People v. Duncan

BIRD, C. J.

I concur in the majority opinion with the understanding that it does not undermine the established principle that exigent circumstances normally circumscribe the scope of a warrantless search.

The majority imply that dealing with an exigency need not be the “primary” motive of officers who enter a home without a warrant, since “[i]t is unreasonable to expect an officer to be unconcerned with the collection of evidence and the capture of criminals.” (Maj. opn., ante, at pp. 104.) This language should not be read to mean that the scope of the search may be dictated by these latter motives.

The law is clear". The scope of a search based on exigent circumstances, excusing the need to comply with the warrant requirement, must be narrowly circumscribed to minimize the intrusion upon the privacy of a home. (See People v. Block (1971) 6 Cal.3d 239, 244 [103 Cal.Rptr. 281, 499 P.2d 961]; People v. Roberts (1956) 47 Cal.2d 374, 378-379 [303 P.2d 721]; People v. Dickson (1983) 144 Cal.App.3d 1046, 1063-1064 [192 Cal.Rptr. 897], and cases cited.) As I read the majority opinion, it holds nothing more than that Officer Gremminger did not exceed the scope of a permissible exigent-circumstances search when he took photographs in the course of determining the volatility of the potentially explosive laboratory. Had he extended his search to other rooms for purposes of “collecting] . . . evidence and . . . captur[ing] . . . criminals” (maj. opn., ante, at p. 104), and assuming such an extension was not required by the exigency, this court would invalidate the search since the basis for the warrantless intrusion would have ceased to exist.

The majority’s admonition that an officer must not “act in a manner inconsistent with a motive to preserve life or property” (maj. opn., ante, at p. 104) merely restates the principle that an invasion of privacy may not extend any farther than what is required by the emergency at hand. Any act which extends a search beyond that which is necessary to deal with the immediate emergency is “inconsistent” with that purpose and prohibited.

With these concerns allayed, I concur in today’s judgment.

Reynoso, J., concurred.

Appellants’ petition for a rehearing was denied August 28, 1986.