Filed 1/17/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 

 Plaintiff and Respondent,

v.

WILLIE OVIEDA, 

 Defendant and Appellant.

2d Crim. No. B277860

(Super. Ct. No. 1476460)

(Santa Barbara County)

Over 50 years ago, wise and prescient Chief Justice 

Phil Gibson planted the judicial seed for what we now call the 

“community caretaking” exception to the Fourth Amendment. 

We apply it here. (People v. Roberts (1956) 47 Cal.2d 374, 379-

380 (Roberts); see also People v. Ray (1999) 21 Cal.4th 464, 471

(Ray).) 

Willie Ovieda appeals his conviction by plea to 

manufacturing concentrated cannabis (Health & Saf. Code, 

§ 11379.6, subd. (a)) and possession of an assault weapon (Pen. 

Code, § 30605, subd. (a)), entered after the trial court denied his 

motion to suppress evidence (Pen. Code, § 1538.5). Pursuant to a 

negotiated plea, probation was granted with 180 days county jail 

and outpatient mental health treatment. 

Appellant contends his Fourth Amendment rights 

were violated when officers, in responding to a 911 call that he

was about to shoot himself, made a “cursory search” of appellant’s 
2

residence to make sure no one was hurt and no firearms were 

lying about.1 The trial court factually found that the search was 

a reasonable exercise of the officers’ community caretaking duty. 

We affirm because there is no reason to apply to the exclusionary 

rule. As we shall explain, the instant entry and “cursory search” 

had nothing to do with the gathering of evidence to support a

criminal prosecution. This is, of course, the lynchpin for 

application of the exclusionary rule. When a person 

unsuccessfully attempts suicide in his residence with a firearm, 

and thereafter comes outside, the police may enter the residence 

to perform a “cursory search” pursuant to their “community 

caretaking” duty. 

Facts and Procedural History

On the evening of June 17, 2015, appellant’s sister 

told a 911 operator that appellant was threatening to kill himself 

and had attempted suicide before. Santa Barbara Police Officer 

Mark Corbett responded to the 911 call. A second officer 

telephoned Trevor Case inside the house. Case was appellant’s 

friend. Case went outside and reported that appellant had 

threatened to commit suicide and tried to grab several firearms 

in his bedroom. Case and his wife had to physically restrain 

appellant to keep him from using a handgun and a rifle to kill 

himself. Case’s wife pinned appellant down as Case searched the 

bedroom for other firearms. Case moved a handgun, two rifles, 

and ammunition to the garage but did not know whether 

appellant had additional firearms or weapons in the house. 

Appellant agreed to come outside, was detained, and 

falsely denied having made suicidal comments or that he had any

 

1 This phrase, “cursory search,” is coined by Chief Justice 

Gibson. (See infra, p. 8.)
3

firearms. Appellant said he was depressed because a friend 

committed suicide the week before. Officer Corbett described the 

situation as “emotional and dynamic.” He believed a cursory 

search was necessary because it was unknown how many more 

weapons were in the house, whether the weapons were secure, 

and whether anyone inside the house needed help. It was a 

concern because the person who made the 911 call, appellant’s 

sister, was not at the scene and the officers did not know 

anything for sure. Officer Corbett believed he was “duty bound”

to make a safety sweep to make sure no one inside was injured or 

needed medical attention. A second officer, Officer Daniel Garcia, 

agreed a safety sweep was necessary to confirm that; 1. there

were no other people in the house; 2. nobody else was hurt; and 3.

there were no dangerous weapons or firearms left out in the open. 

Officer Corbett and a second officer made a cursory 

sweep of the house and saw, in plain view, a rifle case,

ammunition, magazines, and equipment to cultivate and produce 

concentrated cannabis. 

There was a large, industrial drying oven with tubes, 

wires, and ventilation ducts that led to the garage, as well as 

marijuana and concentrated cannabis in plain view. Based on 15 

years in narcotics-related investigations, Officer Corbett believed 

the marijuana lab posed an immediate danger because

manufacturing concentrated cannabis is “a volatile process that 

involves heat and when mistakes are made explosions and fires 

can occur.” 

Inside the garage, officers saw three rifles and a 

revolver in a tub. Two rifles were automatic or semi-automatic 

assault rifles that Officer Corbett believed were illegal. The 

officers also found four high capacity magazines for an assault 
4

style weapon, a firearm silencer, a long range rifle with a scope, 

more than 100 rounds of ammunition, equipment for a hash oil 

laboratory, butane canisters, miscellaneous lighters and burners, 

a marijuana grow, and a bucket filled with marijuana shake. 

The firearms included a .50 caliber rifle, an Uzi sub-machine gun, 

a .357 caliber revolver, a pistol-grip 12 gauge shotgun, and a .223 

caliber sub-machine gun. 

Appellant brought a motion to suppress evidence. 

The prosecution argued that the entry into appellant’s residence

was justified under the community caretaking exception and the 

protective sweep doctrine.2 The trial court ruled that the 

community caretaking exception is “what guides the Court’s 

decision” and denied the motion to suppress evidence. The trial 

court found the officers’ testimony credible as to “what they were 

concerned about and what they didn’t know. And so I [find] it 

credible that they wanted to remove firearms, they didn’t know if 

there were others in the residence, either victims or other people 

who might cause a harm.” It expressly found that the officers 

were “not required to accept Mr. Case’s word that he removed the 

firearm that Mr. Ovieda had reached for. . . . And I believe under 

these circumstances that the officers would be subject to 

criticism, in fact, if anything had occurred that they would be 

judged neglectful in not entering the residence and doing what 

was described as quick search, . . . looking in closets, looking for 

other people, and looking for other weapons.” 

 

2 On appeal, the Attorney General concedes that the 

protective sweep doctrine, which is typically made in conjunction 

with an in-home arrest, does not apply. (See Maryland v. Buie 

(1990) 494 U.S. 325, 337.) The Attorney General also conceded at 

oral argument that under the circumstances here, a search 

warrant could not issue. 
5

Community Caretaking Exception 

Appellant argues that the entry into his residence

violated the Fourth Amendment. On review, we defer to the trial 

court’s express and implied factual findings which are supported

by substantial evidence and determine whether, on the facts so 

found, the search was reasonable under the Fourth Amendment. 

(E.g., People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial 

court’s express factual findings are fatal to this appeal. 

In Ray, supra, 21 Cal.4th 464, our Supreme Court 

stated that the community caretaking exception to the Fourth 

Amendment permits police to make a warrantless search of a 

home if the search is unrelated to the criminal investigation 

duties of the police. (Id. at p. 471.) “Upon entering a dwelling, 

officers view the occupant as a potential victim, not as a potential 

suspect.” (Ibid.) “Under the community caretaking exception, 

circumstances short of a perceived emergency may justify a 

warrantless entry” to preserve life or protect property. (Id. at 

p. 473.) Officers are expected to “‘“aid individuals who are in 

danger of physical harm,” “assist those who cannot care for 

themselves,” “resolve conflict,” . . . and “provide other services on 

an emergency basis.” . . .’ [Citation.]” (Id. at p. 471.) 

Such is the case here. Officer Corbett responded to 

the 911 call to help a suicidal person. The cursory search had 

nothing to do with a criminal investigation and no one claims the 

911 call was a ruse or subterfuge to gain entry and search for 

evidence of a crime. “‘[C]ommunity caretaking’ . . . , [is] ‘totally 

divorced from the detection, investigation, or acquisition of 

evidence relating to the violation of a criminal statute.’ 

[Citation.]” (Colorado v. Bertine (1987) 479 U.S. 367, 381.) 
6

Appellant argues that Ray has no binding 

precedential value because it is only a plurality opinion. (See, 

e.g., People v. Karis (1988) 46 Cal.3d 612, 632.) He contends the 

officers were required to leave when appellant denied that he was 

suicidal. The argument is premised upon the theory that a 

suicidal person has the Second Amendment right to possess and 

bear firearms and that officers responding to a 911 call that 

someone is threatening suicide must leave when the person

comes outside and says there is no problem. We assess the 

reasonableness of the officer’s actions at the time they undertook 

them. 

Officer Corbett responded to a 911 call from a 

concerned family member that appellant was about to take his 

life and had attempted suicide before. Appellant’s friend, Trevor 

Case, confirmed that appellant tried to reach for a firearm and 

shoot himself. Case feared that appellant would try to hurt 

himself and that there were other weapons or firearms in the 

house. There was an on-going safety concern because appellant 

lied about the firearms and his suicidal ideation. Appellant was 

detained and handcuffed. By his actions, appellant put himself 

at risk, his friends at risk, and the responding officers at risk. 

(Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 271 [Police 

officers providing assistance at the scene of a threatened suicide 

must concern themselves with more than simply the safety of the 

suicidal person. Protection of the physical safety of the police 

officers and other third parties is paramount]; see also Allen v. 

Toten (1985) 172 Cal.App.3d 1079, 1089, fn. 8.)

As discussed in Ray, “‘[o]ne is privileged to enter or 

remain on land in the possession of another if it is or reasonably 

appears to be necessary to prevent serious harm to . . . the other 
7

or a third person, or the land or chattels of either . . . .’ 

[Citations.]” (Ray, supra, 21 Cal.4th at p. 474.) It matters not 

whether a police officer, a fireman, an ambulance driver, or a 

social worker responds to the suicide call. As a matter of common 

sense, it would be anomalous to deny a police officer charged with 

protecting the citizenry the privilege accorded every other 

individual who intercedes to aid another or protect another’s 

property. (Ibid.) “‘A warrantless entry of a dwelling is 

constitutionally permissible where the officers’ conduct is 

prompted by the motive of preserving life and reasonably appears 

to be necessary for that purpose. [Citations.]’” (Ibid.)

Pursuant to the community caretaking exception, 

police officers are expected to check on the welfare of people who 

cannot care for themselves or need emergency services. (Ray,

supra, 21 Cal.4th at pp. 471-472.) “The policeman, as a jack-ofall-emergencies, has ‘complex and multiple tasks to perform in 

addition to identifying and apprehending persons committing 

serious criminal offences’; by default or design he is also expected 

to ‘aid individuals who are in danger of physical harm,’ ‘assist 

those who cannot care for themselves,’ and ‘provide other services 

on an emergency basis.’ If a reasonable and good faith search is 

made of a person for such a purpose, then the better view is that 

evidence of crime discovered thereby is admissible in court.” (3 

LaFave, Search and Seizure (5th ed. 2012) § 5.4(c), pp. 263-264, 

fns. omitted.)

Appellant contends that the community caretaking 

rule does not apply to residential searches. Surely a police officer 

may enter a residence to protect a suicidal person and secure the 

premises if firearms are believed to be present. (See, e.g., 

Brigham City v. Utah (2006) 547 U.S. 398, 400, 403 [officer may 
8

enter home without a warrant to render emergency assistance to 

an injured occupant or to protect occupant from imminent 

injury].) The officers had a duty to prevent the possibility that 

the firearms “would fall into untrained or . . . malicious hands.” 

(Cady v. Dombrowski (1973) 413 U.S. 433, 443.)

When it comes to choosing between the Fourth 

Amendment protection against warrantless searches and the 

preservation of life, the preservation of life controls. That was 

decided more than 50 years ago in Roberts, supra, 47 Cal.2d 374. 

There, officers were told that a suspect living in an apartment 

had missed work and was sickly. (Id. at p. 378.) After knocking 

on the door and receiving no response, the officers heard moans 

and groans that sounded like a person in distress. (Ibid.) The 

officers believed someone needed emergency assistance, made a 

warrantless entry, and saw a stolen radio on the kitchen table 

that resulted in defendant’s arrest for second degree burglary. 

Defendant argued that his Fourth Amendment rights were 

violated. The officers, however, believed a person in distress was 

inside the apartment and needed help. (Id. at pp. 378-379.) 

When asked about the moaning sounds, the officers said “‘it could 

be pigeons, pigeons moan. There are pigeons in the area.”’ (Id. at 

p. 378.) 

 Chief Justice Gibson wrote: “Necessity often 

justifies an action which would otherwise constitute a trespass, 

as where the act is prompted by the motive of preserving life or 

property and reasonably appears to the actor to be necessary for 

that purpose. [Citations.]” (Roberts, supra, 47 Cal.2d at p. 377.) 

In the course of conducting a cursory search, officers do “not have 

to blind themselves to what was in plain sight simply because it 
9

was disconnected with the purpose for which they entered. 

[Citations.]” (Id. at p. 379.)

Similarly, in People v. Payne (1977) 65 Cal.App.3d 

679, a reliable informant reported that appellant was molesting 

children in a garage bedroom. (Id. at p. 681.) Officers saw a 10 

to 12 year old boy enter the garage, were concerned that 

appellant would harm the boy, forced their way into the garage 

bedroom, and found a partially dressed boy on a bed in the 

garage. (Id. at p. 682.) Citing Roberts, the Court of Appeal held 

that the victim’s “‘right to physical and mental integrity [simply] 

[outweighed] the right of [appellant] to remain secure in his 

domestic sanctuary . . . .’ [Citation.]” (Id. at p. 684.)

The rules and rationale of Ray, Roberts and Payne

dictate affirmance here. There, the officers were conducting 

criminal investigations. Here, they were not. This entry was a 

pure community caretaking entry and a fortiori, the community 

caretaking rule applies with more persuasive force.

The community caretaking rule is alive and well. So 

is appellant because he was saved by the intervention of friends 

and the police who confiscated his firearms. Principles of stare 

decisis require that we follow Ray and Roberts. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To say 

that the officers were required to get a warrant before entering 

the house and garage would be at variance with common sense 

and violative of the letter and spirit the “community caretaking” 

rule. “There is no war between the Constitution and common 

sense.” (Mapp v. Ohio (1961) 367 U.S. 643, 657.)

Response to Dissent

The dissent’s bright line rule unreasonably stifles a 

police officer’s duty to proactively keep the peace for everyone in 
10

the community. The presenting situation posed an extreme 

danger for appellant, his friends, the police, and the neighbors. A 

literal and mechanical application of the letter of the Fourth 

Amendment would require the officers to walk away from 

appellant’s doorstep. But the courts must consider the reason for

the exclusionary rule. Traditionally, the premise of the 

exclusionary rule is that it applies only if the police are enforcing 

the criminal law, i.e., they are entering a residence to search for 

evidence of crime. That did not happen here. 

Here, the officers did not fully comprehend what was 

confronting them when they entered appellant’s residence. Police 

officers have a healthy skepticism about what they are told in a 

volatile situation preferring to conduct their own investigation. 

Here, they wanted to safeguard everyone and they wanted to 

separate appellant from his firearms. As factually found by the 

trial court, they were not required to believe that there was no 

one in the house and that the firearms were secured. Should 

they be allowed to enter a residence and defuse a “powder keg”

waiting to explode when appellant would return to his residence? 

The answer is “yes.” Loaded firearms are inherently dangerous 

as a matter of law and even though it is constitutionally 

permissible to possess them in a residence, it is quite another 

thing to allow them to remain in the possession of a suicidal 

person. Our holding does not give the police carte blanche to 

indiscriminately enter a residence on whim or caprice. Where, as 

here, a defendant threatens to kill himself with a firearm in his 

house, he is in a poor posture to claim that the police may not 

enter it to safeguard everyone even if he is coaxed out of the 

house prior to entry. 
11

The dissent acknowledges that “had” the officers 

believed appellant was a danger to himself, they could have 

confiscated his firearms. (Dissent at p. 6) The record does not 

expressly show that the officers believed this to be the case 

because no one asked the question. But the inference that they 

entertained this belief is a reasonable inference. Suicidal persons 

are a danger to themselves. Every peace officer knows this. The 

only reason that appellant was not taken to a mental health 

facility was because, thereafter, probable cause developed for his 

arrest. 

As Justice Gilbert said in his dissent in Unzueta v 

Ocean View School Dist. (l992) 6 Cal.App.4th 1689, 1705: “A 

mechanical, literal interpretation of the statute [or here, the 

Fourth Amendment] in the lifeless atmosphere of a vacuum 

creates a result contrary to public policy, contrary to legislative 

intent [or Constitutional intent], contrary to common sense, and 

contrary to our shared notions of justice.” We agree with the trial 

court that the officers would have been subject to criticism if they 

had not separated appellant from his firearms. 

Disposition

The judgment (order denying motion to suppress) is 

affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

I concur:

GILBERT, P. J.
1

PERREN, J., Dissenting.

I respectfully dissent.

Chief Justice Gibson’s “judicial seed” will not blossom 

in this fallow field. 

Freedom from unreasonable government intrusion is 

at the core of the Fourth Amendment, which “draws ‘a firm line

at the entrance to the house.’” (Kyllo v. United States (2001) 533 

U.S. 27, 31, 40.) “‘[P]hysical entry of the home is the chief evil 

against which . . . the Fourth Amendment is directed.’ [Citation.] 

And a principal protection against unnecessary intrusions into 

private dwellings is the warrant requirement imposed by the 

Fourth Amendment.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 

748.) “[S]earches and seizures inside a home without a warrant 

are presumptively unreasonable.” (Payton v. New York (1980) 

445 U.S. 573, 586.)

Relying on a “community caretaking” theory, the 

majority approves a warrantless intrusion into a home based 

solely upon police speculation about what they “could” find inside. 

The officers admittedly had no information that anyone, child or 

adult, was inside the house and required help. Indeed, everyone 

reported to be in the house was outside and completely under the 

officers’ control, including the person they came to rescue, 

appellant Ovieda. The officers did not believe that appellant was 

a danger to himself or others. Because the officers had no 

objectively reasonable belief that searching the home was 

imperative, I conclude that the trial court should have granted 

appellant’s motion to suppress evidence seized during the search. 

The facts of this case are undisputed. A caller 

informed police that appellant was at home and suicidal, but had 

been disarmed by two friends who were with him. Officers 
2

surrounded the home. At their request, and accompanied by his 

friends, appellant voluntarily came outside, was frisked and 

promptly handcuffed. He was unarmed. He denied suicidal 

thoughts or having guns. The officers were told that one of the 

friends had moved guns into the garage. Although the officers 

had no reason to believe that anyone was in the house, two of 

them entered the home with guns drawn to conduct, in their 

words, a “protective sweep to secure the premises.” Inside, they 

found illegal weapons and a cannabis oil lab.1

On these facts, the search was unreasonable under 

any theory, whether it be “community caretaking,” “emergency 

aid” or “exigent circumstances.” At the time of the search, the 

situation was stabilized, appellant was restrained, and everyone 

reported to have been in the house was outside and unharmed. 

The officers had no information that anyone was in the house nor 

did they suspect that a crime had been committed. Therefore, the

police could not lawfully enter and search the premises absent 

consent or a search warrant.

Supreme Court cases authorizing police entry into a 

house without a warrant in an emergency are circumscribed by 

their facts. As I explain below, this case does not resemble the 

type of emergency or exigency that would justify a warrantless 

entry.

First, an emergency justifying the entry and search 

of a home may arise when objective evidence leads police to 

believe that they must render immediate aid because a person 

inside is injured or in distress. 

 

1 The majority’s statement of facts focuses on what the 

officers found. The officers should not have been inside of 

appellant’s house in the first place.
3

In a factually distinguishable case relied upon by the

majority, People v. Roberts (1956) 47 Cal.2d 374, 376, 378, police 

entered the home of someone reported to be “sickly” when they 

“heard several moans or groans that sounded as if a person in the 

apartment were in distress.” The warrantless entry “was lawful 

for the purpose of rendering aid.” (Id. at p. 380.) A report that a 

person is injured and bleeding, coupled with blood stains outside 

the home and a neighbor’s confirmation that an injured person is 

within, justify police kicking in the door to help the person.

(Tamborino v. Superior Court (1986) 41 Cal.3d 919, 921-922, 924-

925.)

The emergency aid theory applies when the police see 

shooting victims outside of a house, and believe that injured 

persons inside the house require immediate intervention. In 

People v. Troyer (2011) 51 Cal.4th 599, 607-609, 612, police 

responding to a report of shots fired found badly injured people 

on the porch of a home and blood on the front door, a clear 

emergency that justified immediate entry into the home to look 

for additional victims or a suspect. The court recognized the 

right of the police to enter without a warrant, given their

objectively reasonable belief that an occupant was seriously 

injured. After a shooting victim was brought to a hospital, as 

described in People v. Hill (1974) 12 Cal.3d 731, 754-755, officers 

found fresh bloodstains on the porch, fence and auto outside a 

house and saw blood on the floor inside the house, an exigency 

justifying an entry to locate wounded persons, because waiting 

for a warrant could have resulted in the loss of life. 

Here there was no such evidence. At the time of this 

search, no one was in appellant’s house moaning and groaning, 

no gunshots were reported, and no bloodstains were seen. 
4

Instead, appellant was outside of his house, unarmed and 

unharmed. There was no justification for the officers to enter 

appellant’s house to render aid.

Second, an emergency may arise if police believe 

that a crime is in progress in a house. In People v. Ray (1999) 21 

Cal.4th 464, police responded to a report that Ray’s front door 

was open and the inside was in shambles. On arrival, officers 

found the scene as described; believing that a burglary was in 

progress or just took place, they entered to look for possible 

victims. Using a “community caretaking” theory, the state 

Supreme Court emphasized that police authority to enter is 

narrowly limited by the need to ascertain whether someone in the 

house is in need of assistance and to provide that assistance. (Id. 

at p. 477.) No such facts were present in this matter. 

In Brigham City v. Stuart (2006) 547 U.S. 398, 406, 

the U.S. Supreme Court allowed a warrantless entry when police 

saw a violent fracas inside a house; officers could enter to rescue

a bleeding occupant and stop the violence. In Michigan v. Fisher 

(2009) 558 U.S. 45, police responding to reports of a domestic 

dispute saw the defendant inside his house with a cut on his 

hand, screaming and throwing things, and blood on his front door 

and his car; in the Court’s view, the police had an objectively 

reasonable belief that the defendant might be harming a child or 

spouse, or would hurt himself in his rage. This danger justified 

an immediate entry without a warrant and did not bar use of 

evidence obtained during the entry. (Id. at pp. 48-49.)

Here, the police did not see a crime or altercation 

unfolding inside the house before entering, nor did they believe 

that a crime had just taken place. Instead, they telephoned 

appellant inside the house and asked him to walk outside. He 
5

complied. Afterward, they searched the house. No immediate 

warrantless entry was justified once appellant was outside. 

Third, the police may enter a house in an emergency 

to detain a suicidal person inside the house for a mental 

evaluation. The key to cases involving a potential suicide at a 

home is a pressing need for police to act but no time for them to 

secure a warrant. For example, in Sutterfield v. City of 

Milwaukee (7th Cir. 2014) 751 F.3d 542, police entered a home to 

detain a woman for a mental evaluation after she remarked to 

her psychiatrist, “‘I guess I’ll go home and blow my brains out.’” 

(Id. at p. 545.) The court concluded that the officers had to act

expeditiously by forcing entry during the unfolding crisis. (Id. at 

p. 566.) 

In Fitzgerald v. Santoro (7th Cir. 2013) 707 F.3d 725, 

728-729, officers forced a warrantless entry into the home of an 

apparently suicidal person to seize her for a mental evaluation.

The entry was deemed justified based on exigent circumstances, 

because the officers objectively and reasonably believed when 

they entered the home that the occupant was in need of 

immediate assistance. (Id. at pp. 731-732.) A person with a gun 

who is threatening suicide may be frisked in the doorway of his 

home, to preserve the safety of everyone present. (United States 

v. Wallace (5th Cir. 1989) 889 F.2d 580, 582, citing Terry v. Ohio

(1968) 392 U.S. 1, 23.)

Here, the officers—who had no reason to believe that 

an injured, endangered or suicidal person was in the house—

entered to conduct a “protective sweep.”2 The People’s postsearch rationale of “community caretaking” is entirely 

unsupported by this record. Appellant was standing on the 

 

2 An inapt theory that the People abandoned on appeal.
6

sidewalk in handcuffs. The others known to be in the house were 

also outside. The emergency was over: the police were not 

justified in their search of appellant’s home—whether cursory or 

detailed—without his consent or a search warrant. (See State v. 

Hyde (N.D. 2017) 899 N.W.2d 671, 677 [police alerted to a 

possibly suicidal person by his relatives could not enter his house 

without a warrant because they lacked a reasonable basis to 

believe there was an ongoing emergency or immediate need to 

protect his life].) 

Had police believed that appellant was a danger to 

himself or others they would have been justified to take him into 

custody. (Welf. & Inst. Code, §§ 5150 et seq. [police may take into 

custody someone who is gravely disabled or a danger to himself 

or others, for an assessment, evaluation and crisis intervention].) 

State law provides a detailed mechanism for seizing weapons if

the police believed that someone is “5150.” The police may 

confiscate weapons belonging to persons detained for a mental 

health evaluation. (Welf. & Inst. Code, § 8102; City of San Diego 

v. Boggess (2013) 216 Cal.App.4th 1494, 1500 [“Section 8102 

authorizes the seizure and possible forfeiture of weapons 

belonging to persons detained for examination under section 5150 

because of their mental condition”].) A detention to evaluate a 

person’s mental condition permits the issuance of a search 

warrant to seize firearms. (Pen. Code, § 1524, subd. (a)(10).) 

The police did not invoke these justifications to 

search appellant’s home or seize his guns. The majority infers 

that the officers believed appellant to be a danger to himself. 

(Maj. opn. ante, at p. 11.) Tellingly, however, neither the 

prosecutor nor the Attorney General argued that the police 

detained appellant because they felt he was a danger to himself 
7

or others and intended to transport him to a mental health 

facility pursuant to the Welfare and Institutions Code. The 

inference drawn by the majority is not supported by the record or 

by arguments offered in the trial court or on appeal.

Mere possession of guns is not a valid reason to 

search a home, unless the police determine that the gun owner 

must be detained for a mental health evaluation. Citizens may 

possess guns in their homes. (District of Columbia v. Heller 

(2008) 554 U.S. 570, 635.) The Attorney General argues that 

officers entered the home to merely “secure” appellant’s guns, 

although it is not clear how they could achieve that without 

“seizing” the guns. The trial court “found it credible that they 

wanted to remove firearms.” But the officers did not believe that 

appellant posed a danger to himself or others; it follows that their 

seizure of his guns was unauthorized.

The majority adopts the Attorney General’s 

reasoning, asking rhetorically, “Surely a police officer may enter 

a residence to protect a suicidal person and secure the premises if 

firearms are believed to be present.” (Maj. opn. ante, at p. 7.) 

The answer is “Yes” if the armed person is inside the residence 

and the police must enter to take the person into custody for a 

mental health evaluation. This strawman analysis fails, 

however, because appellant was outside of his house and not 

believed to be a danger to himself or others. 

The sole justification offered by police for the entry 

was to check for people who might be present or injured. But 

everyone reported to be in the house was outside and accounted 

for. While officers could have sought appellant’s permission to 

enter, they did not. While they could have detained appellant for 

evaluation at a mental health facility and sought a search 
8

warrant to seize his weapons, they did not. (Pen. Code, § 1524, 

subd. (a)(10).) Nonetheless, they entered to search. Based on the 

facts known to them at the time, they could not.

Under an objective standard of reasonableness, the 

police could not lawfully search appellant’s home. At the time of 

the search, appellant was standing outside the house in 

handcuffs, being interviewed by the police. The exigency that 

brought the police to appellant’s home—his threatened suicide—

was fully controlled before the search took place.

There is no showing that anyone was in imminent 

danger in the house so as justify an immediate, warrantless 

entry. The police had no information that an injured spouse or 

hidden child required aid. The occupants came outside before the 

search, in direct response to the police request that they do so. 

Officer Garcia testified that “we didn’t have any specific 

information at the time that . . . there was someone in there.” 

Officer Corbett’s testimony that “there could be a child” or “there 

could be somebody injured” was pure speculation. Police action 

cannot be justified by what they did not know, or on a hunch or 

unparticularized suspicion. (Terry v. Ohio, supra, 392 U.S. at 

p. 27; People v. Block (1971) 6 Cal.3d 239, 244.)

The totality of the circumstances in the present 

matter did not present an emergency justifying a warrantless 

entry. The officers were not faced with a tense, uncertain or 

evolving situation at the time of the search. No gunshots were 

reported before their arrival. They knew that appellant had been 

armed with a gun and were entitled to handcuff and frisk him 

when he walked outside and approached them, to preserve their 

safety and that of third parties. At that point, the need for the 

police to render emergency aid ceased. 
9

Theories of “community caretaking,” “emergency aid,” 

or “exigent circumstances,” are inapposite on this record. The 

police had no information that anyone was in the home let alone 

someone who needed immediate assistance or protection, no

weapons were accessible to the handcuffed Ovieda, and no crime 

was committed or in progress. Any emergency that might 

mandate swift action—without a search warrant to prevent 

imminent danger to life—ended when appellant voluntarily came 

out of the house, along with the friends who were assisting him. 

The majority speculates that the police entered 

appellant’s home to seize his guns and save his life, because he 

might have shot himself once they left. The officers did not 

articulate any such fear for appellant’s safety during the 

suppression hearing. 

I do not question the officers’ motives, honesty or 

sincerity. Their conduct, however, is circumscribed. In this 

situation, where a crisis has been averted, the officers have 

options: (1) they can seek consent to search; (2) they can seek a 

search warrant if the person’s mental health is so deteriorated 

that he presents a danger to himself or others; or (3) they can 

wait to see how or if the situation evolves. If the person’s ensuing 

conduct causes concern for his safety or the safety of others, they 

could seek a search warrant. The burden is on the State to 

demonstrate justification for the search. It has failed to do so. 

The theme of the majority is that the police had to 

act. The officers’ collective lack of information that anyone was 

in jeopardy, that anyone was upon the premises or that anyone 

was injured or in peril belies the state’s theory. Ignorance of a 

fact, without more, does not raise a suspicion of its existence. 

The protection afforded by the Constitution would be sorely 
10

compromised if what is not known or reasonably suspected would 

suffice for probable cause. I conclude the police could not lawfully 

enter and search the premises absent consent or a search 

warrant. The search was unlawful under both the State and 

Federal Constitutions. Appellant’s motion to suppress evidence 

should have been granted. (Pen. Code, § 1538.5.)

CERTIFIED FOR PUBLICATION

PERREN, J.
Jean M. Dandona, Judge

Superior Court County of Santa Barbara

______________________________

Law Offices of Elizabeth K. Horowitz, under 

appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Senior 

Assistant Attorney General, Kenneth C. Byrne, Supervising 

Deputy Attorney General, Andrew S. Pruitt, Deputy Attorney 

General, for Plaintiff and Respondent.