RULING MAY LEAD TO MORE POLICE SEARCHES

Rights: State High Court Opinion Says Officers Did Not Need A Warrant To
Enter A Home For 'community Caretaking' Purposes. Impact Is Unclear.

SAN FRANCISCO - In a decision that may make it easier for police to enter
homes without a warrant, the California Supreme Court on Thursday upheld a
search made because a front door was open and clothing and papers were
strewn on the floor inside.

In a splintered ruling, the court said police legally entered a Richmond
home on Christmas afternoon in 1996 after a neighbor called to say the
front door had been left ajar all day and the house was "a shambles" inside.

Police said they knocked several times on the open door and loudly
announced their presence. When no one answered, they said, they entered the
home of Andre Lamont Ray in a quiet middleclass neighborhood and saw drugs
and cash.

They left, obtained a search warrant and later found more than 10 kilograms
of cocaine, including some in a pillowcase under the Christmas tree, they
said.

The decision is likely to make police less leery about entering private
residences without warrants. At the same time, no faction of the court
could muster enough votes to change the current legal standard for
warrantless searches that an emergency must exist at the time of entry.

In the court's lead opinion, signed by only three of the seven members,
Justice Janice Rogers Brown carved out an exception to 4th Amendment
protections against unreasonable searches and seizures. The exception, she
wrote, is for "community caretaking functions" of police.

Three other justices also upheld the search, but on different grounds.
Chief Justice Ronald M. George, in the concurring opinion, said the search
was justified by "exigent circumstances," a well established exception to
the warrant requirement allowed in cases of emergency. Dissenter Denounces
Exception Justice Stanley Mosk, in the sole dissent, chastised the lead
opinion for attempting to create a "broad new exception" to the 4th
Amendment's protection against unwanted government intrusions.

Mosk complained that a community caretaking exception means that
warrantless searches "can be justified on the paternalistic premise that
'We're from the government, and we're here to help you.' .

He added: "To the extent that the officers believed they were called upon
to perform a community caretaking function, it would have sufficed to shut
the door..

Because the court failed to muster four votes on the legal rationale for
upholding the search, prosecutors probably will argue both theories in
future cases, said Ted Cassman, the defense lawyer who represented Ray in
the case.

He called the ruling "an invitation" to police to enter a home if all they
see is "an open door and a mess..

Ray, who owns a hairdressing business, was charged with possession of
cocaine for sale. But the trial judge dismissed the case because police did
not have a warrant when they initially entered the home.

Contra Costa County Superior Court Judge Garrett J. Grant said it is not
uncommon for people to leave their front door open.

"I do not in any way think that the officers were necessarily wrong in what
they did," said Grant when he dismissed the case. "But if we are going to
get into a situation where you are going to prosecute somebody for a crime
in this situation, I think they needed to get a search warrant..

The government appealed, and a Court of Appeal upheld the search on the
grounds that it had been made under emergency circumstances.

Justice Brown, in the lead opinion, said no emergency justified the search.
"This justification requires specific, articulable facts indicating the
need for 'swift action to prevent imminent danger to life or serious damage
to property," she wrote, citing a 1986 case. ". . . The record fails to
meet this standard..

But she said situations "short of a perceived emergency" may nonetheless
justify a warrantless entry, including a search to protect property where
police believe a burglary may have occurred.

If a warrant were required in such situations, police might be less likely
to answer calls from concerned citizens about their neighbors, she said.
Quoting another court decision, she wrote: "In the future police will tell
such concerned citizens, 'Sorry. We can't help you. We need a warrant and
can't get one.' .

She cautioned, however, that an open door alone was not enough to justify a
warrantless search and said courts should be vigilant in ensuring that
police do not use community concerns as a pretext for an entry aimed at
gathering criminal evidence. In this case, she said, the condition of the
front room combined with the open door justified the entry.

Chief Justice George, in the concurring opinion, said the situation
triggered the emergency exception because the officers reasonably believed
that a burglary was in progress or had occurred and that occupants inside
might need help.

Justice Mosk, however, said that there was no sign of forced entry and that
officers could see an expensive looking television and stereo untouched
near the front door. There also was no sign that anyone was inside the
house, and no attempt was made to contact the neighbor who called the
police or to look in the backyard, he said.

If this kind of entry is legal, abuses will follow, Mosk warned. Can police
enter when a door is merely unlocked? he asked. Or when the occupants
simply choose not to answer a knock at the door? Defense May Appeal Defense
lawyer Cassman said he may ask the U.S. Supreme Court to review the case.
Unless the high court intervenes, his client, Ray, will again be prosecuted.

Cassman said he is "deeply concerned" that the lead opinion appears to
allow officers to "enter your home to conduct a security check." Under this
rationale, he said, officers could enter a home if a neighbor reported that
newspapers were piling up outside and the occupant had not planned to be on
vacation.

"It's an absolutely frightening concept," he said.

McGeorge School of Law Professor J. Clark Kelso said the lead opinion would
have significantly expanded the exceptions to the search warrant
requirement if a fourth judge had voted to make it law.

For instance, the exception would have further aided the prosecution in
successfully arguing that the search of O.J. Simpson's home was legal in
the hours after the murders of his former wife and her friend, Kelso said.

In that case, a judge upheld the decision of police officers to leap over
Simpson's fence and enter his estate without a warrant. The judge said the
police reasonably believed that there might be other victims in the home
after finding blood outside.

Kelso said it is difficult for courts to ensure that police searches meet
legal requirements, because officers will generally testify that they acted
with noble motives, such as concern for a resident's safety.

California Deputy Atty. Gen. Gerald Engler, whose office represented the
prosecution before the state high court, said he could not comment on the
ruling because he had not read it. But because no faction on the court
commanded four votes, the ruling "may or may not provide a whole lot of
guidance," he said.