Police need a warrant to enter a home when shots are fired in a high crime area

THE PEOPLE, Plaintiff and Respondent, v. ADAN RUBIO, Defendant and Appellant. (Cal. Ct. App., Dec. 12, 2019, No. A152455) 2019 WL 6797405

Summary: Police may not break down a door and enter an apartment when the owner refuses to invite them in to investigate after shots were fired in a high crime neighborhood.  The Fourth Amendment requires circumstances 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. 1047.)

Adan Rubio’s appealed 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).1 The Court of Appeal concluded that the evidence was gathered in violation of his Fourth Amendment rights. The Court reversed his conviction and remanded to allow defendant to withdraw his plea.


On October 19, 2016, 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 detects and triangulates the location of gunfire via microphones deployed throughout the city. ShotSpotter notified Sergeant Simmont of two separate bursts of gunfire. Five rounds came from the edge of the garage driveway area of 2400 Gonzaga. A minute later came six rounds at “the edge of the driveway, near the sidewalk.” Sergeant Simmont testified that 2400 Gonzaga is located in a high-crime neighborhood, with the most murders within a block of that location than anywhere else in East Palo Alto.

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.”

Forced entry into the Rubio’s garage apartment

Rubio emerged from the garage, opening the door “just enough to slide his body out.” Officers detained Rubio and placed him in a patrol car. Sergeant Simmont and another officer kicked the door open and entered the garage

Upon 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 ,a .45 semiautomatic Smith & Wesson pistol and other weapons in the apartment.

Motion to suppress in the trial court denied because of community caretaking exception

Rubio filed a motion to suppress evidence. The prosecution argued that the warrantless entry into defendant’s garage was justified under community caretaking, emergency aid, exigent circumstances, and consent. The magistrate noted that it was “a very close case” but, citing People v. Ray (1999) 21 Cal.4th 464 (Ray), disapproved in part in Ovieda, supra, 7 Cal.5th at p. 1038, denied the motion on the theory that the search satisfied the community caretaking exception.

Rubio renewed the original motion to suppress evidence. The trial court denied defendant’s motion to set aside the information and denied the motion to suppress, citing the emergency aid doctrine of the community caretaking exception,

Rubio entered a plea of no contest to violating Health and Safety Code section 11370.1, as charged in count two, and admitted the special allegation pursuant to section 1203, subdivision (e)(4). The trial court sentenced him to three years of supervised probation, subject to conditions including nine months in the county jail or a residential substance abuse treatment program. Defendant filed a timely notice of appeal.

The Fourth Amendment and search of a home

The Fourth Amendment draws a “firm line at the entrance of the house.” (People v. Bennett (1998) 17 Cal.4th 373, 386, citing Payton v. New York (1980) 445 U.S. 573, 590.) At the amendment’s “very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (Silverman v. United States (1961) 365 U.S. 505, 511 (Silverman).) Thus, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31 (Kyllo).)

Emergency Aid exception and Exigent Circumstance exceptions not applicable

The Attorney General claims the emergency aid exception applies but here the police had no reasonable basis to conclude there was anybody inside the apartment who was in danger or distress. And the exigent circumstances exception fails to justify the forced entry because police had no reason to believe a shooter was hiding out in the apartment or that evidence of criminal conduct would be destroyed before the police had a chance to obtain a warrant.

Emergency Aid Doctrine

The emergency aid exception to the warrant requirement allows police to “enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Brigham City v. Stuart (2006) 547 U.S. 398, 400 (Brigham City); accord People v. Troyer (2011) 51 Cal.4th 599, 606 (Troyer).) In determining whether an officer acted reasonably, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. Here, Shotspotter data and percipient witness observations placed all of the gunfire outside the home, in or near the driveway and the gate to the backyard. There were no bullet holes in windows or siding to suggest that any of the shots fired outside the home had penetrated into the garage. There were no drops of blood on the ground to suggest anybody in range of the gunshots had been hit.

Unparticularized suspicion does not justify warrantless search of a home

An “unparticularized suspicion” that emergency aid might be necessary, does not give police the right to enter a home without a warrant.  The line demarking constitutional conduct “falls between the mere inchoate possibility that an emergency could exist and the officer’s articulation of facts that make it reasonable, even if uncertain, to believe an emergency does exist.” (Ovieda, supra, 7 Cal.5th at p. 1049.) Sergeant Simmont admitted he had no reason to believe an injured person was in the apartment, placing this case firmly on the “inchoate possibility” side of the Fourth Amendment line.

Defendant has the right to retreat into his home

The police had no evidence linking anyone inside defendant’s apartment to the shooting outside. Rubio had the right to deny police entry to his apartment. Rubio, had “the right … to retreat into his own home and there be free from unreasonable governmental intrusion.” (Silverman, supra, 365 U.S. at p. 511.) He should not need a barricade to fortify that right.

Exigent Circumstances

Because warrantless entry into a home is presumptively unreasonable, the government bears the burden of establishing exigent circumstances (Troyer, supra, 51 Cal.4th at p. 606), and we find none that justify forced entry here. Our Supreme Court has defined exigent circumstances as “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.” (People v. Ramey (1976) 16 Cal.3d 263, 276.)

Here, the totality of the circumstances fails to establish that when the police entered defendant’s apartment they had probable cause to believe a shooter would be found there. No evidence placed anyone but defendant in the garage at any point that evening, so that once defendant had come into the kitchen, police had no reason to believe anybody—shooter or otherwise—remained in the garage. There was no probable cause to believe a shooting suspect would be found in defendant’s apartment so the police could not rely on exigent circumstances to justify breaking down his door and entering his home to look for a shooter.


The judgment is reversed, and the case is remanded for further proceedings.


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