Bird Sees Loss of Privacy From Ruling on Searches

A warrantless search of a robbery victim’s home was upheld by the state Supreme Court on Monday, prompting a harsh dissent from Chief Justice Rose Elizabeth Bird, who charged that as a result, crime victims will lose privacy rights.

The 5-1 ruling allows Orange County authorities to reinstate drug charges against a Newport Beach man who was arrested in 1983 after police, responding to a robbery call, searched the man’s apartment and found marijuana, cocaine, and drug paraphernalia.

The opinion by Justice Malcolm M. Lucas appeared to be narrow, applying only to the unusual case at hand.

But Bird, in the lone dissent, said the ruling “marks the beginning of a new era of warrantless searches in this state.”

“Contrary to the suggestion, of the dissent,” Lucas responded, “our holding does not signal a retreat from past rulings or a departure from established principles.”

The case began when Newport Beach police, investigating a robbery at a large apartment complex, saw a pool of blood in a hallway outside the apartment of Danny Joe Tamborino. The officers knocked at the door, and when there was no answer, they kicked their way in and found Tamborino in a bathrobe and bleeding from the head, according to court records.

The officers, unsure whether Tamborino was a robbery victim or a suspect, put handcuffs on him, and immediately searched the apartment for other victims. During the search, they spotted drugs and paraphernalia on a coffee table and in a bedroom, according to court records.

Arrests on Drug Counts

Tamborino and his roommate, identified in court records as Danny Joe Smith, were subsequently arrested for investigation of various drug charges. A Superior Court judge upheld the search. But a state Court of Appeal ruled that the officers had no right to search the apartment without a warrant and ordered the case dismissed.

Overturning the appellate court, the Supreme Court said Monday that “the discovery of one wounded victim afforded reasonable cause to enter and briefly search for additional victims.”

Lucas continued by writing that “given the exigency presented here and our reluctance to second-guess split-second decisions of officers faced with potentially dangerous situations, we conclude that the officer acted reasonably in this case.”

While Lucas several times said the ruling applied only to the case at hand, Bird interpreted it broadly, saying the decision means that “a victim of a crime (relinquishes) the privacy of his home merely because he is injured in the course of a crime committed there.

“The majority do not even require the police to ask an otherwise alert and conscious crime victim whether other injured persons are inside before invading the privacy of his home. Such a complete lack of respect for a crime victim’s privacy rights cannot be justified. . . .

“Henceforth, in order to escape the Constitution’s warrant requirement, an officer need merely claim that the crime victim appeared to be a suspect--no matter how unreasonable that contention--and cite the ever-present possibility of additional individuals inside the dwelling.”

Deputy Orange County Dist. Atty. Craig McKinnon, who argued the case before the high court, said he expected that the drug prosecution of Tamborino and Smith would proceed.