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. B27 7860 (Super. Ct. No. 1476460) (Santa Barbara County)

Over 50 years ago, wise and prescient Chief Justice
Phil Gibson p lanted 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 possessio n 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 vio lated when officers, in responding to a 911 call that he was about to shoot himself, made a “ cursory search ” of appellant’s2

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 a pply to the exclusionary
rule. As we shall explain, the instant entry and “curso ry 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 t hereafter 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

t ele phoned 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 se veral firearms
in his bedroom. Case and his wife had to physically restrain appellant to keep him from us ing a handgun and a rifle to kill
himself

. Case’s wife pinned appellant down as Case searched t he
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
false ly 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

comm itted suicide the week before. Officer Corbett described the situation as “emotional and dynamic

. ” He believed a cursory
search was necessary because it w as unknown how many more

weapons were i n the house, whether the weapons were secure, and whether anyon e inside the house needed help. It was a concern because the person who made the 911 call , appellant’s sister, was not at the scen e 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 injure d or
needed medical attention. A second officer, Officer Daniel Garcia, agreed a safety sweep was necessary to confirm that ; 1. t here 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 concentra ted 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 fo r an assault4

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 buck et filled with marijuana shake. The firearms included a .50 caliber rifle, a n 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 pro secution 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 de nied the motion to suppress evidence. The trial

cou rt 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
thes e circumstances that the officers would be subject to criticism, in fact, if anything had occurred that the y would be judged neglectful in not entering the residence and doing what
was de scribed as quick search, . . . looking in closets, looking for
other people, and looking for other weapons.”

2 On appeal, the Attorney Genera l 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 circumstance s here, a search warrant could not issue.5 Community Caretaking Exception Appellant argues that the entry into his residence
violated the Fourth Amendment. On revi ew, 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 R ay , supra , 21 Cal.4th 464 , our S upreme C ourt 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. a t p. 471.) “Upon entering a dwelling, officers view the occupant as a potential victim, not as a po tential suspect.” ( Ibid .) “Under the community caretaking exception, circumstances short of a perceived emergency may justify a
warrantless entr y” to pres erve life or protect property. ( Id. at

p. 47 3.) 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 s ervices 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 subterfug e 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. Bertin e (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 den ied 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
Cas e, 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 w as an on

- going safety concern because appellant
lied about the firearms and his suicidal ideation

. Appellant was
detained and handcuffed . By his actions, a ppellant 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 [P olice 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
offi cers and other third parties is paramount]; see also Allen v.
To t en (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 other7

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 respo nds 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 wher e the officers’ conduct is

promp ted by the motive of preserving life and reasonably appears to be necessary f

or that purpose. [Citations.]’” ( Ibid .) Pursuant to the community car etaking 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

- of

all

- emergencies, has ‘ complex and multiple tasks to perform in addition to identifying and apprehending persons commi tting 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 e d. 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 ar e believed to be present. (See

, e.g., Brigham City v. Utah (2006) 547 U.S. 398, 400, 403 [officer may8

enter home without a warrant to render emergency assistance to an injured occupant or to protect oc cupant from imminent injury].) The officers had a dut y 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

pre servation 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 knock ing 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 tabl e that resulted in defendant’s arrest for second degree burglary. Defendant argued that his Fourth A mendment 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 trespas s, 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, officer s do “not have to blind themselves to what was in plain sight simply because it9

was disconnected with the purpose for which they entered. [Citation s .]” ( Id. at p. 379.)

Similarly, i n People v. Payne (1977) 65 Cal.App.3d 679, a reliable informant reporte d 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 sanct uary

. . . . ’ [Citatio n.]” ( Id. at p. 684.)

The rules and rationale of R ay , R oberts and Payne dictate affirmance here. There, the officers were conducting criminal investigati ons. Here, they were not. This entry was a pure community caretaking entry and a fortiori, the com munity caretaking rule applies with more persuasive force

.

The community caretaking rule is alive and well . S o is appellant because h e was saved by the intervention of friends and the police who confiscated his firearms . Principles of stare decisis requ ire 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 v iolative o f 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 du ty to proactively keep the peace for everyone in10

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 r equire the offic ers to walk away from appellant’s doorstep. But the c ourts must consider the reason for the exclusionary rule. Traditionally, the premise o f 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 ap pellant’ 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 b elieve 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 cart e 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 po sture to claim that the police may not enter it to safeguard everyone even if he is co axed 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 believe d this to be the case because no one asked the question. But the inference that they
entertained this belief is a reasonable inference. S uicidal persons are a danger to the mselves. 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 justic e.” 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

.

Y EGAN, 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.

F ree dom 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 protecti on 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 n o 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 office rs 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 evide nce seized during the search.

The facts of this case are undisputed. A caller informed p olice that appellant was at home and suicidal , but had
been disarmed by two friends who were with him. O fficers2

surrounded the home. A t their request, and a ccompa nied 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 office rs 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 .” In side , they found illegal weapons and a cannabis oil lab. 1

On these facts, t he search was unreasonable under any theory , whether it be “commun ity 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 hou se was outside and unharmed. The officers had no information that anyone was in the hou se nor did they suspect that a crime had been committed. T he refore, the police could not lawfully enter and search the premises absent
consent or a search warrant.

Su preme 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 , a n 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 law ful 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 injur ed 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 recogniz ed the right of the police to enter without a warrant

, given their objectively reasonable belie f that an occupant wa s seriously injured. After a shooting victim was brought to a hospital, as
described i n 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 warr ant 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 , p olic e 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 t oo k place

, they entered to loo k for p ossible
victims

. Using a “co mmunity caretaking” theory, the state Supreme Court emphasized that p olice 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 fact s 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 ent er to rescue a bleeding occupant and stop the violenc e . 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 pol ice 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. He5

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 t o 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, i n Sutterfield v. City of
Milwaukee (7th Cir. 2014) 751 F.3d 542, police entered a home to
detain a woman for a men tal 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 th e 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 gu n who is threatening suicide may be frisk ed in the doorway of his home, to preserve t he 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 n o reason to believe that an injured, endangered or suicidal person was in the house

— ente red to conduct a “protective sweep .” 2 The People’s post

search rationale of “community caretaking” is entirely unsupported by this record. Appellant was standing on the

2 An inapt theory that the People abandoned on appea l.6

sidewalk in handcuffs. The others known to be in the house were
also outside. The e mergency 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 pr ovides 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 evalua tion. (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 conditio n permits the issuance of a search warrant to seize firearms. (Pen. Code, § 1524, subd. (a)(10).)

The police did not invoke these justification s 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 himself7

or others and intended to transport him to a me ntal 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. ( Dist rict 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 da nger 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 pr emises 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 f ails, 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 search8

warrant to seize his weapo ns, 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 ho me. 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.

The re 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 res ponse 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 t here.” 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 circumstanc es 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 report ed before their arrival

. They knew that app ellant had been armed with a gun and were entitled to handcuff and frisk him
when he walked out side and approached them, to preserve their safety and that of third pa rties. 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

. T he police had no information that anyone was in the home let alone someone who needed immediate assistance or protection, no weapons were accessible t o 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 wh o 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 t he 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) the y 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 w ould be sorely10

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 . T he search was unlawful under both the St ate 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.