Stanford Law School - Robert Crown Law Library

Filed 6/14/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S138898
v.
Ct.App. 4/1 D044103
JUAN RIVERA,
San
Diego
County
Defendant and Appellant.
Super. Ct. No. 172974

The question presented in this People’s appeal is whether the Fourth
Amendment requires police officers to corroborate an anonymous tip before
contacting the occupant of a residence and seeking consent to enter and search.
We conclude it does not and reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 20, 2004, around 3:25 p.m., Officer Scott Hunter received a
radio report of an anonymous tip that “Juan Rivera,” who may have had an
outstanding warrant, was at an address in Oceanside. Hunter did not run a records
check on the name or seek any other automated information about Rivera or the
address provided by the tipster. Hunter and his partner went to the address and
spoke with Maria Ortega, who identified herself as the homeowner. Hunter
testified that he asked Ortega if she knew Juan Rivera, but he could not recall her
answer. Ortega told Hunter to “come inside.” At Hunter’s request, Ortega
consented to a search of her residence.
The officers found defendant in the backyard, sitting in a small doorless
shed. Standing at the opening of the shed, Officer Hunter asked defendant’s name.
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Defendant replied he was Juan Rivera. When Hunter asked if he had any
weapons, defendant said he was carrying a knife under his clothing. Hunter
ordered defendant out of the shed and onto the ground. Hunter handcuffed him
and recovered a large knife in a sheath from under defendant’s shirt. The officer
then confirmed through police dispatch that defendant had an outstanding felony
warrant.
Defendant moved to suppress evidence pursuant to Penal Code section
1538.5, arguing that the anonymous, uncorroborated tip was insufficient to justify
his detention and search, and that the belated verification of the warrant could not
support the officers’ actions. The trial court took judicial notice of two valid
traffic warrants and a parole warrant. It denied the suppression motion on the
basis that the warrants, unverified and standing alone, justified the arrest.
Defendant pleaded guilty to carrying a concealed dirk or dagger (Pen. Code,
§ 12020, subd. (a)(4)), and was sentenced to two years state prison.
A divided Court of Appeal reversed. The majority ruled that defendant’s
unverified warrants did not justify the detention and arrest, citing People v.
Sanders (2003) 31 Cal.4th 318, in which we held that officers must be aware of a
defendant’s parole search condition to justify a warrantless search on that basis.
The majority then considered whether defendant could be detained based on the
tip. Relying on Florida v. J.L. (2000) 529 U.S. 266, the Court of Appeal
explained that a detention based on an anonymous, uncorroborated tip violates the
Fourth Amendment. The majority determined that no evidence corroborated the
tip and rejected the People’s argument that the tip was self-verifying.
The dissenting justice would have affirmed the trial court, reasoning that
regardless of the anonymous tip, the homeowner consented to the officers’ entry
and search: “In this case, at the police officers’ request, they were given
permission to search the residence where the anonymous tipster indicated Rivera
was located. Even assuming that they had no reasonable suspicion for a detention
at that point, this ‘knock and talk’ procedure, seeking permission to search a
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residence, does not run afoul of the Fourth Amendment. (People v. Jenkins (2004)
119 Cal.App.4th 368, 372.).” The dissenting justice concluded further that the
officers made a consensual contact with defendant that did not escalate to a
detention until they learned defendant had a knife.
The majority criticized the dissent for “narrowly focusing on only the
contact between the police and [defendant] once he was located, rather than on
whether the initial contact at the residence and search for [defendant] was justified
by the uncorroborated anonymous tip. The dissent fails to recognize that but for
the uncorroborated anonymous tip, the police would never have encountered
[defendant] at the shed located on private property.” Thus the majority concluded
that the police were required to corroborate the tip before they initially contacted
the homeowner.
II. DISCUSSION
We hold the Fourth Amendment does not require police to corroborate an
anonymous tip before seeking consent to enter and search a residence. Even if
acting on an anonymous, uncorroborated tip, police may knock on the door of a
residence, speak with the occupant, and request permission to enter and search.
In
Florida v. J.L., supra, 529 U.S. 266, the United States Supreme Court
considered the sufficiency of an anonymous tip to justify a stop and frisk
detention. An unidentified caller told police that a young African-American man
in a plaid shirt standing at a particular bus stop was carrying a gun. “All the police
had to go on . . . was the bare report of an unknown, unaccountable informant who
neither explained how he knew about the gun nor supplied any basis for believing
he had inside information about [the defendant].” (Id. at p. 271.) “The high court
held the tip insufficient to justify a brief detention and patdown search, absent
some independent corroboration of the reliability of the tip and the tipster’s
assertion of illegal conduct. [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078,
1084.)
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The police contact at issue in Florida v. J.L., supra, 529 U.S. 266, was a
detention. Therefore, officers were required to “reasonably conclude in light of
[their] experience that criminal activity may be afoot . . . .” (Id. at pp. 269-270,
quoting Terry v. Ohio (1968) 392 U.S. 1, 20.) The reliability of the tip is essential
in this context because “[t]he reasonableness of official suspicion must be
measured by what the officers knew before they conducted their search.” (Id. at p.
271.)
Here, however, the encounter between the police and the homeowner was
plainly consensual. Officer Hunter spoke with Ortega at her doorway and asked if
she knew Juan Rivera. Ortega told the officers to “come inside,” and gave them
permission to search her home. There is no evidence that Ortega’s consent to
search was other than free and voluntary.1

1
It is debatable whether defendant could have asserted a Fourth Amendment
challenge to the validity of Ortega’s consent. In order to do so, defendant would
have had to claim that he had a legitimate expectation of privacy in Ortega’s
home. A warrantless search may be based on the consent of a person, other than
the accused, who has control over the area searched. “[T]he defendant may
challenge the validity of the consent insofar as the search infringed his own
expectations of privacy under the Fourth Amendment.” (People v. Boyer (2006)
38 Cal.4th 412, 445.) The “capacity to claim the protection of the Fourth
Amendment depends . . . upon whether the person . . . has a legitimate expectation
of privacy in the invaded place.” (Rakas v. Illinois (1978) 439 U.S. 128, 143.) A
defendant has the burden to establish a legitimate expectation of privacy in the
place searched. (See id. at pp. 130-131, fn. 1; see also People v. McPeters (1992)
2 Cal.4th 1148, 1172.)
In the trial court, defendant acknowledged that Ortega had given the
officers permission to search and did not challenge the voluntariness of that
consent. For this reason, the People had no reason to argue that defendant lacked
a reasonable expectation of privacy in the premises or to object to defendant’s
failure to create such a record.
In its briefing in this court, the People describe defendant as a “guest.”
Even accepting this characterization, we do not know if defendant was an
overnight guest who may claim a legitimate expectation of privacy in the premises

(footnote continued on next page)
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Unlike a detention, a consensual encounter between a police officer and an
individual does not implicate the Fourth Amendment. It is well established that
law enforcement officers may approach someone on the street or in another public
place and converse if the person is willing to do so. There is no Fourth
Amendment violation as long as circumstances are such that a reasonable person
would feel free to leave or end the encounter. (Florida v. Bostick (1991) 501 U.S.
429, 434-435; Florida v. Royer (1983) 460 U.S. 491, 497; In re Manuel G. (1997)
16 Cal.4th 805, 821.)
Consensual encounters may also take place at the doorway of a home. In a
frequently cited opinion, one federal appeals court stated more than forty years
ago: “Absent express orders from the person in possession against any possible
trespass, there is no rule of private or public conduct which makes it illegal per se,
or a condemned invasion of the person’s right of privacy, for anyone openly and
peaceably, at high noon, to walk up the steps and knock on the front door of any
man’s ‘castle’ with the honest intent of asking questions of the occupant thereof
— whether the questioner be a pollster, a salesman, or an officer of the law.”
(Davis v. United States (9th Cir. 1964) 327 F.2d 301, 303.) This view “has now
become a firmly-rooted notion in Fourth Amendment jurisprudence.” (United
States v. Crasper (9th Cir. 2007) 472 F.3d 1141, 1146.)
Consensual encounters require no articulable suspicion of criminal activity.
(In re Manuel G., supra, 16 Cal.4th at p. 821; Wilson v. Superior Court (1983) 34
Cal.3d 777, 784.) Therefore, the genesis and reliability of the tip precipitating the

(footnote continued from previous page)

(Minnesota v. Olson (1990) 495 U.S. 91, 98-100) or simply a temporary visitor for
whom we may not impute such an expectation. (See Minnesota v. Carter (1998)
525 U.S. 83, 91.) However, for purposes of addressing the sole issue presented in
this appeal, we will assume, as do both parties, that defendant had an expectation
of privacy in Ortega’s premises.
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encounter is irrelevant. To require that officers corroborate an anonymous tip
before approaching a residence to speak with its occupants demands a level of
suspicion that has never been an element of consensual encounters.
There are many reasons why an officer might seek to speak with someone
at his or her residence. The People, as did the dissenting justice in the Court of
Appeal, describe the particular conduct of the officers here as a “knock and talk”
procedure. A number of federal and state courts employ this phrase to describe
“officers knocking on the door of a house, identifying themselves as police
officers, asking to talk to the occupant about a criminal complaint, and eventually
requesting permission to enter.” (State v. Reinier (Iowa 2001) 628 N.W.2d 460,
466.) Federal courts have recognized the “knock and talk” consensual encounter
as a legitimate investigative technique. (See United States v. Thomas (6th Cir.
2005) 430 F.3d 274, 277, citing cases.)
In
People v. Jenkins (2004) 119 Cal.App.4th 368, the Court of Appeal
considered a “knock and talk” procedure in which officers knocked on the door of
the defendant’s motel room during the daytime, asked for identification and
whether she was on parole. The defendant said she was not a parolee and
consented to a search of her room where the officers found methamphetamine.
(Id. at pp. 370-371.) The trial court concluded the “knock and talk” procedure
violated the Fourth Amendment, equating the “knock and talk” practice to an
investigative detention. The Court of Appeal reversed, stating: “[T]here is
nothing in our constitutional jurisprudence that makes it illegal for police officers
to knock on a person’s door unless they first reasonably suspect the person has
committed a crime.” (Id. at p. 374.) The Court of Appeal relied on United States
v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1109, for the principle that “the ‘knock
and talk’ procedure does not rise to the level of an investigative detention
requiring an articulable suspicion of criminal activity.” (People v. Jenkins, supra,
119 Cal.App.4th at p. 372. Instead, the Jenkins court framed the proper inquiry as
whether the police encounter with the defendant was consensual under the totality
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of the circumstances. (Id. at p. 374; see also United States v. Crasper, supra, 472
F.3d at pp. 1141, 1143-1144, [officers used “knock and talk” at motel room to
speak with occupant and determine if he was the person identified in an arrest
warrant]; United States v. Weston (6th Cir. 2006) 443 F.3d 661, 666-667 [officers
used “knock and talk” to approach the front door, inquire about stolen vehicles and
seek consent to search the property]; Redden v. State (Ind.Ct.App. 2006) 850
N.E.2d 451, 455-456 [officers conducted “knock and talk” after confidential
informant advised of methamphetamine manufacturing at the residence]; Gompf v.
State (Wyo. 2005) 120 P.3d 980, 986-987 [acting on an uncorroborated tip about a
stolen handgun, officers conducted a “knock and talk” to speak with the tenant and
obtain consent to search]; People v. Frohriep (2001) 247 Mich.App.692 [637
N.W.2d 562, 564-565, 568] [acting on information that defendant might have
controlled substances on property, police used “knock and talk” to approach
defendant in yard and request permission to search].)
Defendant urges us to establish a new rule that police must corroborate an
anonymous tip before seeking consent to search a residence. He argues that
without such a rule, anonymous, untraceable persons could all too easily dispatch
officers to the home of a perceived enemy, setting in motion an intrusive or
embarrassing home search. He complains that allowing police to contact
occupants of homes without taking minimal steps to corroborate anonymous tips
renders officer “agents of the malicious” and imperils the sanctity of the home.
Quoting Georgia v. Randolph (2006) 547 U.S. 103, 126 S.Ct. 1515, 1523,
defendant emphasizes that “ ‘the home is entitled to special protection as the
center of the private lives of our people.’ ”
The sanctity of the home is not threatened when police approach a
residence, converse with the homeowner, and properly obtain consent to search.
The Fourth Amendment’s prohibition against warrantless searches of homes does
not apply when voluntary consent to the search has been given by someone
authorized to do so. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.) Regardless
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of the tip that brought the officers to Ortega’s door, it was her consent that allowed
them to enter and search. There is no evidence that this consent was involuntary.
Ortega had the right to refuse to speak with the officers and to deny them entry.
As this court observed in People v. Ledesma (2006) 39 Cal.4th 641, 704, a request
to enter and search “by its nature, carries the implication that permission may be
withheld.” No heightened level of Fourth Amendment scrutiny arises in this
consensual contact, either because it was precipitated by an anonymous tip or
because it occurred at a home.

Nevertheless, after receiving consent to search the residence, the officers
required a lawful basis on which to detain defendant. The Court of Appeal
majority erroneously determined that the initial contact between the officers and
the homeowner was improper. It did not analyze whether the officers acted with
proper justification once they found defendant in the shed. The lawfulness of that
detention and search is beyond the scope of the single issue for which this court
granted review. Thus we reverse the judgment and remand for further
proceedings. On remand, the Court of Appeal should consider whether, after the
officers’ legitimate entry, their detention and search of defendant was proper under
the Fourth Amendment.
III. DISPOSITION

The judgment of the Court of Appeal is reversed and the matter is
remanded for proceedings consistent with this opinion.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rivera
__________________________________________________________________________________

Unpublished Opinion

NP opn. Filed 10/6/05 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S138898
Date Filed: June 14, 2007
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Harry Mark Elias

__________________________________________________________________________________

Attorneys for Appellant:

Steven J. Carroll, Public Defender, Matthew C. Braner and Cynthia Grimm, Deputy Public Defenders, for
Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez, Steve Oetting and Felicity
Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew C. Braner
Deputy Public Defender
233 A Street, Suite 300
San Diego, CA 92101
(619) 338-4705

Felicity Senoski
Deputy Attorney General
110 A Street, Suite 1100
San Diego, CA 92101
(619) 645-2607

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Opinion Information

Date:	Docket Number:
Thu, 06/14/2007	S138898

Disposition
Jun 14 2007	Opinion: Reversed

Dockets
Nov 14 2005	Petition for review filed   Respondent (The People) by counsel
Nov 16 2005	Received Court of Appeal record   1 doghouse
Jan 3 2006	Time extended to grant or deny review   to and including February 10, 2006
Jan 18 2006	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ. Chin, J., was absent and did not participate.
Feb 16 2006	Request for extension of time filed   requesting a 14 day extension to file respondent's opening brief on the merits. The people, respondent by Felicity Senoski, counsel
Feb 23 2006	Opening brief on the merits filed   The People, respondent by Felicity Senoski, counsel
Feb 24 2006	Extension of time granted   to March 3, 2006 to file respondent's opening brief on the merits.
Mar 7 2006	Request for extension of time filed   to May 15, 2006 to file appellants answer brief.
Mar 16 2006	Extension of time granted   to May 15, 2006 to file appellant's answer brief on the merits.
May 3 2006	Request for extension of time filed   to May 30, 2006 to file appellant's answer brief on the merits.
May 11 2006	Extension of time granted   to May 30, 2006 to file appellant's Answer Brief on the Merits.
May 25 2006	Request for extension of time filed   to June 6, 2006 to file appellant's answer brief on the merits.
Jun 1 2006	Extension of time granted   to June 6, 2006 to file appellant's answer brief on the merits.
Jun 6 2006	Answer brief on the merits filed   Juan Rivera, Appellant by Mathhew Braner, counsel
Jun 8 2006	Motion to dismiss filed (non-AA)   Juan Rivera, appellant Matthew Braner, counsell
Jun 19 2006	Opposition filed   by respondent, The People, to appellant's motion to dismiss review by Felicity Senoski, counsel
Jun 21 2006	Request for extension of time filed   to July 10, 2006 to file respondent's reply brief.
Jun 26 2006	Extension of time granted   to July 10, 2006 to file respondent's reply brief on the merits.
Jun 29 2006	Filed:   reply to the attorney general's opposition to appellant's motion to dismiss review. with permission
Jul 11 2006	Reply brief filed (case fully briefed)   The People of the State of California, respondent by Felicity Senoski, counsel
Apr 3 2007	Case ordered on calendar   to be argued Tuesday, May 1, 2007, at 9:00 a.m., in San Francisco
Apr 18 2007	Motion to dismiss denied   The appellant's motion to dismiss filed on June 8, 2006, is denied.
May 1 2007	Cause argued and submitted
Jun 13 2007	Notice of forthcoming opinion posted
Jun 14 2007	Opinion filed: Judgment reversed   and the matter is remanded for proceedings consistent with this opinion. Majority Opinion by Corrigan, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Jul 16 2007	Remittitur issued (criminal case)
Jul 23 2007	Received:   Receipt for Remittitur from Court of Appeal, Fourth Appellate District - Division One
Jul 26 2007	Returned record   One doghouse returned to Court of Appeal, Fourth Appellate District - Divison One.

Briefs
Feb 23 2006	Opening brief on the merits filed
Jun 6 2006	Answer brief on the merits filed
Jul 11 2006	Reply brief filed (case fully briefed)

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