Friday, September 08, 2017

People v. Williams (Cal. Ct. App. - Sept. 8, 2017)

I'm usually not a fan of the California Supreme Court reaching out to depublish an opinion by the Court of Appeal.

But here's a good candidate for precisely that.

There's a loose horse out in a rural area, so police officers (understandably) investigate.  The horse seems trying to get back into a particular property, and the police follow it around, block it off, call for backup, try to contact anyone at the house (by knocking on doors, windows, calling the property, etc.).  Eventually the authorities succeed in getting the horse into a horse trailer that they've brought to impound the horse.

Cool.  Great work.  I have absolutely no problem with any of that.

While they're doing all of this, they hear some dogs barking, see some dogs that appear to be fairly poorly kept up (when they peek inside the windows), and generally just get a sense that there might be something going on with respect to the dogs.  Now, truthfully, they already know that already, as they'd previously been out to this same house on a couple of prior occasions, and knew that there were lots of dogs.  But the owner showed 'em the proper permits etc., so everything passed.

But now the authorities feel like they've got free reign of the place.  The owner's not home.  They've already done everything that conservative Supreme Court precedent allows 'em to do -- enter a home property without consent, repeatedly knock on every door, peek inside all the windows, etc.  Stuff that'd freak you out if you saw a stranger doing to your home, but that nonetheless the judiciary says is okay, since it's the "curtilage" of your home and hence involves a "sidewalk, pathway, common entrance or similar passageway [that] offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."


But then the police cross the line, in my view.  Both literally and metaphorically.  There's a fenced in back yard.  Something that clearly doesn't offer "implied permission" for anyone to enter.  The police nonetheless enter the back yard, at which point they see some dogs with scars and a missing lip and some additional evidence that makes 'em think that there might be dog fighting.

And then, two weeks later, based on these observations, they go back to the property and take some more (entirely permissible) pictures.  Then they wait another three weeks, and finally get a search warrant, which they obtain by reciting all the evidence described above.  And during the search, they find evidence of dog fighting and charge the defendant.

The critical issue is whether the search was permissible; in particular, the officers crossing into the back yard.

The Court of Appeal says that was okay -- proper -- because of "exigent circumstances".  Based on the presence of several barking dogs and one letting out some whines somewhere.  Justice Grimes relies on an "exigent circumstances" case that said that it was okay for a police officer to hop over a fence when he saw a gun lying on the ground and says it's the same thing here:  gun, barking and/or whining dogs, no difference.  Exigent circumstances.

But the two are radically distinct.  Particularly here.

First off, of course there are barking dogs.  Come to pretty much any house with a dog -- or more of 'em -- and knock on doors and windows and peer in and see what happens.  They'll bark because (1) that's what they do, and (2) that's why (in part) we have 'em.  Because we want them to bark their heads off when random dudes go traipsing around our front hard for an hour knocking and peeking into every window.

So that's hardly exigent circumstances.  That's hardly reason to fear that the dogs are in mortal danger, which is the "exigent circumstance" that the Court of Appeal finds.

Now, there's also a dog that whines a little, and some dogs that look a little thin and the like.  Now, mind you, that exact same stuff -- and worse -- was there last time the authorities were called to the place, and the authorities did absolutely nothing.  So I'm not really sure how "exigent" all this stuff is.  But even ignoring past history, it'd be one thing if there really was a dog that was about to die or who was yelping like it was in mortal danger or whatever.  But that's not what was happening, and was definitely not what the police perceived.  The dogs were just doing what we'd totally expect them to do with randoms on their lawn who weren't leaving.  And, yeah, there might perhaps have been some systemic problems with the alleged weight of the dogs or a smell of feces or whatever.

So you know what you do in that situation?  Get a warrant.  It takes, like, hours.  Maybe a day, tops. There's absolutely no reason to believe that one of these dogs is in such distress that it's going to die or the like in the time it takes to get a warrant.  And it's nowwhere near as dangerous as a gun lying unsupervised on the ground.  Get a warrant, get a warrant, get a warrant.  Because we want a neutral magistrate to decide -- except in the most extreme cases -- whether circumstances truly warrant (pun intended) making people no longer "secure in their persons, houses, papers and effects."  Not merely the unilateral whim of the police.

But the Court of Appeal thinks that the dog situation is so extreme -- so exigent -- that it warrants the police exceeding their normal authority and invading the back yard.  And let's be crystal clear what's at stake in his holding.  If exigent circumstances -- the alleged dying dogs or whatever -- permit the police to invade the back yard, those same exigent circumstances permit them to bust down the door and enter the house.  Because both places are the "home" under the Fourth Amendment.  The fact that the police here only elected to invade the fenced back yard, rather than the home itself, doesn't make the Court of Appeal's holding any less dangerous, because what's good for the former is good for the latter as well.  If barking, smelly dogs are exigent circumstances that negate the need for a warrant, that's a view that's not limited to merely inspecting the back yard; you get to go full out at that point.

So it's an opinion that really does matter.

Oh, and lest you think that the "dangers" of the barking dogs were really all that substantial -- that I'm understating their perceived seriousness -- let me just remind you of just how serious the police who witnessed them first-hand thought they were.  How "exigent" and critical the circumstances were.  Those facts were so serious that after the police invaded the back yard and did all their stuff, they promptly left and did absolutely nothing.  Those "critically at risk" dogs were just left to their own devices.  For weeks.  Until the police did another drive-by and took some more pictures.  And then let three more weeks pass until seeking and obtaining a warrant.

When that's how serious the police perceive the matter to be in real time -- i.e., not at all -- I think it's super difficult to argue that on the facts of this case, the barking dogs were really so exigent that they authorized entirely dispensing with the requirement of a warrant.  Because every fact you'll mention to identify how allegedly "serious" the circumstances might have been were not, in fact, perceived to be at all that serious -- that requiring of immediate intervention -- by the people who were actually there and perceived them.

Anyway, that's my take.

And, in the end, the Court of Appeal concludes its opinion by saying that the seized evidence was permissibly introduced in any event because even if you excise the impermissible stuff from the affidavit (i.e, the back yard stuff), the remaining (proper) evidence was more than sufficient to justify the warrant's issuance.

Which totally negates the need for the rest of the opinion.  The bad -- and dangerous -- part about why exigent circumstances allegedly permit the police to invade your home whenever analogous circumstances like this exist.

Which in turn is why, even though I'm not normally a fan of depublication, I think this is a perfect candidate.