a knock and talk. Instead, it was “not unreasonable” to believe someone
was inside the parked Honda Civic because its interior light was on. In addition, lights
were on inside the house. As such, it was reasonable that the officers approached the
vehicle, tapped on a window, and spoke with the homeowner. Walker found no Fourth
Amendment violation. (Ibid.)
We decline to follow Walker, which is distinguishable. The officers in Walker
demonstrated an intent not to search the property but to contact the homeowner in order
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to discuss a suspect’s whereabouts. Although the contact did not occur during normal
waking hours, the homeowner had been spotted outside in a parked vehicle. The officers
only had a minor deviation from the homeowner’s front porch. In contrast to Walker, the
officers in this matter initiated a knock and talk after midnight without any reasonable
evidence that appellant was awake and/or accepting visitors at that hour. While officers
went to appellant’s front door, other officers surrounded his property and began peering
through and over his fence into his backyard. The officers never obtained appellant’s
permission to search the premises. It was the improper knock and talk that caused
appellant to enter his backyard, which led to his arrest. Walker is inapposite.
The totality of the circumstances establishes an unreasonable governmental
intrusion. The officers entered appellant’s curtilage with the intent to gather information.
This intrusion was neither explicitly not implicitly permitted. (See Jardines, supra, 569
U.S. at pp. 5–6.) Accordingly, a Fourth Amendment violation occurred, and we turn to
the remedy.
V. The Exclusionary Rule is Appropriate in this Situation
Appellant argues that the improper police conduct led directly to the seizure of his
firearms. He contends that all of his firearms should have been suppressed under the
exclusionary rule. In contrast, respondent asserts that, if the officers violated the Fourth
Amendment, their conduct does not warrant suppressing the two firearms recovered in
the bag outside. According to respondent, this record does not suggest “systemic
negligence.” Respondent emphasizes that the officers acted in good faith, and they had
reason to believe it was necessary to enter appellant’s backyard to detain “a potentially
dangerous suspect who was trying to escape into the night.” Respondent maintains that
the officers did not act with “a deliberate, reckless, or grossly negligent disregard for the
Fourth Amendment.” However, respondent concedes that, if the trial court erred by not
suppressing the seized evidence and if the exclusionary rule applies, then the government
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cannot show that the error was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, 24.
We agree with appellant that the exclusionary rule is appropriate in this situation.
This rule is “a judicially created means of deterring illegal searches and seizures.
[Citation.]” (Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357,
363.) The United States Supreme Court recognizes certain exceptions to the exclusionary
rule. Those include (1) the independent source doctrine; (2) the inevitable discovery
doctrine; and (3) the attenuation doctrine. (Utah v. Strieff (2016) ___U.S.___ [136 S.Ct.
2056, 2061].) Under the attenuation doctrine, evidence is admissible when the
connection between unconstitutional police conduct and the evidence is remote or has
been interrupted by some intervening circumstance. (Ibid.) Under those circumstances,
the interests protected by the Fourth Amendment would not be served by suppression of
the evidence. (Ibid.)
In this matter, the connection between the unconstitutional police conduct and the
seizure of appellant’s firearms was neither remote nor interrupted by intervening
circumstances. Instead, police seized appellant and his firearms only because they
conducted a knock and talk in excess of the limitations set forth by the United States
Supreme Court. It was the improper police conduct which caused appellant to leave his
residence and enter his backyard. As such, all of the firearms seized during this incident
should have been suppressed. Accordingly, the trial court erred in failing to grant
appellant’s motion to suppress in its entirety. We will reverse his judgment and direct the
court to grant the motion in its entirety.13
DISPOSITION
The judgment is reversed and the convictions are vacated. This matter is
remanded with directions for the trial court to vacate its prior ruling and grant appellant’s
13 In light of our holding, we need not reach appellant’s remaining claims.
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motion to suppress in its entirety. The court shall conduct further proceedings as
necessary.
POOCHIGIAN, Acting P.J.
WE CONCUR:
DETJEN, J.
PEÑA, J.
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