P. v. Troyer

1 SEE DISSENTING OPINION
Filed 1/27/09 P. v. Troyer CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERT TROYER,
Defendant and Appellant.
C059889
(Super. Ct. No. 07F06029)
A police officer received a dispatch call that a man
had possibly been shot twice at a house in Elk Grove. When
the officer arrived at the two-story house, he found a man
and a woman bleeding on the front porch. The man said the
perpetrators had driven away, but he was equivocal about
whether anyone was inside the house, and the officer saw
what appeared to be droplets and smudges of blood on the front
door. After the officer threatened to kick down the locked
front door to gain entry, the man handed over the keys. Four
police officers entered the house. They saw no signs of
struggle or blood. They searched the first floor and found

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nothing. While searching the second floor, one of the officers
encountered a locked bedroom door. After announcing his
presence and receiving no response, he broke down the door and
inside the bedroom found a scale and a glass jar filled with
marijuana, which led to the charges against defendant Albert
Troyer.
The question here is whether the warrantless search of
the upstairs bedroom was justified by the protective sweep or
emergency aid exceptions to the warrant requirement. The answer
is “no.” The protective sweep exception did not apply because
there were insufficient facts for the officers to reasonably
believe there were dangerous people inside the house, let
alone inside the locked upstairs bedroom. While the emergency
aid exception permitted entry into the house, there were
insufficient facts for the officers to reasonably believe
there was somebody inside the locked upstairs bedroom who was
seriously injured or imminently threatened with such injury.
Because the warrantless search of the locked bedroom
violated the Fourth Amendment, the trial court erred in denying
defendant‟s motion to suppress. Accordingly, we will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2007, Elk Grove Police Sergeant Tim Albright
received a radio call that a man possibly had been shot twice at
a home on Gem Crest Way in Elk Grove and that the perpetrators
were possibly driving a “two-door Chevrolet product.” He
arrived at the home and did not see any vehicle matching the
description given of the suspects‟ vehicle.

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On approaching the house, he saw a woman bleeding on the
front porch being tended to by another person. The woman
appeared to have been shot. He also encountered a man, Adrien
Abeyta, who was agitated and bleeding profusely from the head
with blood covering his face and T-shirt. Abeyta was moving
around the front porch. Sergeant Albright asked Abeyta to
describe what had occurred and any suspects involved. Abeyta
identified two suspects, a White male and a Black male, and told
the sergeant they had driven off in a vehicle westbound on Gem
Crest Way.
On three separate occasions within the span of
approximately one minute, Sergeant Albright asked Abeyta if
there were any other individuals in the residence. The first
time, Abeyta was unresponsive. The second time, Abeyta “stared
at [the sergeant] for a period of time and stated that he did
not believe that there was anybody inside.” The third time,
Abeyta stared at Sergeant Albright for a time and then said
“no.”
While dealing with Abeyta, Sergeant Albright saw what
appeared to be droplets and smudges of blood on the front
door, suggesting to him that “an individual who was bleeding
at some point came into contact with that door either by virtue
of ingress or egress.” The presence of this blood, along with
Abeyta‟s three different responses and his head injury, and “the
fact that . . . a violent shooting [had] occurred . . . mere
feet or within the doorway area” gave Sergeant Albright concern.

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He could not see or hear anything going on inside the
house, but decided to enter and asked Abeyta if the keys in
Abeyta‟s hands were for the residence. Abeyta said they were.
Sergeant Albright asked Abeyta for the keys to open the door,
and Abeyta declined. Sergeant Albright threatened to kick in
the door to gain entry, so Abeyta gave him the keys to the
house. Sergeant Albright estimated that the time between his
appearance at the house and the entry into the house was
approximately five to six minutes.
Four policemen entered the residence and saw no signs of
struggle or blood. They searched the first floor and found
nothing of interest. The police then began to search the second
floor. On the second floor, Officer Samuel Seo found a locked
door, which he broke down after receiving no response to the
announcement of his presence. Upon entering through that
doorway, Officer Seo smelled a strong odor of marijuana and
saw a glass jar filled with marijuana and an electronic scale.
As a result of the initial foray into the residence, the
officers obtained a search warrant and searched the house more
thoroughly. During the subsequent search, Officer Brian George
found (among other things) indicia linking defendant to a room
containing several mason jars of marijuana and a loaded .40-
caliber semiautomatic handgun.
Defendant was charged with unlawful possession of marijuana
for sale and cultivation of marijuana with enhancements attached
to both counts for possession of a firearm. Defendant moved
to suppress evidence based on the initial warrantless search.

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The People argued the search was justified under the protective
sweep and emergency aid exceptions to the warrant requirement.
The trial court found the emergency aid exception applicable and
denied the motion. Thereafter, defendant pled no contest to the
charges and enhancements. The trial court placed him on five
years‟ probation and ordered him to serve a year in jail as a
condition of probation.
From the order granting probation, defendant timely
appeals, contending the trial court erroneously denied his
suppression motion because the warrantless entry into the
home was not justifiable under either the protective sweep
or emergency aid exceptions to the warrant requirement.1 We
agree that the warrantless entry into the locked upstairs
bedroom was not justified under either exception and therefore
reverse the judgment.
1 Defendant refers to the emergency aid exception to the
warrant requirement as “a subcategory of the community
caretaking exception.” We eschew the latter term altogether
because of its association with Justice Brown‟s plurality
opinion in People v. Ray (1999) 21 Cal.4th 464, which concluded
that a search may be permissible under the community caretaking
exception where the police are not engaging in crime-solving
activities. (Id. at pp. 471-480.) As the People properly point
out, Justice Brown‟s “„subjective‟ motive analysis in Ray” was
“invalidated” by the United States Supreme Court‟s decision in
Brigham City v. Stuart (2006) 547 U.S. 398, 404 [164 L.Ed.2d
650, 658].

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DISCUSSION
I
The Warrantless Entry Into The House Was
Not Justified As A Protective Sweep
Defendant contends the warrantless entry of the house on
Gem Crest Way was not justified as a protective sweep under
Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276, 281-
282] because such a sweep must be “„incident to arrest,‟” and
here “no one was arrested or detained before the entry into the
home.” He contends the People offer “no rational[e] for
allowing a protective sweep in the absence of a detention or
arrest.” He also contends the warrantless entry “was not
supported by articulable facts that would lead a reasonable
officer to believe a dangerous person . . . lurked inside” the
house.
To justify a warrantless search as a protective sweep, the
prosecution must show that the search was “a quick and limited
search of premises, incident to an arrest and conducted to
protect the safety of police officers and others.” (Maryland v.
Buie, supra, 494 U.S. at p. 327 [108 L.Ed.2d at p. 281].) Buie
further held “there must be articulable facts which, taken
together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area
to be swept harbors an individual posing a danger to those on
the arrest scene.” (Id. at p. 334 [108 L.Ed.2d at p. 286].)
Expanding on Buie, some courts have found that a protective
sweep “is not limited to arrest situations” (People v. Ledesma

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(2003) 106 Cal.App.4th 857, 864), and it has been suggested the
doctrine may be invoked “when officers are rendering aid . . .
so long as the requirements of Buie are met” (ibid.).
Here, the search was not justified as a protective sweep
because, even assuming the entry and search of the home did not
have to be strictly incident to an arrest for the protective
sweep doctrine to apply, the other requirements of Buie were not
met. Specifically, there were insufficient facts from which a
reasonably prudent police officer would have been warranted in
believing there were one or more dangerous persons inside the
house. Abeyta told Sergeant Albright the assailants had fled,
which was at least superficially confirmed by the absence of
the car the suspects were reported to be driving. The door to
the house was locked, and Abeyta, who himself was injured, was
holding the keys, strongly suggesting none of the assailants had
fled inside the house. Furthermore, Sergeant Albright could not
see or hear anything inside the house. In their totality, these
facts would not have led a reasonably prudent police officer to
believe the area to be swept -- the inside of the house --
harbored an individual posing a danger to those on the scene.
The People assert that “[t]he rational inference from the
objective facts was that someone with the gun used to shoot the
victim could have been inside” the house. (Italics added.) But
the mere possibility that an armed person may be present is not
enough to justify a protective sweep. Rather, the facts known
to law enforcement must be such as to warrant the reasonable
belief that such a person is present. Here, the facts known to

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Sergeant Albright did not rise to that level. Accordingly,
the warrantless search of the house cannot be justified as a
protective sweep.
II
The Warrantless Entry Into The Locked Upstairs Bedroom Was
Not Justified Under The Emergency Aid Doctrine
Defendant contends the emergency aid exception did not
apply here because “there was no articulable fact leading the
officers to conclude that a person was inside the house, much
less a person in imminent danger.” Limiting ourselves to the
entry into the locked upstairs bedroom, we agree.
The emergency aid doctrine is part of the exigent
circumstances exception to the warrant requirement, which allows
warrantless searches if the exigencies of the situation require.
(See Brigham City v. Stuart, supra, 547 U.S. at pp. 403-404
[164 L.Ed.2d at pp. 657-658].) Under the emergency aid
doctrine, law enforcement officers may “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.” (Id. at p. 400 [164 L.Ed.2d at
p. 656].)
In Brigham City, the police officers arrived at a house
and heard from within “„an altercation occurring, some kind of
fight‟” and “„thumping and crashing.‟” (Brigham City v. Stuart,
supra, 547 U.S. at p. 406 [164 L.Ed.2d. at p. 659].) They
determined the noise was coming from the back of the house and
that knocking on the front door would be futile, so they went

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around back. (Ibid.) Through a window, they saw a juvenile
strike “one of the adults in the face, sending the adult to
the sink spitting blood.” (Ibid.) Then they saw several people
try to restrain the juvenile so forcefully they displaced a
refrigerator. (Id. at p. 401 [164 L.Ed.2d at p. 656].) Based
on this evidence, the United States Supreme Court held that the
“officers were confronted with ongoing violence occurring within
the home,” which justified the entry of the officers into the
home after announcing themselves outside the screen door. (Id.
at pp. 405-406 [164 L.Ed.2d. at pp. 659-660].)
Here, the People contend “the objective facts of this
case also justified the officers‟ entry into the residence to
search for additional victims” because “[t]he female shooting
victim was on the ground screaming; a male shooting victim
was not outside. The only person able to relate the facts was
Abeyta, who had a serious head wound and who provided odd and
conflicting responses regarding whether anyone else was in the
residence. The situation was intense and chaotic, and the front
door to the residence had blood patterns indicated that a person
who was bleeding had been against the door going out of or into
the residence.”
We agree that the foregoing facts -- particularly the blood
on the door that suggested entry by someone who was bleeding --
provided an “objectively reasonable basis for believing that an
occupant [of the house was] seriously injured . . . .” (Brigham
City v. Stuart, supra, 547 U.S. at p. 400 [164 L.Ed.2d at
p. 656].) Thus, it was reasonable for the officers to enter

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the house to look for another victim. Once the officers
entered, however, they did not see anything that attracted
their attention. It did not appear any struggle had taken
place in the house, and they did not see any blood, even though
they were looking for it. Nevertheless, an officer kicked open
a locked door to a second floor bedroom, where contraband was
discovered in plain sight. Although the facts known to the
officers justified the initial entry into the house, and
assuming for the sake of argument that they justified a search
of the upper floor as well as the lower floor (despite the lack
of any blood except on the front door), the facts known to the
officers did not justify kicking in the locked door to an
upstairs bedroom to look for additional victims because the
facts did not support an objectively reasonable belief that
there was a person within the locked bedroom who was in need of
immediate aid. While the officers undoubtedly were justifiably
“concerned for the possibility of an injured person inside the
residence,” they “had no knowledge of any facts that would lead
a reasonable person in their position to believe entry [into the
locked bedroom] was immediately necessary to aid life or limb.”
(People v. Ray, supra, 21 Cal.4th at p. 473.) Thus, entry into
the upstairs bedroom was not justified by the emergency aid
exception to the warrant requirement.
Because neither the protective sweep exception nor the
emergency aid exception applied, the warrantless entry and
search of the upstairs bedroom violated the Fourth Amendment,

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and the trial court erred in denying defendant‟s motion to
suppress.
DISPOSITION
The judgment is reversed. Defendant shall be allowed to
withdraw his no contest plea, and in the event he does so, the
trial court shall vacate its order denying the motion to
suppress and enter a new order granting that motion.
ROBIE , J.
I concur:
BUTZ , J.

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Nicholson, A. P. J., Dissenting
After months of quiet and comfortable reflection, the
majority parses what the officers did in a few stressful and
dangerous minutes and finds one aspect of the officers‟ actions
unreasonable. I disagree. Under the totality of the
circumstances, the officers acted reasonably, in every way.
A warrant to enter a residence is required unless the
exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable.
(Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290,
301].) One type of exigent circumstance is an emergency
situation requiring swift action to prevent imminent danger to
life. (People v. Ormonde (2006) 143 Cal.App.4th 282, 292.)
This has been called the “„emergency aid‟” exception. (Brigham
City v. Stuart (2006) 547 U.S. 398, 401 [164 L.Ed.2d 650, 656].)
Under this exception, “police officers may enter a home to
render emergency assistance when they have an objectively
reasonable basis to believe someone inside is seriously injured
or imminently threatened with such injury.” (People v. Gemmill
(2008) 162 Cal.App.4th 958, 960.)
Here, Sergeant Tim Albright arrived at the residence within
three minutes after the 911 call reporting an attempted home
invasion robbery. He found three people on the porch in front
of the residence: Mia Zapata, who was on the ground and
apparently had been shot; a neighbor, who was trying to assist
Zapata; and Adrien Abeyta, who was bleeding profusely from a

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head wound. Sergeant Albright observed blood on the front door
of the residence. He could not see into the residence because
the window blinds were shut, and he could not hear whether any
sounds were coming from inside the residence because Zapata and
Abeyta were screaming and arriving police and fire personnel
were loud.
Abeyta was excited and agitated. Blood was issuing from
the top and rear of his head, covering most of his face. His T-
shirt was covered with blood. Sergeant Albright questioned
Abeyta, but it was very difficult to get answers because of
Abeyta‟s agitated state.
Sergeant Albright asked Abeyta whether anyone was in the
residence.2 Abeyta just stared at Sergeant Albright,
unresponsive for 15 to 20 seconds. Sergeant Albright repeated
his question, and Abeyta finally responded that he did not
believe anyone was inside. Sergeant Albright asked a third
time, and Abeyta again stared at Sergeant Albright and finally
said no.
Sergeant Albright decided to send officers into the house
to check for victims or suspects. The door was locked, so he
told Abeyta that he would break the door down. Abeyta did not
want that to happen and provided a key to the front door.
2 Sergeant Albright also got a description of the suspects
from Abeyta, but he did not remember whether this was before or
after he asked whether there was anyone inside the residence.

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Officer Samuel Seo was one of four officers who entered the
two-story residence to look for additional victims or suspects.
Downstairs, he saw nothing that attracted his attention.
Officer Seo went upstairs to check any location where a victim
could be found, such as on the floor and in closets. While
upstairs, he encountered a locked bedroom door. He announced
his presence and did not hear anything from inside the room, so
he broke through the door. He checked the bedroom for victims,
while another officer checked the closet. While in the bedroom,
Officer Seo noticed the contraband in plain sight.
The majority concludes that the entry into the residence
was reasonable but the entry into the locked bedroom was
unreasonable. I agree that the entry into the residence was
reasonable. Society expects law enforcement to come to the aid
of victims, even under stressful and dangerous circumstances.
“Erring on the side of caution is exactly what we expect of
conscientious police officers.” (United States v. Black (9th
Cir. 2007) 482 F.3d 1035, 1040.)
I disagree with the majority, however, concerning the
reasonableness of checking the upstairs bedroom for victims.
The evidence of extreme violence just outside the residence and
blood on the front door prompted the entry into the residence.
In their hurried analysis of the situation once inside the
residence, the officers did not find further evidence that a
victim had been moving around inside. However, that moment was
not the appropriate time to launch a thorough investigation of
what was found in the residence upon entry. Their entry into

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the residence was justified, and a swift search of the house to
find the possible victims was the essence of that justification.
That, in hindsight, no other victim was found in the residence
may make it more comfortable to find a violation of the Fourth
Amendment, but it did not make the search less reasonable.
What the majority calls a violation of the Fourth
Amendment, I find to be a reasonable and brave execution of law
enforcement duties. Therefore, I would affirm.
NICHOLSON , Acting P. J.

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