BIRD, C. J., Dissenting. Does a victim of a crime relinquish the privacy of his home merely because he is injured in the course of a crime committed there? The majority say yes. I must respectfully dissent.
[927]The majority hold that the presence of an injured victim at the scene of a reported robbery, without more, justifies a sweep search of the robbery victim’s dwelling without his consent and without any information as to whether other injured persons are present. The majority do not even require the police to ask an otherwise alert and conscious crime victim whether other injured persons are inside before invading the privacy of his home. Such a complete lack of respect for a crime victim’s privacy rights cannot be justified by either the “common sense” or the “concern for human life” rationales that my colleagues set forth. (See maj. opn., ante, at p. 923.)
In the area of Fourth Amendment guarantees, the courts have a vital obligation in warrantless search cases to ensure that citizens’ rights are not unreasonably invaded by police activity. As this court has recognized, “ ‘We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade [] privacy in order to enforce the law. ... We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. ’ ” (People v. Sirhan (1972) 7 Cal.3d 710, 738 [102 Cal.Rptr. 385, 497 P.2d 1121], original italics, quoting McDonald v. United States (1948) 335 U.S. 451, 456 [93 L.Ed. 153, 158, 69 S.Ct. 191], italics added; see also People v. Block (1971) 6 Cal.3d 239, 244 [103 Cal.Rptr. 281, 499 P.2d 961], citing Terry v. Ohio (1968) 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 88 S.Ct. 1868].)
“Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” (Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2d 290, 298, 98 S.Ct. 2408].) Police claiming a search was properly conducted without a warrant “must be able to point to specific and articulable facts from which [they] concluded that [the] action was necessary. ” (People v. Block, supra, 6 Cal.3d at p. 244, italics added; People v. Carney (1983) 34 Cal.3d 597, 611 [194 Cal.Rptr. 500, 668 P.2d 807], revd. on other grounds (1985) 471 U.S. 386 [85 L.Ed.2d 406, 105 S.Ct. 2066].)
Furthermore, in reviewing such searches, one must keep in mind that “[h]omes are afforded the maximum protection from warrantless searches and seizures. [Citations.] The ‘“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. ” ’ [Citations.]” (People v. Carney, supra, 34 Cal.3d at p. 607.)
[928]In this case, police were investigating a reported robbery at an apartment complex. The dispatch call indicated that the robbery victim was bleeding and standing on the third floor landing of the apartment building. When the officers arrived on the scene, they saw blood spots directly below the third floor landing and on the landing outside the door of petitioner’s apartment.
A neighbor advised the officers that the injured victim was inside the apartment. After knocking and announcing their presence, the officers waited one to two minutes, and, receiving no response, kicked in the door. They then saw petitioner walking barefoot towards the front door. He was bleeding from his head and was clad only in a bathrobe which had blood on it. At this point, Officer Klein was “not sure whether Tamborino was a suspect or a victim . . . .” (Maj. opn., ante, at p. 922.)1
After confronting petitioner, the police asked him to step outside onto the balcony. He complied and was placed in handcuffs. The police made no attempt to ask him whether other victims were inside. Instead, without petitioner’s consent, Officer Klein “sweep searched” the apartment for other victims. Throughout this incident Tamborino remained fully capable of answering any questions the officers might have had about the robbery. Indeed, they learned details about it when they interrogated him—after sweep searching the apartment.
The majority attempt to justify the police action in this case under an exception to the warrant requirement first recognized in People v. Roberts (1956) 47 Cal.2d 374 [303 P.2d 721], Roberts permits authorities to make warrantless searches of premises to the extent “reasonably necessary to determine whether a person [is] actually in distress somewhere in the [dwelling].” (Id., at pp. 378-379, italics added.)
Roberts is one of the few “specifically established and well-delineated exceptions” (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507]) that the courts have engrafted upon the Fourth Amendment’s general proscription against warrantless searches and its counterpart in article I, section 13, of the California Constitution. (People v. Dickson (1983) 144 Cal.App.3d 1046, 1059-1061 [192 Cal.Rptr. 897].) These exceptions recognize that there may be situations in which compliance with the warrant requirement is impossible or impracticable and in which [929]the demands of legitimate law enforcement override an individual’s privacy interests.2
The Roberts exception permits a warrantless search only when it is “reasonably necessary to determine whether a person [is] actually in distress somewhere in the [dwelling]. ” (Roberts, supra, 47 Cal.2d at pp. 378-379, italics added.) To validate a search under this exception, the police must show that (1) their perception that an emergency existed was an objectively reasonable one (id., at p. 377) and (2) the action they took in response to that emergency reasonably appeared necessary under the circumstances. (Id., at pp. 378-379; People v. Block, supra, 6 Cal.3d at pp. 244-245.) This second requirement is nothing more than an application of the general principle that police action taken in response to any emergency must be no more intrusive upon constitutionally protected rights than the emergency requires.
In the instant case, the police action satisfied neither prong of this two-part test. As petitioner concedes, a sufficient emergency existed to justify kicking open the door, but once the officers found Tamborino, any urgent need to search for victims ended. Secondly, even assuming that an emergency continued after the officers observed Tamborino, the sweep search was not “necessary.” Petitioner could have provided the police with information about additional victims for whom they claimed they were searching.
When the police encountered Tamborino, he was dressed in a manner which clearly indicated that he was a resident of the dwelling. His injuries signaled that he was a victim of the reported robbery. At this point, “the exigency end[ed], [and] the warrant requirement reemerge[d]. ” (People v. Keener (1983) 148 Cal.App.3d 73, 78 [195 Cal.Rptr. 733]; see People v. Frazier (1977) 71 Cal.App.3d 690, 694 [139 Cal.Rptr. 573].)
The police had absolutely no articulable factual basis for believing that other persons were inside the apartment. The dispatcher’s report did not indicate multiple victims. Tamborino’s neighbor gave no indication that more than one victim was involved in the robbery. In short, there was nothing more than the ever-present possibility that other victims might be present.
[930]This court has repeatedly held that the “mere possibility” that other persons may be inside a residence is insufficient to justify a warrantless residential search. (People v. Carney, supra, 34 Cal.3d at p. 612; see People v. Superior Court (Peck) (1974) 10 Cal.3d 645, 650 [111 Cal.Rptr. 565, 517 P.2d 829]; Dillon v. Superior Court (1972) 7 Cal.3d 305, 313-314 [102 Cal.Rptr. 161, 497 P.2d 505]; accord, United States v. Dugger (9th Cir. 1979) 603 F.2d 97, 100, fn. 5.) As this court recognized in Dillon in the analogous context of a warrantless search incident to an arrest, “There is, of course, always the possibility that some additional person may be found inside a house outside of which an arrest took place. But the mere possibility of additional persons in the house without more, is not enough to provide probable cause to search the whole premises for additional suspects, once the suspect whom the officers had sought was arrested.” (7 Cal.3d at p. 314.)3
No different result should obtain when the only apparent crime victim is safely in police custody and no reason for sweeping the residence for additional victims or suspects appears. To sanction sweep searches in such instances justifies police action based on nothing more than “unparticularized suspicions or ‘hunches’” (People v. Block, supra, 6 Cal.3d at p. 244) which, ironically, the majority concede is insufficient. (Maj. opn., ante, at p. 923.)
Today’s majority in one breath pay lip service to these well established principles, but virtually undermine them in the next. They hold the government no longer need articulate a factual basis for a warrantless residential intrusion. Instead, we are told that “ordinary, routine common sense” and “concern for human life” (maj. opn., ante, at p. 923) are adequate justifications for police action even though the record is devoid of such objective factual bases. Now “hunches” or “suspicions” are adequate for such a search, provided the officer takes care to characterize them as an exercise in “routine common sense.” The sanctioning of such semantic games seriously undermines formerly inviolable constitutional protections.
The majority’s subversion of the rule requiring specific articulable facts in support of exigent circumstances marks the beginning of a new era of warrantless searches in this state. A review of prior state and federal decisions illustrates this point.
In People v. Carney, supra, 34 Cal.3d 597, the court was faced with a warrantless sweep search of a motor home. The police had commenced [931]surveillance of the appellant’s motor home after they received a tip that narcotics dealing was being conducted inside. The officers observed a youth leave the motor home, approached him, confirmed their suspicions, and asked the youth to return to the motor home and ask the appellant to come out. Once this was done, the police arrested the appellant and subsequently searched the trailer.
This court held that the search of the motor home4 could not be justified under the “protective sweep” doctrine, which permits a search of premises without a warrant for additional subjects under certain limited circumstances. The police had failed to establish that they had a reasonable belief based upon specific, articulable facts that persons other than the accused were inside the motor home. (34 Cal.3d at pp. 612-613.) The court recalled that in Dillon v. Superior Court, supra, 7 Cal.3d at page 314 “we held that the mere possibility that others might be inside the house based on the fact more than one person lived there was insufficient to support a protective sweep search.” (Carney, supra, 34 Cal.3d at p. 613.)
The most significant feature of Carney is its observation that “[if] the officers had been truly concerned for their safety, it would have been elementary for them to have asked the [informant] who had just left the motor home how many people were inside. . . . This is not to say, of course, that had the [informant] stated defendant was alone, the officers would have been required to trust his response. ... In any event, any response would simply have been another factor for the officers to consider in determining whether there was reasonable cause under the totality of the circumstances to believe others were inside the motor home.” (34 Cal.3d at p. 613 and fn. 9.)
The fact that these factors led the court in Carney to reject the government’s “protective sweep” justification for its warrantless search illustrates how far today’s majority stray from recognized principles governing warrantless searches of dwellings.
In People v. Superior Court (Peck), supra, 10 Cal.3d 645, police officers responded to a burglary call at an apartment building. A resident of the apartment complex reported seeing a person crawling through the rear window of a neighboring apartment. Arriving at the scene, police went to the [932]apartment accompanied by the manager of the complex. With pistols drawn, the police knocked on the door and yelled “sheriff’s department. ” Peck opened the door, stepped onto the porch, and stated that he lived there, a fact which the manager confirmed. Peck explained that he was locked out and needed to enter through the window. When the officer asked if he could “take a look,” Peck stepped back and the officer entered and found marijuana. (10 Cal.3d at p. 648.) This court unanimously held the search invalid and excluded the evidence. (Id., at pp. 650-651.)
The Attorney General in Peck advanced three arguments, similar to those advanced here, to justify the warrantless search. (Id., at p. 650.) First, the state argued, Peck himself might have been the burglar. This court found those suspicions dispelled by the manager’s confirmation that Peck lived in the apartment. Next, the Attorney General argued, there may still have been a burglar in the apartment of which Peck was unaware. The court rejected this claim, however, since Peck had explained that he was the unidentified man who had entered through the rear window. Finally, the state asserted, a burglar may have been holding Peck hostage. The court rejected this reasoning as well, since Peck’s act of stepping out of the apartment indicated that he was free to leave. (Ibid.)
If nothing more, Peck indicates the importance of an officer making inquiries when he believes there is an urgent need to conduct a warrantless search. Today’s ruling teaches that the officer in Peck should not have asked questions, since the answers thereto undermined any asserted justifications to search the apartment. Had that officer merely handcuffed the resident, as the police did here, today’s majority might have found the search there permissible.
Finally, in United States v. Dugger, supra, 603 F.2d 97, a case remarkably similar to this one, the Ninth Circuit Court of Appeals invalidated a warrantless search claimed to be justified by exigent circumstances. There, police responded to a report of a fist-fight at an apartment complex. The police arrived about one hour after the fight had ended and interviewed the alleged victim. “The officers then followed a trail of blood leading from [the victim] back to Dugger’s apartment, where they observed blood on the front door and keys in the lock. They rang the doorbell ‘two or three times,’ but heard no response from inside. Then, one of the officers, uninvited, turned the key, pushed the door open, and stepped back away from the open door. The officers then called to Dugger and identified themselves as being from the sheriff’s department. They heard no immediate response. Then, a male within the apartment called out that he was putting on his shoes and would be right out.” (603 F.2d at p. 98.)
[933]“Upon entering Dugger’s apartment, the officers walked through the darkened living room to the lighted rear bedroom of the dwelling. There they found the defendant putting on his shoes. While one of the officers questioned Dugger, his companion quickly searched the rest of the apartment for other occupants. Then the officers asked Dugger to go with them into the living room. While looking for the light switch in the living room by flashlight, the officers observed what appeared to be marijuana strewn over the living room floor.” (Ibid.)
The district court had justified the warrantless entry on grounds of exigent circumstances and “the need to determine if anyone needed immediate medical attention.” (Ibid.) The court of appeals rejected that reasoning under the “clearly erroneous” standard of review. (603 F.2d at pp. 99-100.) The court reasoned that “ ‘the scope of the warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement.’ ” (603 F.2d at p. 99, quoting Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L.Ed.2d 900, 905, 906, 93 S.Ct. 2000].) “[0]nce the officers heard Dugger respond from within that he was coming outside as soon as he put on his shoes, any excuse of an emergency dissipated.” (Dugger, supra, at pp. 99-100.)5
The similarities between Dugger and the instant case are too obvious to belabor. There, as here, the police were presented with no indication that other persons were in the dwelling. The Ninth Circuit was simply unwilling to uphold that search merely based on “conjecture.” (Id., at p. 100, fn. 5.) Today’s majority depart from this logical view and hold that such conjecture is a proper basis for upholding a search, provided it is couched in terms of “routine common sense.”6
[934]Even assuming that the officers might have had an articulable basis for believing that other persons were present, a sweep search went far beyond action which was “necessary” to deal with that supposed exigency. Again, the cases are illustrative.
Settled principles of law in this area, emanating from two lines of cases, have established the ways in which a sweep search may be “necessary” in a Roberts-type situation. The first line of cases involves situations in which police arrive at a crime scene and suspect that injured victims are inside but no one is present to give such information. (People v. Hill (1974) 12 Cal.3d 731, 755 [117 Cal.Rptr. 393, 528 P.2d 1]; People v. Roberts, supra, at pp. 378-379; compare United States v. Dugger, supra, 603 F.2d at p. 100, fh. 5.) In these cases, courts have upheld limited searches for victims within the premises on the ground that such searches were “the only practical means of determining whether there was anyone inside in need of assistance.” (Hill, supra, 12 Cal.3d at p. 755.)
The second group of cases involves sweep searches for victims where the only available information about the incident would come from a suspect. In these cases, the search was justified by the fact that the suspect could not reasonably have been expected to give an honest response to police inquiries. (See, e.g., People v. Block, supra, 6 Cal.3d 239; People v. Keener, supra, 148 Cal.App.3d at p. 76; cf. People v. Carney, supra, 34 Cal.3d at p. 613.)7
The present case falls within neither of the two lines of authority noted above. Employing the Hill rationale, Officer Klein was not faced with a [935]situation where his only means of determining the presence of others was to search the apartment. Though injured, petitioner was alert and ambulatory. Therefore, he was fully capable of answering any questions the police may have had.
As to the Block rationale, the trial court found that Tamborino simply “could not be a suspect” since he was obviously an occupant of the apartment and a victim of the robbery. It is not surprising that this critical factual finding is ignored in an attempt to justify the trial court’s ultimate ruling.
The majority hold that when an officer believes that an “emergency” exists, the courts should be reluctant to question whether he or she acted “reasonably” with regard to protected Fourth Amendment rights. Apparently the officer need not confine his or her conduct to that which is “necessary” to preserve and protect life. (See maj. opn., ante, at p. 924 & fn. 2.)
As the above-cited cases illustrate, every court which has permitted “emergency” sweep searches for injured persons or suspects—including those cited by the majority—has required to date a particularized showing that the police action was reasonably necessary in light of the circumstances. The majority’s “reluctance to second guess split-second decisions of officers faced with potentially dangerous situations” (maj. opn., ante, at p. 925) seemingly abandons any requirement that the police make the “reasonably necessary” showing. Under the majority’s holding, whenever an officer perceives an “emergency,” the courts will not question his or her actions.
In addition, the majority’s holding is not mandated by “routine common sense” or a “concern for human life”—the justifications my brethren assert for the warrantless intrusion. Existing exceptions to the warrant requirement already accommodate such reasoning.
The law in this area represents a delicate but necessary balance between the legitimate needs of law enforcement and a person’s reasonable expectation of privacy. That balance is preserved by excusing Fourth Amendment compliance in Roberts situations only when “reasonably necessary.” Today’s majority upset that balance, undermining the Constitution in the process. Henceforth, in order to escape the Constitution’s warrant requirement, an officer need merely claim that the crime victim appeared to be a suspect— no matter how unreasonable that contention—and cite the ever-present possibility of additional individuals inside the dwelling.
In sum, my colleagues dilute the protection of the reasonableness standard in order to accommodate a weak factual showing of necessity in this partic[936]ular case. In so doing, they undermine Fourth Amendment principles and depart from existing law. Such a holding cannot be justified by either “routine common sense” or a “concern for human life.” Existing principles have served society well in the difficult task of balancing constitutionally protected privacy rights against the need to preserve human life in emergency situations. I see absolutely no reason to subvert these carefully developed principles and curtail the constitutional rights of victims of crime.
The majority accept this statement at face value (ibid.), despite the trial court’s factual finding, based on substantial evidence, that Tamborino simply “could not be a suspect” and that he was instead obviously “an occupant, a victim” of the robbery.
See People v. Block, supra, 6 Cal.3d at page 245 (search for other suspects incident to lawful arrest on the premises); People v. Ramey (1976) 16 Cal.3d 263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333] (warrantless entry of premises to effect an arrest where necessary due to imminent danger to life or property, likelihood of flight or destruction of evidence); People v. Roberts, supra, 47 Cal.2d at page 378 (search of crime scene necessary to determine presence of and render aid to injured victims); see generally People v. Dickson, supra, 144 Cal.App.3d at pages 1052-1053 (discussing all three exceptions).
A Ninth Circuit panel recently echoed these observations in United States v. Hoffman (9th Cir. 1979) 607 F.2d 280, 284, noting that “[t]he Government does not satisfy [its] burden by leading a court to speculate about what ‘may’ or ‘might’ have been the circumstances surrounding the warrantless search.”
Carney held that the motor home was a “dwelling” and not subject to the “automobile exception” to the warrant requirement. The United States Supreme Court reversed that portion of our ruling, holding that a motor home with wheels may be treated like an automobile for the purposes of search and seizure principles. (California v. Carney, supra, 471 U.S. at p. 393 [85 L.Ed.2d at p. 414, 105 S.Ct. at p. 2070].) However, that portion of the ruling dealing with search and seizure principles governing dwellings generally was left intact.
The majority’s reading of Dugger is seriously flawed. (See maj. opn., ante, at p. 925, fh. 4.) The majority imply that Dugger found unlawful only that part of the search which occurred after the police had questioned Dugger. (Ibid.) In fact, the court ruled that the initial entry of the premises was unlawful since any exigency ended at the moment the officers heard Dugger say he was putting on his shoes and “would be right out.” (Dugger, supra, 603 F.2d at pp. 99-100.) While it is true that the police questioned Dugger after they unlawfully entered (id., at p. 98), that fact was irrelevant to the court’s ruling. (See id., at pp. 99-100.)
Another case with similar facts is United States v. Spetz (9th Cir. 1983) 721 F.2d 1457. There, Drug Enforcement Administration agents arrested five suspects in the driveway of a residence and subsequently conducted a sweep search of the residence, on the asserted ground that other suspects might, in the district court’s words, “be disposed to draw a bead on [the officers].” (Id., at p. 1467.)
Finding such reasoning speculative and noting that there was not even the “slightest indication that the suspects arrested in the driveway were armed or that there were weapons within the house” (ibid.), the court held the search unlawful. The court also observed that “[t]here were no known confederates of the individuals arrested; . . . the agents were able to observe that all of the doors were open and presumably could keep the means of egress under surveillance[, and] the agents knew of no weapons connected with any of the individ[934]uals arrested or the residence, nor had they any other articulable basis for a conclusion that a potential for violence existed.” (Ibid.)
The court found, however, that the taint from that action was attenuated by a subsequently obtained search warrant, and eventually affirmed the convictions. (Id., at pp. 1468, 1478.)
The reason for these limited inroads into the Fourth Amendment is plainly stated in People v. Dickson, supra, 144 Cal.App.3d at page 1063: “The risk ‘exigent circumstances’ will be used as a pretext is especially grave when officers have some suspicion, short of probable cause, that criminal activity is under way on the premises they intend to invade. This is not to say an officer’s motives must be completely pure when he enters with the avowed purpose of protecting life and property. Clearly when an officer hears gunfire and screams of pain inside a house he may rush in with an investigator’s curiosity as well as the savior’s desire to save lives. But where mixed motives are possible the courts must be alert the savior’s image is not merely pretence for an unconstitutional invasion of a suspect’s private home.
“Without entering the policeman’s head, we can never be certain whether he was thinking as a savior or an investigator. However, where . . . the ‘exigent circumstances’ rest on a claimed imminent threat of danger to life and property, ... the court is entitled to ask at least two questions. First, . . . was the threat so imminent and serious a reasonable policeman would believe that a warrantless, emergency entry was necessary to save lives and property? And, second, . . . was this officer indeed motivated primarily by a desire to save lives and property?”