In this murder case, the People challenge an order granting defendant's motion to suppress forensic evidence seized from his home pursuant to a warrantless search conducted after he was arrested and the victim was declared dead. Concluding there was no exigency or consent justifying the warrantless reentry of officers after the arrest and declaration of death, the trial court suppressed such evidence, and the observations of those who gathered it. We conclude the trial court erred and grant, in part, the People's petition for writ of mandate.
At 5:05 p.m. on March 2, 2007, police officers arrived at the residence of Carl Edward Chapman in response to a call that shots had been fired in his house. A crowd of neighbors had gathered outside of the house. They were yelling that there was somebody shooting inside the house. The police gang unit arrived almost simultaneously and began getting ready to go inside the house.
Chapman was ordered out of the house, and he came out with his girlfriend, Raquel Perry. Chapman was placed in handcuffs almost immediately, and a patdown search revealed a loaded pistol magazine in his pocket with .22-caliber rounds. During the patdown search, Perry, who was screaming hysterically, said, "Help us, he shot him, he shot him," pointing to Chapman. During the patdown, in response to whether he had any weapons, Chapman kept saying, "Just help him. Help him," referring to his adult son Brian Chapman in the house.
Between two to 10 minutes after they arrived, officers conducted a protective sweep to search for suspects or victims who needed aid. It took these officers about five minutes to complete the sweep. The officers fanned out from the living room into the bedrooms and kitchen area to look for the victim or any suspects. Brian's body was found on the floor near the kitchen and laundry rooms. He had been shot and had a sledge hammer next to him.
Chapman, who was in one of the police vehicles, was transported to the police station about 5:25 p.m. About 5:45 p.m., two detectives (Porche and Phillips) arrived at the scene and were briefed by the officers standing outside the residence. Porche was advised that a shooting had occurred and a dead body was lying in the house, that Chapman was in custody, and that there were no other victims or suspects in the house.
As a result, Detectives Porche and Phillips immediately entered with one of the officers who had conducted the protective search. The officer walked the detectives through the scene. Porche saw a shell casing from a handgun in the kitchen area, strike marks on the wall or refrigerator, a handgun on the floor in the kitchen, and a dead body on the threshold between the kitchen and laundry areas. The handgun was on the kitchen floor about two feet from the body. All of these items were unobstructed and in plain view. The walkthrough took about 30 to 40 minutes. No evidence was disturbed or seized.
About 7:20 p.m., Detective Umansky arrived and walked around outside the residence. Umansky talked with the officers who had conducted the protective sweep, and they told him there had been a shooting in the house, that they had gone through the entire house and had seen bullet holes, a gun, blood in the room where the body was found, and a sledge hammer during the sweep. Umansky entered the house at 7:30 p.m. with Detective Phillips and observed the crime scene, including Brian's body, the gun, a shell casing and several bullet fragments, bullet holes, including a bullet hole in the refrigerator door, and blood on the walls of the kitchen and laundry rooms, as well as blood spots on the kitchen floor, all of which were unobstructed and in plain view.
The photographer arrived at 6:50 p.m., while criminalists arrived about 7:20 p.m. Detective Umansky left at 8:40 p.m. to interview Chapman at the police station. Three more criminalists arrived between 9:30 p.m. and 9:55 p.m. The coroner's investigator arrived at 12:35 p.m. When the coroner moved the body, a shell casing was uncovered from beneath it. Also beneath
Chapman confessed to shooting his son four times during his interview with Detective Umansky. After finishing his interview with Chapman at 12:30 a.m., Umansky went back to the house to search Chapman's car because Chapman told the detective there was another gun in the car. While there was nothing in the car, Umansky discovered another bullet fragment inside the refrigerator. Umansky later testified he did not get a search warrant because everything was in plain view.
Chapman was charged with murder, along with a personal gun use allegation (Pen. Code, former § 12022.53, subds. (b)-(d)). Conceding the entry of officers who conducted the protective sweep was valid based upon exigent circumstances and consent, Chapman moved to suppress all of the evidence observed or seized at his house by the police responders who arrived after 5:30 p.m. Chapman argued that while officers lawfully entered the house in response to an emergency, that emergency dissipated at 5:22 p.m., when Brian was pronounced dead and by 5:25 p.m., when Chapman was taken into custody, thereby necessitating a search warrant for a further entry and search. The People opposed the motion, arguing they did not need a search warrant because of exigent circumstances and Chapman's consent to enter the house. In addition, the bulk of the evidence was observed in plain view, and the evidence that was not in plain view would have inevitably been discovered by legal means anyway.
The trial court granted Chapman's motion, in part. The court concluded that all evidence observed during the "first wave" of responders (i.e., the police officers who conducted the protective sweep and the paramedics) was admissible because they were legitimately in the house due to exigent circumstances. Also not suppressed was the victim's body, including the autopsy results and a bullet fragment taken from the victim's brain, as well as photographs of the body taken at the scene by the coroners.
On the issue of consent, the trial court concluded, "The statement of Mr. Chapman goes beyond help and goes beyond him. It says, `Just help him.' It is, as far as I'm concerned, a limited consent to enter for the purpose at hand.... [R]egrettably, there was no one to help because it was clear that Brian Chapman was deceased. [¶] ... [¶] But here, there was express consent. There was express concern to undertake the original entry, but it was limited and it did not extend beyond that. It was demonstrated by conduct and words, and the words and conduct were limited. It extended, as far as I am concerned, no further than the initial wave of officers."
There were other proceedings concerning Chapman's motion to exclude his confession under Miranda,
The trial court continued the hearing to determine whether any statement made by Chapman during his interview with Detective Umansky should be excluded under the Fourth Amendment as tainted "fruit of the poisonous tree" based on questions Umansky asked relating to his own observation of the evidence (which the court had just suppressed) rather than observations of the first wave responders. (See People v. Williams (1988) 45 Cal.3d 1268, 1299-1300 [248 Cal.Rptr. 834, 756 P.2d 221] (Williams) [exclusionary rule requires suppression of evidence derived from unlawful conduct].) On May 23, 2011, the court denied this aspect of Chapman's suppression motion, with the exception of any statements he made concerning blood stains in a bedroom and a bullet hole in the dining room wall.
The People timely filed a writ petition challenging the trial court's suppression rulings of May 20 and 23, 2011. We stayed the pending trial,
The standard of review on a motion to suppress is well established. The appellate court views the record in the light most favorable to the ruling and defers to the trial court's factual findings, express or implied, when supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment. (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1130 [12 Cal.Rptr.3d 483]; see Williams, supra, 45 Cal.3d at p. 1301.) Appellate review is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling. (People v. Baker (2008) 164 Cal.App.4th 1152, 1156 [79 Cal.Rptr.3d 858].)
A consensual search may not exceed the scope of the consent given. (People v. Harwood, supra, 74 Cal.App.3d at p. 468 [consent to search for specific items does not include the right to intercept telephone calls to the premises]; People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127 [89 Cal.Rptr. 316] [consent to enter house to search for burglar suspects did not extend to search of closets to uncover crowbar]; see also People v. Cantor (2007) 149 Cal.App.4th 961, 965 [57 Cal.Rptr.3d 478] [search exceeded consent to "check" vehicle "`real quick'" where officer thoroughly searched vehicle, including trunk, under hood, and in interior several times for 15 minutes and did not find anything, but later found drugs after looking in trunk a second time and opening a container within another container].)
Also, consent to enter and search may be express or implied, and may be demonstrated by conduct as well as words. (People v. Frye (1998) 18 Cal.4th 894, 990 [77 Cal.Rptr.2d 25, 959 P.2d 183], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]; People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636, 639 [116 Cal.Rptr. 24]; People v. Wright (1957) 153 Cal.App.2d 35, 40-41 [313 P.2d 868] [defendant waived an objection to warrantless seizure of contraband when he invited officers to enter house and led them to room containing items]; see also People v. Nelson (1985) 166 Cal.App.3d 1209, 1215 [212 Cal.Rptr. 799] [a person's internal state of mind is not relevant on the issue of consent because it is the saying of the words of consent that is relevant].) Consequently, inviting police to respond to an emergency may, depending upon the circumstances, be regarded as implied consent to enter and search for suspects and victims. (See People v. Justin (1983) 140 Cal.App.3d 729, 733, 738-740 [189 Cal.Rptr. 662] (Justin); see also People v. Timms (1986) 179 Cal.App.3d 86, 92 [224 Cal.Rptr. 434].)
In Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2d 639, 100 S.Ct. 1371], the court noted that "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." (Id. at p. 587.) Police officers may seize incriminating evidence in plain view during the course of a lawful search because such a seizure "does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view . . . ." (Horton, supra, 496 U.S. at p. 141, fn. omitted.) The justification for the doctrine is "the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk—to themselves or to preservation of the evidence —of going to obtain a warrant." (Arizona v. Hicks (1987) 480 U.S. 321, 327 [94 L.Ed.2d 347, 107 S.Ct. 1149].) Also, the doctrine "reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a `needless inconvenience,' [citation], that might involve danger to the police and public." (Texas v. Brown (1983) 460 U.S. 730, 739 [75 L.Ed.2d 502, 103 S.Ct. 1535].)
Based upon these principles, the trial court properly concluded the entry, search and observations of the first wave responders were appropriate and met constitutional standards. Indeed, the parties do not dispute the first wave responders properly entered the house without a warrant based upon exigent circumstances and Chapman's consent. Therefore, their observations of evidence in plain view are properly admissible because they were validly in the home and any privacy interest in those items was lost. What the parties dispute, and the fundamental issue in this case, is whether the warrantless entry by the second wave responders was proper and thus whether their observations and seizure of the plain-view evidence were improperly suppressed. As discussed below, we believe the plain-view evidence was erroneously suppressed.
Generally, an independent justification is required for every warrantless entry by police, including those instances when the officers initially enter a residence lawfully but depart the premises and reenter later. (Justin, supra, 140 Cal.App.3d at p. 736 [subsequent entries valid only if defendant waived his privacy rights or the exigency that justified the initial entry can be extended to justify those that followed]; see also People v. Boragno (1991) 232 Cal.App.3d 378, 386 [283 Cal.Rptr. 452] (Boragno) ["no sufficient exigent circumstances to justify the second warrantless entry and seizure" as initial emergency had dissipated]; People v. Bradley (1982) 132 Cal.App.3d 737, 744 [183 Cal.Rptr. 434] [the court held the defendant regained his right to privacy when the initial emergency passed and police had left, and suppressed the evidence seized during a subsequent reentry].)
But California decisions uphold an officer's reentry to seize evidence observed in plain view during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence. For example, in People v. McDowell (1988) 46 Cal.3d 551, 564 [250 Cal.Rptr. 530, 758 P.2d 1060, 763 P.2d 1269] (McDowell), an officer reentered a residence to retrieve evidence observed in plain view while pursuing a murder suspect. The court explained: "[The officer's] initial entry revealed evidence in plain view. His departure occurred before the items were seized because his first priority was the search for the suspect who was still at large. As he left, however, [he] secured the house by instructing another officer to assure that no one entered. `Thus his physical withdrawal from the [house] did not terminate what was in legal effect an uninterrupted police presence in [the residence] . . . .' [Citation.] We do not believe [the officer] relinquished his right to seize this evidence by giving more immediate priority to defendant's arrest. We therefore conclude that [his] actions, under the particular circumstances of this case, were reasonable." (Ibid.; see also People v. Amaya (1979) 93 Cal.App.3d 424, 431 [155 Cal.Rptr. 783] [the court upheld reentry of detectives to observe and collect evidence observed in plain view about two hours earlier by the first responding officer because there was effectively an uninterrupted police presence at the residence, the officer could have seized the evidence during the original entry, and it was not unreasonable for police to wait a reasonable time for trained personnel before disturbing lawfully seizable evidence].)
In People v. Ngaue (1992) 8 Cal.App.4th 896, 901-902 [10 Cal.Rptr.2d 521], the court upheld a police reentry into a residence to retrieve a gun seen in plain view when arresting the occupant. The occupant promptly escaped from custody, and the arresting officer turned his attention to containing the
In an analogous case—Justin, supra, 140 Cal.App.3d 729—the court recognized a right of reentry involving the observation or seizure of plain-view evidence previously observed during a lawful entry that was based upon the defendant's implied consent. (Id. at p. 736.) Officers were directed to investigate a report of gunshots in a residence about 3:30 p.m. The defendant told the officers he had shot intruders in the house and let the officers in the residence. The officers did not find any intruders or blood, but did see bullet holes in several walls and doors as well as restricted drugs and paraphernalia in plain view in various locations throughout the house. At 3:40 p.m., a detective was summoned pursuant to departmental policy and he arrived immediately at the scene. After the detective was briefed of the officers' plain-view observations, they reentered the house and the officers showed the detective the items in plain view. The detective had an officer secure the residence and at 5:00 p.m. summoned a county investigator, who arrived an hour later. The investigator was advised of what had occurred and shown the contraband previously observed by the other officers. He conducted a test, which was positive for cocaine. After 20 or 30 minutes at the scene, the investigator left to obtain a search warrant. (Id. at pp. 733-734.)
On appeal, the issue was whether the subsequent entries and searches were illegal. The court concluded the defendant's invitation to enter the house was a waiver of the defendant's right to privacy in items the officers observed in plain view. The court said: "[W]e believe the most critical facts in this case are that [defendant] invited and facilitated the initial entry and that the evidence observed as a result of that entry, which is sought to be suppressed, was in plain view." (Justin, supra, 140 Cal.App.3d at pp. 738-739.) The court further held that the defendant's waiver of his right to privacy extended beyond the initial entry to the subsequent entries: "[Defendant] cannot reasonably be deemed to have exhibited any expectation of privacy with respect to items situated in plain view throughout the house into which he invited the officers who made the initial entry . . . . [Defendant's] contention that the waiver of his right to privacy does not extend beyond the initial entry of [the two officers] lacks rational foundation in Fourth Amendment jurisprudence. That is, on the facts of this case, judicial invalidation of the subsequent entries and quashing of the warrant would enforce no protection constructed by the Fourth Amendment or its California constitutional counterpart." (Id. at p. 740.)
Just as in McDowell, there is no indication of any intent by the first wave responders to abandon their right to seize the incriminating plain-view evidence by leaving the residence. To the contrary, these officers immediately secured the residence after completing the sweep by leaving Officer Lopez inside next to the body the entire time. Detectives then promptly entered to confirm the evidence that had been observed, followed by a photographer and criminalists who processed and seized it.
Even more so than in McDowell, in this case there was an actual uninterrupted police presence in the residence justifying the warrantless seizure of plain-view evidence by the second wave responders begun shortly after the initial entry. (See People v. Plane (1969) 274 Cal.App.2d 1, 5 [78 Cal.Rptr. 528] [explaining that when an officer called a sergeant to an apartment after seeing a suspected marijuana plant in plain view the "latter's appearance on the scene did not amount to an entry by the police—Officer Kitchen was already there"]; see also Duncan, supra, 42 Cal.3d at p. 99 [where initial officer's entry was justified and, after suspecting drug activity seen in plain view, he called for a supervisor, the court concluded "[t]he second officer's entry went no further than that of the first officer, and was meant only to interpret what the first officer had already seen. The second officer's entry was thus a minimal additional intrusion on the defendant's privacy"].)
Also, just as in Justin, Chapman invited the first wave responders into his residence and he therefore lost any expectation of privacy as to items observed in plain view during the search, which was within the scope of his consent, including the bullet holes in the walls, shell casings, bullets fragments, the gun, the sledge hammer, Brian's body, and the surrounding blood. The entry of the second wave responders to further observe, photograph, and collect this plain-view evidence began within minutes and was reasonable under the circumstances. As in Justin, we believe Chapman's "contention that
Our conclusion in this case is further supported by courts of many other jurisdictions that have upheld under the Fourth Amendment the warrantless reentry of a home in order to retrieve plain-view evidence previously observed during a valid and proximate entry and search.
Chapman's argument that the outcome in this case is controlled by Mincey and Thompson v. Louisiana (1984) 469 U.S. 17 [83 L.Ed.2d 246, 105 S.Ct. 409] (Thompson) is not persuasive. In Mincey, undercover police were involved in a shooting in an apartment unit. Within 10 minutes, homicide detectives descended on the scene and performed an exhaustive exploratory search that lasted four days and for which the sole justification advanced for lack of a warrant was the fact that the residence was the scene of a recent
In Thompson, the court reiterated the rule announced in Mincey that a general "`murder scene exception'" to the warrant requirement does not exist. (Thompson, supra, 469 U.S. at p. 21.) Homicide investigators conducted a "`"general exploratory search for evidence"'" after deputies had responded to a report of a homicide and searched the residence for suspects or other victims. (Id. at pp. 18-19.) The court held the warrantless search conducted by the homicide investigators did not come within any recognized exception to the warrant requirement and, therefore, violated the Fourth Amendment, as well as Mincey. (Thompson, at pp. 20-21; see also Flippo v. West Virginia (1999) 528 U.S. 11, 12, 14, fn. 2 [145 L.Ed.2d 16, 120 S.Ct. 7] [the court held warrantless search of a closed briefcase, which the trial court said was opened "`in the ordinary course of investigating a homicide,'" violated the rule announced in Mincey]; Boragno, supra, 232 Cal.App.3d at pp. 392-393 [the court held the warrantless reentry of investigators between four or five hours after the initial entry by officers (including a sweep of the apartment plus the victim's removal) and the subsequent full-scale search, which lasted 13 hours from the time of the initial entry and included opening containers and seizing other items not in plain view, was invalid under the 4th Amend.].)
The present case is distinguishable from these cases because we are not dealing with a general exploratory search of a residence, for which a warrant would be required. Rather, we are presented with an uninterrupted police presence in the residence and a close-in-time successive search of areas already validly searched in order to begin processing and collecting evidence observed in plain view.
The People also argue the minimal evidence recovered that was not in plain view (i.e., a single shell casing found beneath the victim's body after it was removed by the coroner, and a depression in the floor beneath the body) should not have been suppressed because it would have been subject to inevitable discovery. Specifically, the People contend that once the coroner took possession of the body, the shell casing and depression beneath the body would have become immediately obvious, and the coroner would have then provided them to law enforcement.
The People cite to People v. Robles (2000) 23 Cal.4th 789 [97 Cal.Rptr.2d 914, 3 P.3d 311] (Robles) to support their contention. In that case, a victim reported his car had been stolen. After police arrested the defendant, who the victim had earlier identified, an officer went to the defendant's residence, peeked through the hole of his garage, and saw a car matching the victim's license plate number. Instead of getting a warrant, the officer opened the garage door and called forensic personnel to process the car. (Id. at pp. 793-794.)
The Robles court did not apply the inevitable discovery doctrine because the People recognized that "in the absence of exigent circumstances, a police officer is required to obtain a warrant to enter a residence even if contraband is clearly displayed in a window and the officer observes the contraband from a place in which he or she has a right to be" and that "the inevitable discovery doctrine would not serve to excuse a warrantless entry of a residence under the foregoing circumstances." (Robles, supra, 23 Cal.4th at p. 801.)
The trial court in this case similarly declined to apply the inevitable discovery doctrine, concluding there was no exception to the warrant requirement and that "to excuse the application for and issuance of a court search warrant would obviate the Fourth Amendment. There is no way around it. This court is not bound by decisions of the Ninth Circuit, but they are of guidance and should be considered seriously by this court." The trial court cited U.S. v. Reilly (9th Cir. 2000) 224 F.3d 986 and U.S. v. Echegoyen (9th Cir. 1986) 799 F.2d 1271 (Echegoyen). We conclude the court erred.
Courts have indicated a reluctance to apply the inevitable discovery doctrine when a search warrant was otherwise necessary and could have been obtained, as exemplified in Robles. For example, in Hughston, supra, 168 Cal.App.4th at page 1072, the court stated, "[T]he existence of sufficient probable cause to obtain a warrant to enter . . . and search . . . legally does not justify application of the inevitable discovery exception. ([People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183,] 1215 [49 Cal.Rptr.3d 831].) A violation of the Fourth Amendment may not be disregarded `"simply because the police, had they thought about the situation more carefully, could have come up with a lawful means of achieving their desired results." [Citation.]' (Walker, at p. 1216, fn. 30; [citation]; [see also U.S. v. Reilly, supra, 224 F.3d at p.] 995 [`"to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a
Nonetheless, the People's argument in this case is not that the shell casing and depression found under the victim's body would have inevitably been discovered because they had probable cause to obtain a search warrant but failed to get one. Rather, the contention is that this evidence would have been lawfully discovered independently, i.e., by the coroner in the normal course of his legal duties. (See Gov. Code, § 27491.1 [coroner shall notify law enforcement agency regarding possible death by criminal means]; § 27491.2 [upon notification of a death, coroner shall immediately proceed to the location of the body, examine it, make inquiry into the circumstances and order its removal; it is a misdemeanor for another to move the body without permission of the coroner]; § 27491.3, subd. (b) [coroner may deliver any "property or evidence" related to the investigation or prosecution of a crime to the law enforcement agency or district attorney].)
Because there was a dead body in Chapman's residence, it is reasonable to expect the coroner would have been notified of the death, proceeded to the residence, removed the body, found the casing and depression, and then notified police according to law. Indeed, the coroner in this case was the one who moved Brian's body. It just happened that a criminalist was in the residence at the same time, and was therefore able to process the shell casing and depression found underneath it. Therefore, we agree with the People that the trial court erred in suppressing the shell casing and the casting taken of the depression.
The petition for writ of mandate is granted, in part. The trial court is directed to vacate its order of May 20, 2011, partially granting Chapman's motion to suppress and instead issue a new order denying the motion, with the exception of the bullet fragment inside the refrigerator, which was not in plain view.
The trial court is further directed to vacate that part of its order of May 23, 2011, granting Chapman's motion to suppress his statements to Detective
Our prior order staying the pending trial is vacated.
Bigelow, P. J., and Rubin, J., concurred.