This article was published in the Daily Journal today.  Patrick Santos from my office did a great job on this case with me. We hope to use it in another case we have pending before the Court of Appeal, Second District, presently.

Unwarranted Search Legal, Court


By Laura Ernde

Police acted lawfully when they burst into a Sacramento County man’s locked

bedroom without a warrant and found marijuana, a divided state Supreme Court ruled


Faced with a chaotic crime scene, including a shooting victim lying on a porch, police

had good reason to believe there might be more victims inside the house. As a result,

police were covered by the emergency-aid exception to the Fourth Amendment’s

protections against unreasonable search and seizure, the court ruled 5-2. People v.

Troyer, 2011 DJDAR 2726.

“The possibility that immediate police action will prevent injury or death outweighs

the affront to privacy when police enter the home under the reasonable but mistaken

belief that an emergency exists,” Justice Marvin R. Baxter wrote for the majority.

Although defendant Albert Troyer lost the appeal, the ruling might help other

defendants in search and seizure cases because of the standard the high court adopted

in making the decision, one defense lawyer said.

Trial court judges evaluating police searches must look at whether police had an

objectively reasonable basis to believe there was an emergency, said Ronald Richards of

Ronald Richards & Associates, who filed a friend-of-the-court brief in the case.

In People v. Ray (1999) 21 Cal.4th 464, former Supreme Court Justice Janice Rogers

Brown had suggested that an officer’s state of mind factored into the analysis. Under

that standard, police could justify conducting an emergency-aid search without a

warrant when there was any possibility of danger.

“It was a bad standard. If the officer had good motives, even though there was no

objective basis, this was giving the state wiggle room,” said Richards, who represents a

defendant with a Fourth Amendment claim at the 2nd District Court of Appeal.

With Tuesday’s decision, the state high court officially adopted the objective standard

outlined by the U.S. Supreme Court in Brigham City v. Stuart (2006) 547 U.S. 398.

Deputy Attorney General Doris A. Calandra, who represented the prosecution on

appeal, did not immediately return a call for comment Tuesday.

The justices were at odds over whether the search was lawful, even under the

objective standard.

In a dissent, Justice Joyce L. Kennard said the officers did not have good reason to

barge through the defendant’s bedroom door.

“Because the police found no trace of blood inside the house, observed no sign of

disturbance or struggle, and heard no sounds coming from inside the bedroom after

knocking and announcing their presence, the possibility that a wounded gunshot victim

was inside that room was too remote and speculative to justify the forced entry into the

bedroom,” Kennard wrote. Justice Carlos R. Moreno, who is stepping down at the end

of the month, also signed the dissent.

The 3rd District Court of Appeal, in a 2-1 unpublished opinion, found that the search

was illegal and that Sacramento County Superior Court Judge Laurie M. Earl should

have excluded the drug evidence against Troyer.

The state Supreme Court reversed Tuesday with the assistance of former Chief

Justice Ronald M. George, who was sitting by assignment. George heard oral argument

in the case before he retired in December.

Justice Kathryn Mickle Werdegar agreed with the majority that the search was legal,

but wrote separately to say that the officers were justified because the locked bedroom

door presented a risk to their own safety, which is somewhat different than the

emergency-aid exception.

“We cannot reasonably demand that officers called to the scene of a shooting, where

they cannot be sure of the number or whereabouts of the armed assailants, proceed to

assist victims and investigate the crime scene without securing themselves, witnesses,

and others present against ambush from a nearby hiding place,” Werdegar wrote.

Troyer’s appointed attorney, San Francisco sole practitioner J. Wilder Lee, said he is

considering asking the U.S. Supreme Court to take up the case.

“I don’t think it’s the last word on the emergency-aid exception,” he said.

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