Doesn't it seem like Justice Grover is clearly and unambiguously right here?
I agree that it was reasonable for the fire department captain to respond to the defendant's residence. After all, someone had called in a report that there was a "whole structure fire" at the house. Given that report, I'm glad the fire department showed up.
Now, when he gets there, the fire captain sees no fire and no smoke. But okay. It's still worth checking out. Especially since some neighbors say that they had previously seen a plume of smoke coming from the back yard.
For that reason, it also seems okay to me for the fire captain to go ahead into the backyard. Yes, there's no visible fire or anything. But the captain says there's an "odor of smoke" around the "entire backyard" -- albeit not coming from anyplace in particular. All of the above probably counts as exigent circumstances. We want to make sure there's not a fire.
The fire captain's decision to open the closed shed is a closer call. There's no obvious fire or smoke coming from the shed. No one says the smoke smell seemed like it was coming from the shed. To the degree there's anything that hints at where the smoke smell is coming from, the shed's not the culprit: the captain sees some test tubes and chemistry equipment on the ground of the backyard, and a homemade toy rocket that looks burned. All the in backyard; nothing in the shed.
But okay. Let's assume, if only for purposes of argument, that it counts as "exigent circumstances" to enter the shed without a warrant. Just to check it out.
When he enters the shed, the captain again doesn't see any smoke, any fire, or anything else that seems to explain the smoke or fire. It's just a shed.
There's a metal cabinet in the shed. Again: No smoke or fire or anything in the cabinet, or anywhere in the shed. Was there any reason why the fire captain might suspect anything untoward about the metal cabinet? Nope. Nothing. The captain testifies: “Q: Was there anything about the shed in particular, the cabinet in particular that made you feel that you needed to check that area? [¶] A: Not in particular.”
Nonetheless, without getting a warrant, the fire captain opens the cabinet, and finds some incriminating chemicals. This ultimately leads to the defendant getting arrested.
Did exigent circumstances justify opening the cabinet?
Justice Grover says they didn't. And that seems exactly right to me.
Justice Elia disagrees, and dissents. But Justice Grover has the much, much better of the argument. The claim that there might have been something potentially "smoldering" in the cabinet is belied by both the evidence and the fire captain's own testimony. You can't just go through whatever you feel like -- without a warrant -- just because you're investigating a potential fire. Yeah, the fire captain opened the cabinet for a reason. But not because he had any indication that there was a fire or something dangerous there. Not even reasonable suspicion. Much less the type of probable cause or exigent circumstances to justify a warrantless search of a residence.
This one seems easy to me. Notwithstanding the split panel.
