It is Unconstitutional For Officers To Confiscate A Firearm From The Residence Of A Mentally Disordered Person Who Is Detained Outside The Residence When No Necessity For Entry Exists

In The People v. Travis Wylie Sweig, (— Cal.Rptr.3d —, Cal.App. 3 Dist., Oct. 27, 2008), a California Court of Appeal considered whether police officers violated the constitutional rights of a mentally disordered man against unreasonable search and seizure when, after taking him into custody and securing him in their patrol car, they entered his residence and confiscated an illegal firearm. The court determined that, due to an apparent legislative oversight, the law did not permit the officers to make a warrantless search of the residence, and also did not permit them to obtain a warrant for the search.

Facts

Law enforcement officers in Shasta County observed Travis Wylie Sweig on a porch outside his trailer holding a rifle, claiming he was being harassed by people banging on his walls and pointing lasers at him. When told to put the rifle down, Sweig walked around the side of the trailer and then came back without the rifle.

Determining from this behavior and other reports that Sweig was suffering from a mental disorder, and posed a potential danger to himself or others, the officers took him into custody under Welfare & Institutions (“W&I”) Code Section 5150 and secured him in the back seat of their patrol car. The officers then entered the residence to confiscate the rifle, pursuant to W&I Section 8102 and found many other firearms, including an illegal semi-automatic assault rifle, which they also confiscated.

Sweig was charged with possession of an unlawful weapon. The trial court ruled that the warrantless search violated the Fourth Amendment to the United States Constitution’s ban on unreasonable search and seizure, that the weapon was therefore inadmissible evidence, and dismissed the case. The people, represented by the California Attorney General, appealed.

Decision

The Fourth Amendment requires law enforcement officers to obtain a warrant from a judge before searching a residence, the court noted, although there are exceptions to this rule for “exigent circumstances,” such as pursuing a suspect, preventing destruction of evidence, or a risk of danger to police or other people. Here, the court said, with Sweig already secured in the patrol car, and no reason to believe other people were in the residence, no such exigent circumstance existed, and the officers could not legally make the warrantless search.

However, the court added, even if the officers had sought a warrant, the circumstances of this case would not have allowed them to obtain one. Penal Code Section 1524 lists the circumstances that allow for the issuing of a search warrant–such as when property is suspected to be stolen, or to have been used in the commission of a felony–and none of them applied here. Further, while Section 8102 did require the officers to confiscate the firearm, it did not authorize the warrantless search. If the Legislature believes officers should be able to obtain a warrant to search the residence of a mentally disordered person in custody, it should enact a law saying as much, the court said.

The court rejected the People’s contention that the warrantless entry into Sweig’s house fell within the police’s “community caretaking function. For a warrantless search to be justified by the community caretaking function there must be a necessity for the search, the court said, citing People v. Ray (1999) 21 Cal.4th 464. Here, with Sweig in custody and no one else around, the court found there was no necessity.

With the warrantless search unconstitutional, and the law not allowing for a warrant to be issued in this case, the court concluded there was no constitutional way for the officers to remove the weapon from the residence, adding this is probably due to a legislative oversight. The officers’ search of the residence was unconstitutional and the trial court was correct to dismiss the case, the court ruled. The ruling was affirmed.

Questions

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