Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08CF1799, John Conley, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Mario Flores moved to suppress evidence obtained after a warrantless search of his apartment. The motion was denied, Flores pled guilty, and now he appeals. The search and seizure were reasonable because exigent circumstances justified the warrantless entry into defendant’s apartment. Therefore, we affirm the judgment.
Statement of Facts and Procedural History
On June 13, 2008, at about 1:00 a.m., Santa Ana Police Officer Gabriel Esparza and his training partner Ponce DeLeon responded to a domestic violence report. Esparza and DeLeon contacted the victim, Lupe Ceja, who was at the gas station pay phone from which she had called the police. Ceja told Esparza she and her boyfriend, defendant, had had an argument about 20 minutes earlier at his apartment. During the argument, defendant grabbed Ceja by the throat, pulled her hair, and pointed a handgun at her face. Ceja “ran down the stairs to get away from him.” She assumed defendant went back inside the apartment, but did not know whether he actually did. Ceja told Esparza she believed defendant was a member of the “Los Compadres” street gang.
About 20 minutes later, or 40 minutes after the argument between defendant and Ceja, Esparza, DeLeon, and three or four other officers approached defendant’s apartment with their guns drawn. Esparza knocked on the door; an older man and woman answered the door and told Esparza defendant was inside. Esparza and two other officers began to search the apartment for defendant. Esparza knocked on a closed bedroom door and announced his presence; an older man and two children exited the bedroom. Esparza located defendant hiding in a closet in the bedroom. He handcuffed defendant and took him to the living room. Esparza then searched the bedroom; a magazine loaded with five rounds of ammunition was found on the floor near where defendant had been hiding. Esparza read defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436, and asked whether he had a gun. Defendant offered to tell Esparza where the gun was located if he agreed not to arrest defendant’s friends. Defendant then showed Esparza where the gun was located under the bed.
In response to additional questions by Esparza, defendant stated he carried the gun for protection, and admitted “kick[ing] it with the Los Comps.” He admitted pointing the gun at Ceja, but said he was not going to shoot her.
Defendant was charged in an information with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1) [count 1]); street terrorism (id., § 186.22, subd. (a) [count 2]); and brandishing a firearm (id., § 417, subd. (a)(2)(B) [count 3]). (All further statutory references are to the Penal Code.) The information alleged a gang enhancement in connection with count 1 (§ 186.22, subd. (b)(1)).
Defendant moved to suppress the gun, ammunition, and his statements to Esparza, pursuant to section 1538.5. Following a hearing, the trial court denied the motion.
Defendant then pled guilty to counts 1, 2, and 3, and admitted the gang enhancement. The trial court sentenced defendant to the low term of 16 months on count 1, and a concurrent low term of 16 months on count 2. Imposition of sentence on count 3 was suspended, and the gang enhancement was stricken for sentencing purposes. Defendant timely appealed.
Discussion
“In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
The parties agree that the police officers entered defendant’s apartment without a warrant, and the evidence obtained was the fruit of the warrantless entry. The Fourth Amendment to the United States Constitution generally prohibits warrantless searches and arrests. However, peace officers may legally enter a residence without a warrant when there are exigent circumstances. (Payton v. New York (1980) 445 U.S. 573, 588-590; Warden, Maryland Penitentiary v. Hayden (1967) 387 U.S. 294, 298.) “‘A long-recognized exception to the warrant requirement exists when “exigent circumstances” make necessary the conduct of a warrantless search.... “‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”’ [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 465.) “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ [Citation.]” (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404.)
In this case, the trial court made the following factual findings: “The court does feel this is a hot pursuit case. The case law has indicated even though we traditionally think of hot pursuit as the officer running after the suspect, it’s been extended to 45 minute delays in [People v.] Escudero [(1979) 23 Cal.3d 800 (Escudero)], 75 minutes in [People v.] Johnson [(1981) 30 Cal.3d 444 (Johnson)]. [¶] And the officer arrives at the gas station on 4th and Grand, gets the information, is at the house 20 minutes later. The total delay from the event is about 40 minutes. It’s a serious charge. Luckily nothing happened, but it’s a serious charge with the gun. Eventually I guess according to the briefs the gun was found to be loaded. So, serious charge, continuous effort by the law enforcement authorities to get the culprit. Danger to the public and danger of escape. [¶] You know, I guess it’s a great luxury to think well, they could have had the whole apartment surrounded and called out the magistrate at one in the morning and gotten a warrant. That probably would have taken a long time. I think it is hot pursuit.... So, the motion under [section] 1538.5 is denied.”
Among the factors to be considered in determining whether exigent circumstances justify a search or an arrest in the absence of a warrant are the following: the gravity of the offense involved; whether the suspect is reasonably believed to be armed; whether there is a clear showing of probable cause that the suspect committed the crime; whether there is a strong reason to believe the suspect is in or on the premises being entered; the likelihood that the suspect will escape if not promptly arrested; whether the entry was nevertheless made peacefully; and whether the entry was made at night. (Dorman v. United States (D.C. Cir. 1970) 435 F.2d 385, 392 393; People v. Bacigalupo (1991) 1 Cal.4th 103, 122, judg. vacated and cause remanded on other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802, reaffd. People v. Bacigalupo (1993) 6 Cal.4th 457; People v. Williams (1989) 48 Cal.3d 1112, 1138-1139.)
In exercising our independent judgment regarding the totality of the circumstances, we conclude the police officers’ entry into defendant’s apartment was justified due to exigent circumstances. Defendant’s assault on Ceja, including pointing a loaded gun in her face, is a serious crime. Defendant was known to be armed. Ceja’s statements to Esparza provided probable cause that defendant had committed the crime. The officers had a strong reason to believe defendant was on the premises, both because of Ceja’s statements and because the man and woman who opened the apartment door said defendant was inside. The entry appears to have been made peaceably, despite the fact the officers’ guns were drawn; the officers knocked on the outside and inner doors and waited for them to be opened from the inside. (State v. Wolters (Wash.Ct.App. 2006) 135 P.3d 562, 565 [officer peaceably entered the defendant’s house to arrest him, although the officer pointed his gun at the defendant because he believed the defendant “may have been armed”]; see Dorman v. United States, supra, 435 F.2d at p. 393, and cases cited therein [contrasting peaceable entry with forcible entry].)
Defendant may or may not have tried to escape if not promptly arrested; he had apparently gone back in the apartment after Ceja left. Although the entry occurred at night, the cases explain that factor can be used either to demonstrate the impracticality of obtaining a warrant or the lack of reasonableness of the entry. (Dorman v. United States, supra, 435 F.2d at p. 393.)
The relevant cases support our conclusion. In Escudero, supra, 23 Cal.3d 800, the Supreme Court affirmed the denial of a motion to suppress evidence obtained in connection with a warrantless arrest. The defendant had been discovered in the act of burglarizing a home; a witness who had been chasing the defendant, but lost sight of him, obtained the defendant’s address from the registration card in his abandoned vehicle. (Id. at pp. 804-805.) About one hour after the defendant left the scene of the burglary, six sheriff’s deputies entered the defendant’s residence without a warrant and arrested him. (Id. at pp. 805-806.) Under these circumstances, the Supreme Court concluded the deputies’ failure to obtain a warrant was justified because they were in “‘hot pursuit’” of the defendant. (Id. at p. 808.) “[A]lthough ‘fresh pursuit’ of a fleeing felon must be substantially continuous and afford the law enforcement authorities no reasonable opportunity to obtain a warrant, it is not necessary that the suspect be kept physically in view at all times. They also refute defendant’s contention that his presence at the ranch negated any inference of flight because if he were truly attempting to escape it is ‘unlikely’ he would have returned to his house after the burglary. Finally, the cases are not distinguishable on the ground, urged by defendant, that the officers herein assertedly had no reason to believe he was armed and dangerous. Throughout the events in question the police were pursuing a man whom they suspected of having broken into an occupied private home in the middle of the night to commit a burglary; this is a serious crime, with an ever present potential for exploding into violent confrontation. The need to prevent the imminent escape of such an offender is clearly an exigent circumstance within the doctrine here invoked.” (Id. at pp. 810 811, fns. omitted.)
The Supreme Court cautioned, however, that the hot pursuit exception to the Fourth Amendment must not be expanded too dramatically. “As with all exceptions to the warrant requirement, the courts must ever be on their guard to keep the ‘hot pursuit’ justification within firm and narrow bounds: ‘the exception must not be permitted to swallow the rule’ [citation]. On the record before us, however, we are persuaded the warrantless arrest of defendant inside his house was fully justified on this ground. It follows that the trial court correctly denied defendant’s motion to suppress the evidence seized as an incident thereto.” (Escudero, supra, 23 Cal.3d at p. 811.)
In Johnson, supra, 30 Cal.3d at page 447, the defendant exchanged angry words with the victim, while the defendant was inside his own car and the victim was standing outside. The defendant then shot the victim, and drove away. (Ibid.) The police found the defendant’s car at the home of the defendant’s father; both live and spent cartridges were found in the car, although no gun was found. (Ibid.) The defendant’s father directed the police to the home of the defendant’s girlfriend. (Ibid.) The police entered the home without a warrant, and arrested the defendant, who was lying about six feet from a loaded firearm. (Ibid.) The Supreme Court affirmed the denial of a motion to suppress evidence obtained from the warrantless search of the defendant’s car, and the warrantless arrest of the defendant within his girlfriend’s home. As to the search of the car, the court held, “the warrantless search was justified by the three grounds of exigency which we identify as: (1) police pursuit of an armed and dangerous suspect [citation]; (2) the danger posed to the officers and public at large by the possibility that a weapon remained in the car; and (3) the danger of removal or loss of the evidence from the vehicle.” (Id. at p. 451.) As to the warrantless entry to arrest the defendant, the Johnson court quoted from and relied on Escudero in concluding the entry was justified by exigent circumstances. (Johnson, supra, 30 Cal.3d at p. 452.) “Here, the officers were in expeditious pursuit which was continuous and direct. [¶] Moreover, as we have stated, defendant was suspected of a violent offense involving the repeated discharge of a firearm. Exigent circumstances validating a defendant’s arrest within a dwelling may be deemed to exist when there is a ‘likelihood that one of the suspects may have been an armed killer [citation].’ [Citation.] Defendant does not argue that the officers did not have probable cause to enter [the girlfriend]’s house, but that the entry should have occurred only after issuance of a warrant because of an absence of exigency. [¶] Under the circumstances, we conclude that the officers were fully justified in entering the dwelling to arrest defendant, and we affirm the trial court’s denial of the motion to suppress the evidence found in the home.” (Id. at pp. 452-453.)
In People v. White (1986) 183 Cal.App.3d 1199, 1201-1202, the defendant raped the victim in his house, then ordered her to leave. The victim began screaming, and the defendant got in his car and drove away. (Id. at p. 1202.) The victim walked to a telephone booth, and called the police. (Ibid.) The victim told the police officer she had been raped, provided him with a description of the defendant and the address of the defendant’s house, and told the officer the defendant “had driven away in his car.” (Ibid.) The officer drove to the defendant’s house, but did not see the defendant’s car. (Ibid.) Two young men at the front door told the officer the defendant was not there. (Ibid.) The police officer nevertheless entered the house, and discovered bloodstained sheets matching the description provided by the victim. (Ibid.)
The appellate court concluded the police officer was in “‘hot pursuit’” of the defendant. “Here the victim was only a half-block away from the crime scene. Moreover, it was a half-hour to an hour after the crime’s commission when she described the defendant and the officers took off after him. Only minutes later the officers arrived at and entered White’s house. This is well within the life span of a ‘hot pursuit’ as established by the California Supreme Court.” (People v. White, supra, 183 Cal.App.3d at p. 1204.) The appellate court, however, concluded the police officers did not have an objectively reasonable belief that the defendant was in his house, because the victim stated the defendant had driven away, the defendant’s car was not at the house when the police arrived, and the occupants of the house stated the defendant was not there. (Id. at p. 1206.) These facts distinguish White from the present case, because Ceja assumed defendant went back into his apartment after assaulting her, and certainly did not tell Esparza that defendant drove away; the people opening the door to the apartment told the police that defendant was in the apartment; and the police had no objective evidence that defendant was not present when they entered the apartment.
Welsh v. Wisconsin (1984) 466 U.S. 740, on which defendant relies, is distinguishable. In that case, the United States Supreme Court concluded a warrantless nighttime entry into the petitioner’s home to arrest him violated the Fourth Amendment to the United States Constitution, and therefore vacated the judgment of conviction. (Welsh v. Wisconsin, supra, at p. 754.) The primary factors relied on by the Court were the lack of gravity of the crime committed by the petitioner-driving while intoxicated, which the state of Wisconsin had classified as a noncriminal, civil forfeiture offense for which imprisonment was not permitted-and the lack of any threat to public safety posed by the petitioner, who had abandoned his car and walked home. (Id. at pp. 753-754.) By contrast, in the present case defendant had assaulted Ceja and pointed a loaded gun at her face. It was objectively reasonable to believe defendant still had the loaded gun inside the apartment, which was also occupied by several other individuals, including children. The police also had reason to believe defendant was a gang member. The gravity of the crime was significant, and defendant posed a real, continuing threat to public safety.
Disposition
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.