Vol. 23 No. 24- Court Rules State Law Limits Peace Officers From Entering A Home To Seize Firearms After Taking “5150” Into Protective Custody, Outside Of The Home

December 17, 2008

California state law limits the authority of peace officers to enter the home of a mentally ill person, who was taken into custody for psychiatric evaluation while outside the home, to confiscate known firearms located in the home.

California’s Third Appellate District ruled, in People v. Sweig, 2008 Cal. App. LEXIS 1698 (Cal. App. 3d Dist. Oct. 27, 2008), that the Fourth Amendment right against warrantless entry by police into one’s home is not trumped by the mandates of Cal Wel & Inst Code § 8102 (“Section 8102”) which authorize police officers to temporarily seize firearms from the mentally ill who are a threat to themselves or others.

Summary of the Case

Peace officers had responded to a 911 hang-up call from Mr. Sweig, who lived in a remote rural area. When the officers arrived, “[Mr. Sweig] was on the porch holding a rifle. When told to put it down, he walked around the side of the trailer and soon came back without the rifle…. Defendant said that he had not eaten in two days and that he called 9-1-1 because people were harassing him by banging on the sides of the trailer and aiming laser lights at him, which emitted radiation that burned his skin. Defendant had fired a gun to make the people leave, but one of the harassers was still on the property. ‘There is one now with the flashlight,’ he said; however, officers did not see anyone.”

“Based on prior contacts with defendant, the officers knew that he had made similar complaints in the past and that his mother and aunt had reported defendant engaging in bizarre behavior. According to his mother, defendant said the community, his family, and law enforcement had ‘done him wrong’ and that if he was ‘pulled over by the cops’ he ‘was going to take them out.’  [The peace officers concluded] that defendant’s mental state was deteriorating and he was a danger to himself or others.”
“While defendant was [detained on a “5150” hold] in the backseat of a patrol vehicle, officers went into his trailer to confiscate the rifle they had seen him carrying and to search for other firearms…The officers found numerous firearms in the trailer.”

The court held that entering Mr. Sweig’s home to seize the firearms, after he was in custody, was unconstitutional police conduct.  Although California law (Section 8102) allows for the temporary seizure of firearms from a mentally disordered person who is a threat to himself or to others, if the person is taken into custody outside of his or her home then, even if there are known firearms in the home, the police cannot enter the home to seize firearms absent either consent or exigent circumstances.

Appellate Court Acknowledges a Catch-22 in the Law

Section 8102 mandates that firearms be seized pursuant to a “5150” hold for the protection of both the detainee and the public.  The concern is that upon release the “5150” may still pose a threat if there is easy access to firearms. However, the police cannot legally enter the home of someone taken into custody on a “5150” hold (outside the home) in order to seize known firearms simply on the basis of the “5150” hold.  The court held that as the law is currently written, “a search warrant could not have been obtained despite the legislative mandate” in Section 8102 that the firearms be seized.

The Court reasoned that “to permit, pursuant to section 8102, the confiscation of firearms or other deadly weapons in the residence of a mentally disordered person detained outside pursuant to section 5150, the Legislature should have authorized the issuance of a search warrant to do so (by amending Pen. Code, § 1524) or created guidelines for a ‘constitutionally adequate substitute for a warrant.’…It did not do so.”  (Emphasis added.)

The tacitly acknowledged Catch-22 by the Court is that there are no grounds in California Penal Code Section 1524 (which provides eight grounds for the issuance of a search warrant) for obtaining a search warrant to seize firearms in the home of a “5150” hold.  The Court stated that the decision was the direct result of “a legislative oversight with regard to statutes to prevent persons with mental disorders from harming themselves or others.”

Community Caretaker Exception Does Not Apply

The court rejected use of the “community caretaking” exception, which allows peace officers to prevent potential hazards from materializing, because the circumstances did not create the “necessity” for a warrantless entry. The fact that there are no provisions under current law to obtain a warrant in said situation does not in and of itself create a “necessity” for action.

As the Court explained, “Here, the People assert that under the community caretaking exception, the officers’ warrantless entry into defendant’s residence to seize his weapons pursuant to the mandate of section 8102 did not violate his Fourth Amendment rights. We are not persuaded.”

“As we understand the community caretaking exception, there must be some necessity for a warrantless entry into a residence to fulfill a purpose of the exception…Nothing suggested to the officers that it was necessary for them to make a warrantless entry into the residence to confiscate the rifle and additional firearms or other deadly weapons, rather than seek a warrant to do so.  Although it turns out that the officers could not have obtained a search warrant (a legal conclusion no doubt unknown to them at the time), this flaw in the statutory scheme does not, in our view, constitute a ‘necessity’ for actionthat would otherwise violate the Fourth Amendment to the United States Constitution.”  (Emphasis added.)

Appeal of Ruling to California Supreme Court

On December 12, 2008, the California Attorney General’s Office petitioned the California Supreme Court for review of the Third Appellate District’s ruling, stating that “review is necessary in this case to determine if these circumstances invoke the community caretaking doctrine.”

The Petition states that the “issue in this case is a warrantless entry conducted for the purpose of protecting the public and the section 5150 detainee from future harm, which is necessarily part of a peace office’s community caretaking function,” and that the “published decision in this case now prevents all law enforcement officers from complying with their public safety duty.”

The Petition argues that “[a]n entry into a section 5150 detainee’s residence to take temporary custody of deadly weapons known to be present falls within the community caretaking exception to the warrant requirement and complies with the Fourth Amendment.” The appeal is pending.

How This Affects Your Agency

Peace officers may take a mentally ill person into custody for 72-hour treatment and evaluation if the person is a danger to himself/herself or others. Peace officers may also temporarily confiscate firearms in the possession of a person so taken into custody.  (Cal Wel & Inst Code §§ 5150, 8102.)

However, until or unless the legislature or the courts “fix” the Catch-22 embedded in current law, even if there are known firearms at the residence of the mentally ill person taken into custody, a peace officer may not always enter the residence to seize the firearms.

In order to temporarily seize firearms in the home of someone in custody for being mentally ill, one of the following circumstances must apply: 1) the person is taken into custody while he or she is in the residence, thus allowing the peace officers to execute a protective sweep of the residence to seize the firearms; 2) consent is obtained to conduct the search of the residence by either the person taken into custody or by a joint homeowner; or 3) exigent circumstances exist, meaning there is an emergency which leaves no time to get a warrant.

As always, we urge that you confer with your agency’s legal counsel on matters involving the law.  If you wish to discuss this case in greater detail, feel free to contact Martin Mayer atmjm@jones-mayer.com or Chris Neumeyer at cfn@jones-mayer.com.