California Court of Appeals, First District, Fourth Division
Mateo County Superior Court No. 16-SF-012681-A. Honorable
Steven L. Dylina and Donald J. Ayoob Trial judge
Counsel for defendant and appellant: Gordon S. Brownell,
under appointment by the Court of Appeal
Counsel for plaintiff and respondent: Xavier Becerra,
Attorney General Gerald A. Engler, Chief Assistant Attorney
General Jeffrey M. Laurence, Senior Assistant Attorney
General Catherine A. Rivlin, Supervising Deputy Attorney
General Bruce M. Slavin, Deputy Attorney General
man lives in a high crime neighborhood and somebody
discharges a firearm outside his home, may the police break
down his door and enter his apartment when he refuses to
invite them in to investigate? The Fourth Amendment answers a
resounding “no”-at least not without
circumstances, not present here, that would cause a
reasonable person to believe that someone in the apartment
stood in need of emergency aid, or that some other exception
to the warrant requirement applied. The need to render
emergency aid justifies warrantless entry only where officers
have “ ‘ “specific and articulable
facts”' ” showing that an intrusion into the
home was necessary. (People v. Ovieda (2019) 7
Cal.5th 1034, 1043 (Ovieda).) It is not enough that
officers seek to rule out “the possibility that
someone... might require aid.” (Id. at p.
principles render the warrantless search of defendant Adan
Rubio's garage apartment unconstitutional. Defendant here
appeals his conviction by plea to possession of a controlled
substance while armed with a firearm (Health & Saf. Code,
§ 11370.1), a plea entered after the trial court denied
his motion to suppress the evidence found in his apartment
(Pen. Code, § 1538.5). Because we conclude the
evidence was gathered in violation of defendant's Fourth
Amendment rights, we reverse his conviction and remand to
allow defendant to withdraw his plea.
AND PROCEDURAL BACKGROUND
October 19, 2016, at approximately 10:40 p.m., East Palo Alto
Police Department Sergeant Clint Simmont received an alert on
his “ShotSpotter” application that shots had been
fired near 2400 Gonzaga Street. The ShotSpotter system
detects and triangulates the location of gunfire via
microphones deployed throughout the city. Here ShotSpotter
notified Sergeant Simmont of two separate bursts of gunfire.
First came five rounds from the edge of the garage driveway
area of 2400 Gonzaga, then a minute later six rounds at
“the edge of the driveway, near the sidewalk.”
Sergeant Simmont testified that 2400 Gonzaga is located in a
high-crime neighborhood, and that he had responded to more
murders within a block of that location than anywhere else in
East Palo Alto.
Simmont and a team of four other officers arrived near 2400
Gonzaga Street and parked 60 to 70 feet from the edge of the
driveway. Two officers spoke with witnesses who had heard
gunfire. Pointing towards a boat in the driveway of 2400
Gonzaga, they reported they had seen flashes coming from the
other side of the boat. As the officers approached the house
with their guns out, they found a spent shell casing on the
ground at the top of the driveway, near the garage. Sergeant
Simmont believed the casing was a.45 caliber round and might
have come from a semiautomatic weapon.
one minute after the officers found the spent shell casing, a
man identified as Joshua Bazan walked through the wooden gate
of a fence that separated the front and back yards of the
house. Sergeant Simmont recognized Bazan from prior contacts
and testified that Bazan frequently drank and yelled at
police. Sergeant Simmont also knew that Bazan did not reside
at 2400 Gonzaga. As he came through the gate, Bazan began
yelling obscenities at the officers and assumed a combative
position. The officers arrested Bazan and placed him in a
Bazan's arrest, officers located two additional spent
casings behind the open gate that Bazan had passed through.
Sergeant Simmont concluded gunfire had come from near the
gate, although he could not testify from which side. Sergeant
Simmont testified that he was “investigating whether or
not we had a victim or a shooter [who] was hiding out.”
Simmont pounded loudly on a door attached to the side of the
garage and announced police presence four or five times. No
one responded, but Sergeant Simmont heard what sounded like
someone inside the garage pushing items against the door, and
he noticed that the door appeared to be flexing. Sergeant
Simmont believed someone was attempting to barricade the
door. As Sergeant Simmont was knocking on the door, a man
came to a window next to the garage and, when Sergeant
Simmont ordered him to open the door, indicated that the door
led not to the garage, but instead to a separate room.
Simmont and his colleagues spoke with several people at the
front door to the residence. When asked whether anyone in the
house had been shot, defendant's father, Francisco Rubio
Sr., responded “I don't think so.” He had
been asleep until awoken by the sound of gunfire and, getting
out of bed to investigate, had seen nobody. Sergeant Simmont
testified that he asked Francisco Sr. for permission to
search the house, which Francisco Sr. granted, but Francisco
Sr. testified that the officers never asked him for
permission to enter the house.
inside the house, officers asked Francisco Sr. who was inside
the garage, and he responded that his son was. Sergeant
Simmont then asked for permission to search the garage, and
Francisco Sr. responded, “Sure.” Attempting to
open the door from the house to the garage, Francisco Sr.
found that it was locked, but told the officers he would get
Francisco Sr. was getting the key, defendant emerged from the
garage, opening the door “just enough to slide his body
out.” Defendant closed the door, which automatically
locked behind him, and approached the officers with his hands
in his pockets, yelling for them to shoot him. Sergeant
Simmont repeatedly ordered defendant to show his hands.
Defendant eventually took his hands out of his pockets and,
as he did so, threw a key ring into the kitchen sink.
Officers detained defendant and placed him in a patrol car.
officers retrieved the key defendant had thrown into the sink
and attempted to use it to open the door to the garage. When
defendant's key did not work, Sergeant Simmont and
another officer kicked the door open and entered the garage.
Sergeant Simmont testified that he was uncertain what was on
the other side of the door and that he had no reason to
believe anyone had been shot, but he “didn't have
anything to rule that out, either.”
entering the garage, Sergeant Simmont observed that the
garage was a converted apartment. The officers did not find
anyone inside the apartment, but did observe “an
explosive device on a shelf.” The officers also found
and collected an operable.45 semiautomatic Smith & Wesson
pistol on the shelf in an open closet. Sergeant Simmont
noticed that the door he had knocked on earlier from the
outside was barricaded by furniture.
officers cleared the house of all occupants to secure the
scene. At around 5:18 a.m., a search warrant was obtained.
The officers reentered the residence and executed the
warrant. The officers found an operable.357 Smith &
Wesson handgun, twenty.40-caliber bullets, 87
live.357-caliber bullets, a body armor vest, six spent.357
Smith & Wesson shell casings, and a plastic twist-off
bindle in a shot glass with a clear, rock-like substance,
later identified as methamphetamine. Sergeant Simmont located
surveillance equipment with a view of the driveway and a
video that showed three people walking down the driveway.
Defendant is seen pulling out a revolver and ...