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LU Ref# CAI00015
September 15, 2021
Author Ref. No: Vol. 26 No. 10
LU Ref# CAI00015
September 15, 2021
Author Ref. No:   Vol. 26 No. 10

Robert Phillips
Deputy District Attorney (Retired)

“I don't mean to interrupt people. I just randomly remember things and get really excited.”
Searches Within the Curtilage of a Home
COURT CASE REFERENCE: People v. Nunes (May 6, 2021) 64 Cal.App.5th 1

The Fourth Amendment’s restrictions of warrantless searches of a residence extend to other structures within the curtilage of the home.  Whether exigent circumstances justify a warrantless search depends on the circumstances known to the officer at the time of the search.  The persistent odor of smoke, with no actual fire, does not allow for the warrantless search of a cabinet found inside a shed within the curtilage of a home.
A Milpitas Fire Department captain was a part of a crew that responded to defendant Joseph Nunes’ home one afternoon.  Although the 911 call indicated that there was a structure fire, with fire coming from the house, nothing was found to be going on when the fire department got there.  The house did not appear to be on fire.  Neighbors, however, told the fire captain that they had recently seen a plume of smoke coming from the backyard.  Police at the scene found no one to be home.  So the fire captain opened a side gate and entered the backyard.  In the backyard, the captain could smell smoke in the air; a smell, however, that was not consistent with someone cooking.  (Ha!  He’s never smelled my cooking.)  Looking around the backyard for the purpose of confirming there was no imminent danger, the captain could not find any active fire.  Still smelling smoke “around the entire backyard,” however, the fire captain and his crew continued to look for its source.  All they found were some test tubes, chemistry equipment, and a burned up homemade toy rocket.  Also in the backyard was a closed shed.  Although no smoke was coming from the shed, and despite the fact that the smell did not seem to originate from there, the captain—wanting “to make sure everything was clear”—opened the shed and looked inside.  Inside the shed was a metal cabinet.  Despite there being nothing to indicate that the cabinet might be related to the odor of smoke, but concerned that there might be some flammable chemicals inside, the captain opened it.  In the cabinet were some bottled chemicals with which the captain was not familiar.  Because he did not know what the chemicals might be, he called a hazardous materials team to respond.  The police, who had since departed, were also called back to the scene.  Based in part on the chemicals found in the cabinet, the police ultimately obtained a search warrant.  Execution of the search warrant resulted in the recovery of some explosive materials.  After the search warrant was executed, the District Attorney eventually charged defendant with numerous offenses related to the possession of explosives and explosive materials.  Defendant moved to suppress the evidence obtained from the fire captain's initial, pre-warrant search of the backyard, shed, and cabinet (which, if found to be illegal, would also jeopardize the validity of the resulting search warrant; an issue not discussed).  Upon the trial court’s denial of defendant’s motion, he pled “no contest” to possessing explosives and a destructive device.  Granted probation, defendant appealed.