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Is a Warrantless Search OK Based on Smell of Smoke?
In 2019, someone called 911 in Santa Clara County to report a “whole structure fire” with fire coming from a house and gave the address of the home of Defendant Joseph Brook Nunes.
Brief Synopsis: Police (or a fireman) may conduct a warrantless search upon noticing smoke coming from a home, but not in all situations. The totality of the circumstances determine if there is an exigency allowing such a warrantless search. In the following case, such a warrantless search was improper.
The Milpitas Fire Department was dispatched to the home and arrived there a little after 4:30 p.m. He saw no fire and no smoke at all. Neighbors who were standing outside told one fire fighter who was a captain in the Milpitas Fire Department that they had recently seen a plume of smoke coming from the backyard.
A police officer was at the scene. He “pounded on the door” of the house to check if anyone was inside. After no one answered, the fire captain opened a gate and entered the backyard.
The fire captain later testified that he “smelled smoke in the air that wasn’t consistent with, like cooking.” He began investigating to confirm there was no imminent danger. He found no active fire. Four other firefighters also searched the backyard.
The firefighter captain noticed some test tubes and chemistry equipment, as well as a homemade toy rocket that looked burned.
Court of Appeal Sixth Appellate District San JoseThen the captain noticed a closed shed. No smoke was coming from it, nor did the smell of smoke seem to originate from there. He opened the shed as part of his fire investigation because he wanted “to make sure everything is clear.”
Inside the shed was a metal cabinet. In his testimony in court, the captain candidly admitted there was nothing specific about the cabinet that made him think he should look inside. Still, he opened the cabinet and saw bottled chemicals he was not familiar with. Since he did not know what they were, he called the hazardous materials team to respond. Police were also called back to the scene.
The police ultimately obtained a search warrant, based in part on the chemicals found in the shed. After serving the warrant, the district attorney charged defendant with numerous offenses for possessing explosives and explosive materials.
Defendant moved to suppress evidence obtained from the fire captain’s initial, pre-warrant search of the backyard shed and cabinet. The trial court judge in Santa Clara County Superior Court, Socrates Peter Manoukian, denied the motion. Mr. Nunes then pleaded no contest to possessing an explosive and possessing an explosive device. He was granted probation.
He then appealed the ruling on the motion to suppress to the Sixth Appellate District, which reversed the ruling on the motion and ordered that Mr. Nunes be allowed to withdraw his no contest plea.
The Sixth Appellate District reasoned that exigency was not a justifiable basis for the search of the shed because, while it was not the home, the Fourth Amendment recognized it as an extension of the house and therefore entitled to the “highest degree of privacy protection our Constitution affords.” Any exception to that protection must be, in the words of the Supreme Court, “jealously and carefully drawn.” Coolidge v. New Hampshire (1971) 403 U.S. 443, 455.
The Sixth Appellate District continued, reciting hornbook law that the Sixth Amendment protects against unreasonable searches without a warrant in areas where someone has a reasonable expectation of privacy. Since privacy protections are particularly strong in the home, warrantless searches of residences are presumed invalid. Payton v. New York (1980) 445 U.S. 573, 586.
The search in this case is considered a home search for Fourth Amendment purposes because it occurred within the “curtilage” (the area immediately surrounding and associated with the home). Florida v. Jardines (2013) 569 U.S. 1, 6.
Recognized exceptions to the general rule against warrantless home searches must be narrowly construed to prevent the exceptions from swallowing this important Fourth Amendment right. Coolidge, supra, at 454. One exception is when an exigent circumstance makes the needs of law enforcement so compelling that a warrantless search becomes objectively reasonable. Kentucky v. King (2011) 563 U.S. 452, 260.
An exigency is “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property.” People v. Ramey (1976) 16 Cal.3d 263, 276.
In the Sixth Appellate District’s view, here, the prosecution did not show that. There was no visible smoke; only a persistent odor that was not consistent with cooking. This situation did not present an emergency because the contents of the cabinet were not even the source of the smell. Opening the cabinet in the shed was not necessary to avoid imminent danger to life or serious property damage. Even the fire captain testified that there was nothing “in particular” about the cabinet that led him to open it.
Therefore, the judgment against Mr. Nunes was reversed and he was permitted to withdraw his pleas.
The citation for the Sixth Appellate District Court ruling discussed above is People v. Joseph Brook Nunes (6th App. Dist., 2021) 64 Cal. App. 5th 1, 278 Cal. Rptr. 3d 425.
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