Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

Danny Joe TAMBORINO, Danny Joe Smith, Petitioners and Defendants, v. SUPERIOR COURT, Orange County, Respondent, PEOPLE of the State of California, Real Party in Interest.

G 001488.

Decided: September 25, 1984

Ronald Y. Butler, Public Defender (Orange), James Dean Allen and Donald J. Ayoob, Deputy Public Defenders, for petitioner and defendant Danny Joe Smith. Thomas A. Reilly, Laguna Beach, for petitioner and defendant Danny Joe Tamborino. Cecil Hicks, Dist. Atty. (Orange), William W. Bedsworth, II, and M. Craig McKinnon, Deputy Dist. Attys., for real party in interest.


Petitioners Danny Joe Tamborino and Danny Joe Smith seek a writ of mandate to compel the Orange County Superior Court to grant their motions to set aside an information (Pen.Code, § 995) 1 and to suppress evidence (§ 1538.5).   The information charged Tamborino and Smith with possession of cocaine for the purpose of sale (Health and Saf.Code, § 11351).   The determinative issue is whether the police search of petitioners' apartment was proper.2


On November 12, 1983, at about 8:30 a.m., police officer John Klein received a call to go to the Oakwood Apartments because a robbery had just occurred and there was an injured and bleeding victim on the third floor landing.   Klein went to the apartment complex and found blood but no victim until a neighbor finally directed him to petitioners' apartment.

Klein, accompanied by two other officers, went to the apartment and knocked on the door, but got no response.   After a minute or so, Klein knocked on the door again.   He again received no response.   At the section 1538.5 hearing, he explained he heard someone walking around and a dog barking.   Klein felt there was someone inside who was hurt and could not get to the door.   He had previously called to get the telephone number for the apartment, but the police station personnel could not locate one.

Finally, Klein kicked in the locked front door.   Inside he saw Tamborino, in a bathrobe, walking through the kitchen toward the front door.   Tamborino was covered with blood, but Klein did not think he was seriously injured.   Without entering himself, Klein ordered Tamborino out of the apartment and handcuffed him.   At the preliminary hearing, Klein said he did this because he did not know if Tamborino was a victim or a suspect.   At the section 1538.5 hearing, however, Klein admitted he did not suspect Tamborino of criminal activity after seeing him inside the apartment.

Klein entered and searched the apartment for other injured people.   On the living room coffee table Klein saw cocaine residue and paraphernalia.   He also saw marijuana in the living room.   He went into one of the bedrooms and saw cocaine packaging paraphernalia in plain view.   Nobody else was found in the apartment.

Tamborino was brought back inside, still handcuffed, and the police attempted to find out what happened.   Tamborino described a knife assault and, indeed, the police retrieved a knife in the living room.   However, Klein felt Tamborino did not want to reveal all that actually happened.   Tamborino's roommate, Smith, arrived and said he knew the assailant, but did not offer a reason why the assailant had come to the apartment.   The paramedics arrived, treated Tamborino and, shortly thereafter, took him to the hospital.

Before Tamborino left, Klein asked both petitioners for consent to search the apartment.   They refused.   Klein called for a narcotics investigator.   Klein also told Smith he believed there was narcotic activity taking place in the apartment and the incident had been an attempt to steal money or narcotics.   He told Smith he “was being detained while [Klein] sought a search warrant for the apartment.”

When the narcotics investigator, Yourex, arrived, he talked to Smith about the situation and “explained to him that [Yourex] was going to petition for a search warrant and was going to call the on-call weekend D.A.”   As Yourex walked to the telephone, Smith said the police could search because they were going to find “it” anyway.   Smith's bedroom was searched and cocaine and paraphernalia were recovered.

Sgt. Van Horn spoke to Tamborino at the hospital while Tamborino was on a gurney awaiting treatment.3  Van Horn said Klein and Yourex “were in the process of obtaining a search warrant for the house.”   Tamborino said he was concerned about damage to his property and had no narcotics in his part of the apartment.   Van Horn asked for consent to search and Tamborino said the police could search if he (Tamborino) was present.   Van Horn returned to the apartment and told Klein.

Officer Caldwell then asked Tamborino for consent to search without Tamborino being present.   Caldwell did not tell him he could refuse nor did he give Tamborino Miranda 4 warnings.   Caldwell did tell Tamborino the search could be conducted with Tamborino present if he wished or it could be done in his absence.   Tamborino said the police could search if they were careful about a mirror in his bedroom.   This was relayed to Klein who searched the bedroom and found more cocaine and paraphernalia.


Did Officer Klein act properly when he kicked in the door to petitioners' apartment?   If so, did the officers also act properly when they ordered Tamborino, in a bathrobe and bleeding, out of the apartment, handcuffed him and entered the apartment to search for other injured people?   The trial judge reasoned once an emergency begins, it cannot be “bifurcated” and thus an emergency calling for swift action still existed after the police contacted Tamborino.

 In People v. Keener (1983) 148 Cal.App.3d 73, 195 Cal.Rptr. 733, we recently stated operative principles which also apply here:  “ ‘ “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.’ ”   (Mincey v. Arizona (1978) 437 U.S. 385, 390 [98 S.Ct. 2408, 2412, 57 L.Ed.2d 290].)  Only a few “specifically established and well-delineated exceptions” (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576] ) have been judicially engrafted upon this general proscription and the counterpart set forth in article I, section 13, of the California Constitution.  (People v. Cook (1978) 22 Cal.3d 67, 97 [148 Cal.Rptr. 605, 583 P.2d 130] quoting People v. Ramey (1976) 16 Cal.3d 263, 270 [127 Cal.Rptr. 629, 545 P.2d 1333].)'  (People v. Justin (1983) 140 Cal.App.3d 729, 734–735 [189 Cal.Rptr. 662].)  [¶] We first consider whether the warrantless entry into the apartment to search for additional suspects or victims falls within one of the exceptions.   There is no ready litmus test for determining whether a particular situation negates the constitutional requirement of a warrant.  (People v. Escudero (1979) 23 Cal.3d 800, 809 [153 Cal.Rptr. 825, 592 P.2d 312].)  In each case the claim of exigent circumstances must be evaluated on its particular facts.   Where there is reasonable cause to believe additional suspects or potential victims are in a residence, a warrantless entry is permissible.  (People v. Block (1971) 6 Cal.3d 239 [103 Cal.Rptr. 281, 499 P.2d 961];  see also People v. Carney (1983) 34 Cal.3d 597 [194 Cal.Rptr. 500, 668 P.2d 807];  Dillon v. Superior Court (1972) 7 Cal.3d 305 [102 Cal.Rptr. 161, 497 P.2d 505];  Hernandez v. Superior Court (1971) 16 Cal.App.3d 169 [93 Cal.Rptr. 816];  and Guevara v. Superior Court (1970) 7 Cal.App.3d 531 [86 Cal.Rptr. 657].)”  (People v. Keener, supra, 148 Cal.App.3d 73, 77, 195 Cal.Rptr. 733.)

 The police had reasonable cause to force open the door to petitioners' apartment.   There was the report of a robbery call, with an injured and bleeding victim, the discovery of blood in and around the area of the building and the sounds emanating from the apartment identified to the police as that of the victim.   These facts made it perfectly reasonable for the police to believe an injured robbery victim, incapacitated, was inside the residence, in need of medical attention.   This warrantless intrusion was reasonable under the so-called “emergency doctrine” or “doctrine of necessity” to preserve life.  (People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721.)

The People argue the sweep of the apartment was also justified by exigent circumstances.   A two-part test applies to this claim:  “First, the objective test:  was the threat so imminent and serious a reasonable policeman would believe that a warrantless, emergency entry was necessary to save lives and property?   And, second, the subjective test:  was this officer indeed motivated primarily by a desire to save lives and property?”  (People v. Dickson (1983) 144 Cal.App.3d 1046, 1063, 192 Cal.Rptr. 897;  see also People v. Blackwell (1983) 147 Cal.App.3d 646, 651, 195 Cal.Rptr. 298.)

 The sweep does not survive the objective test.   Having forced the door open, the police encountered Tamborino, whom they could only believe was the reported robbery victim.   Klein admitted at the section 1538.5 hearing he had no reason to suspect Tamborino of any criminal activity at that point.   And, notwithstanding his denial of petitioners' motions, the superior court judge agreed there was no logic in concluding Tamborino was anything other than a victim.   Tamborino complied with Klein's order to come out of the apartment.   At that point, for no reason apparent from the record, the officers chose to treat Tamborino as a suspect.

The report had mentioned only one robbery victim.   The officers' observations did not cause them to believe anyone else remained inside.   It is, we must observe, more than a little ironic the prosecution argues the sweep of the apartment was justified by a concern for injured robbery victims when the only injured robbery victim the police actually encountered was treated as if he were a criminal.   Since the officers had no reasonable basis to conclude Tamborino was anything other than a robbery victim, they had no basis to surmise any other victims might be inside.   At that point, it was incumbent on the officers to inquire of Tamborino what the situation then was, thereby balancing both constitutional privacy interests and the duty to protect life.   (See People v. Keener, supra, 148 Cal.App.3d 73, 77, 195 Cal.Rptr. 733.)   Depending on Tamborino's answers, or his inability to reply, further action by the officers might or might not have been appropriate.   Until such inquiry, however, a reasonable officer would not believe there was a threat so imminent and serious a warrantless, emergency entry was necessary to save lives.  (See People v. Dickson, supra, 144 Cal.App.3d 1046, 1063, 192 Cal.Rptr. 897.)

Put another way, once the officers had successfully contacted Tamborino, the emergency was over.   They were looking for a robbery victim and found a robbery victim.  “When the exigency ends, the warrant requirement reemerges.   [Citation.]”  (People v. Keener, supra, 148 Cal.App.3d 73, 87, 195 Cal.Rptr. 733;  See also People v. Blackwell, supra, 147 Cal.App.3d 646, 654, 195 Cal.Rptr. 298;  People v. Bradley (1982) 132 Cal.App.3d 737, 183 Cal.Rptr. 434;  People v. Frazier (1977) 71 Cal.App.3d 690, 694, 139 Cal.Rptr. 573.)

Two cases upon which real party in interest places strong reliance, People v. Soldoff (1980) 112 Cal.App.3d 1, 169 Cal.Rptr. 57 and People v. Stamper (1980) 106 Cal.App.3d 301, 164 Cal.Rptr. 861, do not compel a contrary result.   Neither of those cases involves a comparable situation.   In neither case had the police officers successfully located the object of their emergency search, but nonetheless expanded the duration of the “emergency” by the sheerest speculation other victims might exist.

 Because we conclude the officers' actions in searching the apartment were not objectively reasonable, we do not reach the second, subjective, test of whether these officers were actually motivated primarily by a desire to save lives.  (People v. Dickson, supra, 144 Cal.App.3d 1046, 1063, 192 Cal.Rptr. 897.)   But even where that is the motive, it is nonetheless of vital importance the warrant requirement (People v. Keener, supra, 148 Cal.App.3d 73, 77, 195 Cal.Rptr. 733) not be compromised even by “ ‘well-intentioned but mistakenly overzealous executive officers.’ ”  (See People v. Carney (1983) 34 Cal.3d 597, 603, 194 Cal.Rptr. 500, 668 P.2d 807.)   Under the circumstances of this case, the police did not possess facts sufficient to justify a warrantless search of petitioners' apartment based on an emergency.


 Since we conclude the police could not lawfully search the apartment for other robbery victims, it necessarily follows the observations of cocaine residue, paraphernalia and marijuana inside the apartment must be suppressed.   Klein testified he could not observe any contraband before he actually entered the apartment.   Those unlawful observations cannot be used to justify petitioners' detention.  (See Kirby v. Superior Court (1970) 8 Cal.App.3d 591, 595–596, 87 Cal.Rptr. 577.)   Without the observations of Officer Klein during his sweep of the apartment, there were no facts in the record justifying the detention of either petitioner under the familiar standard enunciated in In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957.

Thus, when each petitioner consented to a search of that portion of the apartment over which he exercised dominion and control, he was being illegally detained.  “The only remaining question is whether [petitioners' acquiescence to a search] can be interpreted as a voluntary consent validating the [search of the bedrooms and bathrooms], despite the illegality of the prior police conduct.   It is well established that ‘ “consent” induced by an illegal arrest or search is not voluntary.’  [Citations.]  [W]e must determine ‘ “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint” ’ [Citation.]”  (People v. Leib (1976) 16 Cal.3d 869, 877, 129 Cal.Rptr. 433, 548 P.2d 1105.)   The same analysis applies to consent after an illegal detention.  (See Wilson v. Superior Court (1983) 34 Cal.3d 777, 791, fn. 12, 195 Cal.Rptr. 671, 670 P.2d 325.)   In any event, the foregoing passage in Leib applies with full force to the present case because here we have an illegal search followed by an illegal detention.

 Applying these principles, we conclude the consent of each petitioner “is extricably bound up with the illegal conduct and cannot be segregated therefrom.”  (People v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.)   Although the time frames in the present case are not crystal clear in the record, no more than an hour or two at most elapsed from the onset of the detention of each petitioner and his consent to search.   Each was under uninterrupted detention prior to the consent.   Both initially refused to consent to a search of the apartment.

Smith consented to a search after Yourex said he would attempt to get a search warrant.   The same is true of Tamborino.   While such a declaration does not normally vitiate consent because an officer has a legal right to seek a search warrant (see People v. Ward (1972) 27 Cal.App.3d 218, 103 Cal.Rptr. 671), here the officers had no legal right to a search warrant because their only probable cause was based upon observations during Klein's prior illegal sweep of the apartment.  (See People v. Cook (1978) 22 Cal.3d 67, 98–99, 148 Cal.Rptr. 605, 583 P.2d 130.)

Tamborino's purported consent contained an additional dimension of coercive police conduct.   While he was at the hospital awaiting treatment, but under detention, one officer requested consent and indicated the police were in the process of obtaining a search warrant.   Tamborino said they could search if he was present to make sure his property was not harmed.   Not satisfied with this, another officer subsequently importuned Tamborino to let them go ahead without him.   The entire process, in a consent to search context, smacks of the wearing down, in a confession context, condemned by our Supreme Court in People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108.

We discern no intervening circumstances which would separate the consent of either petitioner from the illegal police conduct.  (See Wilson v. Superior Court, supra, 34 Cal.3d 777, 792, fn. 12, 195 Cal.Rptr. 671, 670 P.2d 325.)   We conclude, as a matter of law, the consent of each petitioner was involuntary.  (Id.;  see also People v. James (1977) 19 Cal.3d 99, 109, 137 Cal.Rptr. 447, 561 P.2d 1135.)   The seizure of the cocaine which is the basis of this prosecution was illegal.  (See People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Petitioners' motion pursuant to section 1538.5 should have been granted.

The alternative writ is discharged.   Let a peremptory writ of mandate issue directing the superior court to vacate its order denying petitioners' section 1538.5 motion and enter a new and different order granting the motion consistent with the views expressed in this opinion.5  When this decision becomes final, the stay previously issued is vacated.


1.   All statutory references are to the Penal Code unless otherwise stated.

2.   The issue was litigated under both sections 995 and 1538.5 (See People v. Laiwa (1983) 34 Cal.3d 711, 195 Cal.Rptr. 503, 669 P.2d 1278).   The 1538.5 motion was determined on the basis of the preliminary hearing transcript and supplementary testimony of one police officer.   As we shall explain, our determination of the petition for extraordinary relief as it pertains to the 1538.5 motion renders the petition moot with respect to the 995 motion.

3.   He received eight stitches for a scalp wound.

4.   (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

5.   The granting of petitioners' section 1538.5 motion will effectively terminate the prosecution by suppressing the cocaine which forms the basis of the prosecution.   This renders petitioners' request for relief from the denial of the section 995 motion moot.

SONENSHINE, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.

Copied to clipboard