Filed 12/4/13 P. .v Williams CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. AMANDA RAE WILLIAMS et al., Defendants and Appellants. H037936 (Santa Clara County Super. Ct. No. C1109707)

Defendants Amanda Rae Williams and Duane Lionel Chavez pleaded guilty to child endangerment (Pen. Code, § 273a, su bd. (a)), possession of heroin (Health & Saf. Code, § 11350, subd. (a)), possession of methamphetami ne (Health & Saf. Code, § 11377, subd. (a)), and being under the infl uence of heroin (Health & Saf. Code, § 11550, subd. (a)). The trial court susp ended imposition of se ntence and placed defendants on probation for four years on cond ition, among other things, that they serve one year in county jail. On appeal, defendants contend that the trial court erred in denying their motions to suppress evidence . We disagree and affirm the orders.2 I. Statement of Facts 1 Officer Tom Tiphayachan testified that at about 10:00 a.m. on June 19, 2011, he and Officers Catherine Velasque z and Noreen Marinelli were dispatched to 1368 Essex Way in San Jose in response to a report of a “verbal disturbance” between a male and a female. Tiphayachan spoke with the reporting party who told him that the disturbance
occurred on the second floor of the apartmen t building at 1376 Essex Way. However, the reporting party was unable to pinpoint which of the two apartments on the second floor
was the scene of the disturbance.
The three officers went to the second floor of the apar tment building, but they did not hear anything. Tiphayacha n then knocked loudly a few tim es on one of the doors. After 20 to 30 seconds, Williams answered the door. Tiphay achan explaine d that they were investigating a disturbance between a ma le and a female and asked her if she knew
about the disturbance or was involved in it. Williams appeared “very apprehensive” and, after a long pause, she replied that she was not involved. When he again asked whether she knew about any disturbance, she eventua lly pointed downstairs . After about 25 seconds of speaking to Williams, Tiphayac han concluded that she was under the
influence of heroin because she had droopy eyelids, “sou nded very lethargic,” and had several intravenous drug mark s on her arms and neck. 2 When he asked her if anyone else was in the apartment, she rep lied that her husband and four-y ear-old child were inside. Tiphayachan became very c oncerned about the child’s we ll-being. Based on his experience that intravenous drug users often had additiona l narcotics and uncapped or “loaded” hypodermic needles, he was concerne d that the child would have access to these items. At this point, he wanted to check on the child’s welfare firs t and then “deal with”

1 The statement of facts is based on th e evidence introduced at the hearing on the motion to suppress evidence. 2 Tiphayachan testified as an expert in recognizing the physiol ogical symptoms of a person under the influence of heroin as we ll as methamphetamine, how those substances are ingested, and the paraphernalia associated with heroin and methamphetamine use.3 Williams at a later time. Though the officer ha d decided to enter the apartment, he asked
Williams if he could check insi de to ensure that no fight ha d occurred and to check on the
welfare of her child and husb and. According to Tiphayac han, Williams did not reply, stepped backwards, and op ened the door slightly. 3 When Tiphayachan asked Williams
where her husband and child we re, she replied that they we re in the back bedroom. Tiphayachan and Marinelli entered the ap artment. Tiphayac han passed by some open doors, went to the bedroom at the end of the hallway, knocked several times on the closed door, and announced himself as a polic e officer. After abou t 35 to 45 seconds,
Chavez answered the door. Ch avez was “extremely lethargic, ” his eyes were “droopy,” and his pupils were constricted. He spoke in a “very slow, raspy tone of voice” and had numerous marks on his body that indicated in travenous drug use. In Tiphayachan’s opinion, Chavez was under the influence of an opiate. The officer asked him why it took so long to answer th e door, and he answered that he was using the restroom. When Tiphayachan asked him where th e child was, Chavez pointed to the child, who was sitting in front of a computer in the bedroom. The child was wearing a T-shirt, but he was not wearing pants. Code fendant William Lindley was lying on the bed. Ti phayachan asked Lindley and Chavez to exit the bedroom so he could check on the child’s welfare. The child appeared to be fine.
When the officers directed Chavez and Lindley into the living room, the child followed them. Tiphayachan concluded that Lindley was under the influence of heroin and “possibly” under the influence of me thamphetamine. He had marks on his body indicating intravenous drug use, his speech was very rapid, and he had a dry mouth. Lindley was placed under arrest for being under the influence of a controlled substance.

3 Defendants challenged Tiphayachan’s version of events regarding Williams’ implied consent. A surveillance video, which did not have so und, showed Williams speaking with the officers. However, the tr ial court did not determine whether Williams consented to the request to enter the apartment.4 Velasquez testified that she had rema ined with Williams when the other two officers entered the apartment. In her opi nion, Williams was under the influence of
heroin. 4 When Velasquez brought Williams into the living r oom, she overheard Lindley admit to using needles. She then asked him directly where the needles were. He replied that they were in the bedroom but he would not give an exact location. Though Chavez told Velasquez that the child was not near the needles, no one knew where the child was at that point. Velasquez saw that the door to the back bedroom was closed and when she tried to open it, it was locked. She saw a key above th e door and opened the door. The child was again sitting in front of the computer a nd there was nothing hazardous near him. However, when she stooped down to pick up his underwear to help him get dressed, she noticed that the bathroom door was open and there appeared to be blood on the floor.
She entered the bathroom and saw blood in the sink area, a butane lighter, a glass pipe, and other drug paraphernalia. Ve lasquez also saw a hypodermic needle inside the vanity
cabinet because the doors to th e cabinet were open. The hypodermic needle contained a
brownish substance which the officer believed to be heroin. The ch ild would have been able to reach any of these items. Velas quez returned to the living room and told
Marinelli what she had found. Marinelli then arrested Williams and Chavez for possession of controlled substances and child endangerment. Though the trial court declined to make a findi ng on whether Williams had consented to a search of the apartment, it de nied the suppression motion. The trial court noted that Tiphayachan had tes tified that Williams appeared to be under the influence of
heroin and told him that her f our-year-old child was in the ap artment with his father. The trial court found that the officers properly entered the residence to determine “whether

4 Velasquez testified as an expert in recognizing persons under the influence of heroin and the paraphernalia associ ated with the use of heroin.5 there was a responsible adult with that four-y ear-old child before they arrested the fouryear-old child’s mother and went away.”

II. Discussion
Defendants contend that the trial court e rred in denying their motions to suppress evidence. They cont end that entry into defendants’ residence was unlawful because Williams did not give her consent and th ere were no exigent circumstances. “ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ ” ( People v. Weaver (2001) 26 Cal. 4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) The federal and state Constitutions prohib it unreasonable searches and seizures by the government. (U.S. Const., 4th & 14th Am ends.; Cal. Const., art. 1, § 13.) A warrantless entry into a home is presumptively unreasonable. ( Payton v. New York (1980) 445 U.S. 573, 587.) In the case of a warrantless search of a home, the prosecution
bears the burden of establishi ng that the search “was jus tified by some exception to the warrant requirement.” ( People v. Camacho (2000) 23 Cal.4th 824, 830.) One exception to the warrant requirement is “the need to assist persons who are seriously injured or
threatened with such injury. ‘ “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” ’ [Citations.] Accordingly, law enforcement o fficers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.]” ( Brigham City v. Stuart (2006) 547 U.S. 398, 404.) “This ‘emergency aid exception’ does not depend on the officers’ subjective intent or the seriousness of any crime they are investigating when the emergency arises. [Citation.] It6 requires only ‘an objectively reasonable basi s for believing,’ [citation], that ‘a person within [the house] is in need of immediate aid.’ [Citation.]” ( Michigan v. Fisher (2009) 558 U.S. 45, 47 ( Fisher ).) “Officers do not need ironclad proof of ‘a likely serious, lifethreatening’ injury to invoke the emergency aid exception.” ( Id. at p. 49.) U.S. v. Bradley (9th Cir. 2003) 321 F.3d 1212 ( Bradley ) is instructive. In Bradley , the police officers stopped the defendant while he was driving with his girlfriend at 1:00 a.m., and they arrested them for possession of methamphetamine. ( Id. at p. 1213.) Based on a prior incident involving the defendant, one of the officers asked the defendant’s girlfriend, who also lived with the defenda nt, where her nine-year-old son was. ( Ibid. ) She replied that he was home with a friend. ( Ibid. ) However, no one responded to the officers’ knocking on the door to their residence. ( Id. at p. 1214.) The officer then asked her again where her son was, and she rep lied that he was with a neighbor. ( Ibid. ) When the neighbor did not know wher e the child was, th e officers opened an unlocked back door to the residence, announced them selves, and entered the residence. ( Ibid. ) The child then came out of a front room. ( Ibid. ) While an officer esco rted the child to his bedroom to get dressed, the officer observe d hypodermic needles an d a cash register belonging to a gun store. ( Ibid. ) Bradley held that the emergency aid doctrine justified the officers’ entry into the residence. ( Id. at p. 1215.) Similarly, here, the officers acted r easonably under the circumstances. The officers were responding to a report of a disturbance between a man and a woman on the floor where defendants lived. While speakin g with the officers, Williams was “very apprehensive” and evasive ab out her knowledge of the di sturbance. Tiphayachan
concluded that she was under the influence of heroin based on her demeanor and the intravenous drug marks on her arms and neck, and thus he had probable cause to arrest her. He then learned that her husband and four-y ear-old child were also in the apartment. Based on his experience and training, the o fficer was concerned that drugs and needles7 posed a danger to this very y oung child. Thus, the officers entered the apartment to avoid serious injury to the child. Relying on People v. Brown (1989) 210 Cal.App.3d 849 ( Brown ), Chavez argues that the warrantless entry cannot be justif ied by Tiphayachan’s be lief that Williams was
under the influence of heroin. Brown is inapposite. In that ca se, the police received a tip that drug trafficking was occu rring in an apartment. ( Id. at p. 853.) While the officers were speaking to the tenant of the apartment, a woman, who was under the influence of a stimulant, left a back bedroom. ( Ibid. ) After the officers arrested the woman, the tenant told them that he sublet the back bedroom to the defendant. ( Id. at p. 854.) One of the officers heard voices in that room, but the tena nt told him that no one else was present in the apartment and he could look. ( Ibid. ) The officer then opened the door to the back bedroom, saw drugs and drug pa raphernalia, and discovered that the voices were coming from a television and a radio. ( Ibid. ) Brown held that the initial entry was not justified by exigent circumstances. ( Id. at p. 856) In Brown , there were no facts even suggesting
that someone needed th e officers’ assistance. Here, how ever, the officers were concerned about the safety of a four-yea r-old child whos e mother was under the influence of heroin
and had been evasive with the officers in discussing the neighbor’s concerns.
United States v. Gooch (9th Cir. 1993) 6 F.3d 673 also does not assist Chavez. In
Gooch , the police received a report that the defendant was “ ‘hur ting people’ ” in a campground between midnight and 2:00 a.m. ( Id. at p. 676.) When the officers arrived at the campground at daylight , the campground was quiet. ( Ibid. ) Without seeking a warrant, they ordered the defendant out of his tent and arrested him. ( Ibid. ) After speaking with the defendant and his companion, they searched the tent without a warrant and found a handgun. ( Ibid. ) Reasoning that there was no actual ongoing threat, the
Gooch court held that the district court did not err in concluding that there were no exigent circumstances justifying a wa rrantless arrest or seizure. ( Id. at p. 679.) Unlike in8 Gooch , here, a very young child was present in an apartment in which his mother had recently engaged in intravenous drug use, and thus there wa s an ongoing threat to him. 5
Chavez also asserts that the officers “could have alleviated their concerns by requesting that the child be brou ght to the door by on e of the other occupants.” First, the
issue is whether the officer acted reasonably under the circumstances, not whether there
were other reasonable courses of action. Second, had the officers requested that the child be brought to the door by Chavez or Lindley, the officers would have determined that they were also under the influence of a c ontrolled substance and a rrested them. Given that the child would then be without any adu lt supervision, the officers would have been required to enter the apartment to find hi s pants before taking him into protective custody.
Chavez next contends that even if th e initial entry by Tiph ayachan and Marinelli was legal, Velasquez’s subsequent entry to c ontact the child was not. He argues that since Tiphayachan had observed that the child was in no danger, Velasquez had no
reason to enter the residence to locate him. He also claims that the officer had no reason
to enter the bathroom. Even assuming that Velas quez knew of Tiphayachan’s obs ervations that the child was safe, there was no violation of the Fourth Amendment. Prior to her entry into the bedroom, the three adult occupants were being detained for being under the influence of a controlled substance. Lindley then told Velasquez that there were needles in the bedroom but would not give an exact loca tion. Though Chavez said that the child was not near the needles, his comment was not helpful because no one knew wh ere the child was at that point. Under these circumstances, Velasqu ez had “ ‘an objectively reasonable basis for

5 People v. Werner (2012) 207 Cal.App.4th 11 95 is also inapposite. Werner held that a warrantless entry into the defendant ’s residence was not justified under the protective sweep doctrine. ( Id. at pp. 1209-1210.) The pr esent case did not involve a protective sweep by the officers.9 believing,’ [citation], that ‘a person within [the house] is in need of immediate aid.’ [Citation.]” ( Fisher , supra , 558 U.S. at p. 47.) As Vela squez was helping the child get dressed, she saw blood on the floor through th e open bathroom door. Thus, the officer’s entry into the bathroom was reasonably nece ssary to determine whether there was an additional crime victim. ( Ibid. ) In sum, the trial court did not err by denying the motions to suppress evidence. 6

III. Disposition
The orders are affirmed.

_______ ____________ ____________ Mihara, J.

WE CONCUR:

________________ ______________ Premo, Acting P. J.

________________ ______________ Grover, J.

6 Since we have concluded that the tr ial court properly denied the motions to suppress under the emergency aid exception to the warrant requirement, we need not consider whether Williams consented to the o fficers’ initial entry into the apartment.