California Court of Appeals, First District, Fourth Division
Cal.Rptr.3d 613] Trial court: San Mateo County Superior
Court, Trial judge: Honorable Steven L. Dylina and Donald J.
Ayoob (San Mateo County Super. Ct. No. 16-SF-012681-A)
S. Brownell, St. Helena, under appointment by the Court of
Appeal, for defendant and appellant.
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,
for plaintiff and respondent.
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 [256 Cal.Rptr.3d 614] 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, 250 Cal.Rptr.3d 754,
446 P.3d 262');">446 P.3d 262 (Ovieda ).) It is not enough that
officers seek to rule out "the possibility that someone
... might require aid." (Id. at p. 1047, 250
Cal.Rptr.3d 754, 446 P.3d 262');">446 P.3d 262.)
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.
FACTUAL 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.
Sergeant 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.
Approximately 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 patrol car.
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."
Cal.Rptr.3d 615] Sergeant 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.
Sergeant 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 the
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 ...