Cal.4th: “A partially open door by itself is not probable cause justifying warrantless search or seizure in a residence”

One man was stripping insulation from copper wire in front of a house. The door to the house was partially open. The police thought that a burglary was in progress. They made no effort to determine whether the person in the house lived there before they entered. He did, and the entry was unlawful. People v. Lujano, 2014 Cal. App. LEXIS 771 (4th Dist. August 26, 2014):

Neither did officers’ observations outside the house prior to making contact with defendant yield any facts from which they could have reasonably concluded a burglar was likely inside. As noted, when the officers talked with Vargas, he explained he was visiting a resident named Rick. The officers may not have believed him, but “the explanation was not patently inconsistent, false, or inherently implausible. As such, it did not furnish a reasonable basis for suspecting criminal activity” with respect to Vargas, let alone defendant. (People v. Loewen (1983) 35 Cal.3d 117, 125 [196 Cal. Rptr. 846, 672 P.2d 436].) The officers observed a door was ajar, but there were no signs, for example, of forced entry. (Cf. Duncan, supra, 42 Cal.3d at p. 98 [presence of a television and other property beneath an open window reasonably suggested burglars might still be in the house, “‘collecting more loot’”].) A partially open door by itself is not probable cause justifying warrantless search or seizure in a residence, and nothing in our record suggests Officer Galbreath was aware of any additional facts tending to suggest either a burglary in progress, or the presence of the victim of a burglary in need of emergency care. (See Murdock v. Stout (9th Cir. 1995) 54 F.3d 1437, 1441 [officers did not have probable cause to enter a house based merely on neighbor’s report of suspicious activity and an open door, but did have probable cause based on other signs a resident should have been home, but might have been in danger or injured], abrogated on other grounds as recognized in LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3d 947, 957.)