• Warrantless Searches of Structures Within the Curtilage of a Home
• Exigent Circumstances

The Fourth Amendment’s restrictions of warrantless searches of a residence extend to other structures within the curtilage of the home.  Whether exigent circumstances justify a warrantless search depends on the circumstances known to the officer at the time of the search.  The persistent odor of smoke, with no actual fire, does not allow for the warrantless search of a cabinet found inside a shed within the curtilage of a home.

A Milpitas Fire Department captain was a part of a crew that responded to defendant Joseph Nunes’ home one afternoon.  Although the 911 call indicated that there was a structure fire, with fire coming from the house, nothing was found to be going on when the fire department got there.  The house did not appear to be on fire.  Neighbors, however, told the fire captain that they had recently seen a plume of smoke coming from the backyard.  Police at the scene found no one to be home.  So the fire captain opened a side gate and entered the backyard.  In the backyard, the captain could smell smoke in the air; a smell, however, that was not consistent with someone cooking.  (Ha!  He’s never smelled my cooking.)  Looking around the backyard for the purpose of confirming there was no imminent danger, the captain could not find any active fire.  Still smelling smoke “around the entire backyard,” however, the fire captain and his crew continued to look for its source.  All they found were some test tubes, chemistry equipment, and a burned up homemade toy rocket.  Also in the backyard was a closed shed.  Although no smoke was coming from the shed, and despite the fact that the smell did not seem to originate from there, the captain—wanting “to make sure everything was clear”—opened the shed and looked inside.  Inside the shed was a metal cabinet.  Despite there being nothing to indicate that the cabinet might be related to the odor of smoke, but concerned that there might be some flammable chemicals inside, the captain opened it.  In the cabinet were some bottled chemicals with which the captain was not familiar.  Because he did not know what the chemicals might be, he called a hazardous materials team to respond.  The police, who had since departed, were also called back to the scene.  Based in part on the chemicals found in the cabinet, the police ultimately obtained a search warrant.  Execution of the search warrant resulted in the recovery of some explosive materials.  After the search warrant was executed, the District Attorney eventually charged defendant with numerous offenses related to the possession of explosives and explosive materials.  Defendant moved to suppress the evidence obtained from the fire captain's initial, pre-warrant search of the backyard, shed, and cabinet (which, if found to be illegal, would also jeopardize the validity of the resulting search warrant; an issue not discussed).  Upon the trial court’s denial of defendant’s motion, he pled “no contest” to possessing explosives and a destructive device.  Granted probation, defendant appealed.

The Sixth District Court of Appeal, in a split (2-to-1) decision, reversed.  The basic rules are simple enough:  Warrantless searches of a residence are presumed to be invalid.  (Peyton v. New York (1980) 445 U.S. 573, 586.)  The search of the shed in this case is accorded the same protection as defendant’s home, it being located within the curtilage of his home; i.e., the area immediately surrounding and associated with the home, which includes the backyard.  (See Florida v. Jardine (2013) 569 U.S. 1, 6; California v. Ciraolo (1986) 476 U.S. 207, 212.)  A recognized exception to this rule is when “exigent circumstances” require an immediate search.  (Kentucky v. King (2011) 563 U.S. 452, 460.)  An exigency exists when there isn’t time to obtain a search warrant without risking the loss of evidence, escape of a suspect, or, as in this case, “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) A majority of the Court ruled that under the circumstances of this case, while an exigency may have existed upon the initial arrival of the fire department at defendant’s home, it had dissipated by the time the fire captain looked into the cabinet.  Whether or not exigent circumstances exist depends upon what is known by the officer “at the time of the search.”  (People v. Duncan (1986) 42 Cal.3rd 91.)  Using this rationale, the Court found that the fire captain’s entry into the back yard, done for the purpose of attempting to determine whether there was a fire at that location, was reasonable. “That action was reasonable and permissible under the Fourth Amendment because it was premised on a specific, articulated exigency sufficient to justify warrantless entry—a possible house fire.”  But by the time the captain peeked into the cabinet, “the circumstances had changed significantly.”  Not only had it been determined that there was no house fire, but an inspection of the backyard showed that there was no active fire anywhere.  And while there may have been a “persistent odor” of smoke “not consistent with cooking,” there was no actual smoke observed from the house itself, the shed, or anywhere else.  More importantly, there was nothing to indicate that the source of the smoky odor was coming from the shed, let alone the cabinet within that shed. The fact that there was an odor of smoke in the backyard, by itself, “did not rise to the level of an emergency sufficient to bypass obtaining a search warrant for the contents of a cabinet which did not appear to be the source of the smell.”  (Italics in original)  Per the Court, there was nothing to indicate that the “opening of the cabinet in the shed was necessary to avoid imminent danger to life or serious property damage, given that the urgency of the situation had (by that time) dissipated.”  (Italics in original)  “The exigent circumstances exception therefore (did) not extend to the cabinet search.”  The Court, therefore, ruled that defendant’s motion to suppress should have been granted, and remanded the case back to the trial court for further proceedings consistent with this decision.

The dissenting justice argued, basically, that until the source of the smoky odor is found, and until it is insured that there were no dangerous chemicals in the cabinet, the fire captain acted reasonably in continuing to poke around the premises without a warrant.  At least, that’s what I think he said, he interpreting that facts—as well as the majority’s opinion—a bit differently than I do.  For instance, the dissenting justice indicated that the majority opinion approved the search of the shed itself, even if not the cabinet.  (pg. 9.)  The majority never specifically says that, skipping from the search of the yard (which it said was lawful) to the search of the cabinet (which it said was unlawful).   But the dissent does make a logical argument that finding a burned up homemade rocket device in the backyard might indicate that there might be “explosive material” somewhere in that backyard.  It would be logical to assume—as argued by the dissent—that if not visibly present, then explosive material might be in the shed, and then in cabinet in that shed.  The issue then becomes whether an exigency continued to exist that excused the failure to take the time to get a search warrant.  The majority says “no.”  The dissent argues that as long as there is the mere possibility that something—still unidentified—might still be smoldering (causing the smoky odor) somewhere in the backyard, any explosive material that might be in that cabinet, might be in danger of being ignited.  The dissent argues that for this reason, an exigency continued to exist.  The majority argues, in effect, that that’s a lot of “mights,” that the dissent’s reasoning is a bit of a stretch, and that it is not enough to constitute an exigency excusing the lack of a search warrant.  But either way, the majority rules.  So we have to live with it.  I also noted, by the way, that the Court just assumed, without discussing the issue, that a fire department official is held to the same search and seizure standards as a law enforcement officer.  If you were wondering about that, as I was, note that there is actual authority for this argument.  In Michigan v. Tyler (1978) 436 U.S. 499, at pg. 503, for instance, the U.S. Supreme Court noted that “any entry onto fire-damaged private property by fire or police officials is subject to the warrant requirements of the Fourth and Fourteenth Amendments.”  (Italics added.) So there’s the answer.