Lead Opinion
Opinion
In this matter we conclude a party who is absent at the time of a search of his
Following denial of his suppression motion, defendant pleaded guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and was placed on three years’ probation. He appeals challenging only the denial of his suppression motion. (Pen. Code, § 1538.5, subd. (m).) We affirm.
Facts and Procedural History
Defendant lived in Rocklin, California, with his fiancée, Elizabeth Cunnagin, and their five-year-old daughter. On the evening of December 8, 1997, Cunnagin had to study for finals in her nursing classes and defendant took the couple’s child to a babysitter. Defendant left around 7:00 or 7:15 p.m. and was expected to return in half an hour.
While defendant was away, five Placer County Sheriff’s deputies served a search warrant on the residence. They opened a wooden gate and walked up to the front door. A deputy knocked on the door and announced “Sheriff’s Department, search warrant, we demand entry.” Hearing no response, he knocked and gave notice again. There was still no response. Another deputy tried the door handle and, finding the door unlocked, opened it slightly. The deputies entered together. They estimated 15 to 20 seconds had elapsed between their first knock and their entry.
The deputies found Cunnagin sitting on or getting up from a couch in the living room. She was surrounded by books and papers and appeared to be doing homework. According to the officers, music was playing, but not loudly; it was not audible from outside.
Cunnagin testified she did not hear the deputies open the gate to the residence and did not hear a knock or announcement before the deputies entered. The first thing she heard was the click of her front doorknob. The deputies seized, handcuffed, and questioned Cunnagin, but did not arrest her. No contraband was found in the house, but marijuana was found in the garage.
Defendant returned home and opened his garage door to find three deputies inside conducting a search. He was placed in custody and thereafter charged with possession of marijuana for sale. (Health & Saf. Code, § 11359.)
Defendant moved to suppress the evidence obtained in the search of his residence on the ground the deputies violated Penal Code section 1531, rendering the subsequent search “unreasonable” under the Fourth Amendment to the United States Constitution. The trial court denied the motion, concluding defendant’s absence from the residence deprived him of the right to challenge the alleged knock-notice violation. At defendant’s request, the court went on to rule that 15 to 20 seconds was not long enough for the deputies to have waited to satisfy the knock-notice requirement under the circumstances presented.
Defendant thereafter pleaded guilty to the charged offense and was placed on three years’ probation.
I
Defendant’s Right to Challenge the Knock-notice Violation
The United States Supreme Court has declared as a matter of federal constitutional law: “[T]he common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.” (Wilson v. Arkansas (1995)
Under the Fourth Amendment, a person may challenge the legality of a search or seizure only if he can show a personal interest in the privacy of the place searched or the item seized; he may not vicariously challenge the alleged violation of another’s interests. (Rakas v. Illinois (1978)
In assessing a defendant’s right to challenge a particular Fourth Amendment violation, it is useful to consider the interests sought to be protected by the rule at issue. California courts have identified the following rationale for knock-notice: “ ‘(1) The protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations]; and (4) the protection of police who might be injured by a startled and fearful householder.’ ” (People v. Peterson (1973)
We are aware of no post -Wilson California decisions which have considered an absent party’s right to challenge a knock-notice violation under the Fourth Amendment. However, at least three sister state decisions have considered the issue. Of these, Mazepink v. State (1999)
Here, as in Mazepink, defendant had a legitimate expectation of privacy “grounded in his right to exclude others [,] to be free of illegal police invasion of his privacy in his residence . . . [and] to expect not only privacy for himself, but for his family and invitees . . . .” (Mazepink, supra,
Furthermore, defendant has a right to be protected from the unnecessary destruction of his property. Of course, in Mazepink, the police literally broke into the defendant’s home. However, the level of defendant’s protected interest in the premises does not depend on the fortuity of whether the police actually break down his door (see People v. Rosales, supra,
The People cite three federal appellate decisions which held or suggested that parties not present when the police search their residences may not assert a violation of the federal “knock and announce” statute (18 U.S.C. § 3109). (See U.S. v. Zermeno (9th Cir. 1995)
Furthermore, DeLutis and Valencia-Roldan predate Wilson and do not consider the defendants’ claims in light of the Fourth Amendment. (Valencia-Roldan, supra,
DeLutis, the earliest of the cited decisions, relies on a rationale for the federal “knock and announce” statute which is less comprehensive than the California courts’ rationale for Penal Code section 1531, which is grounded in Fourth Amendment concerns. (DeLutis, supra,
Valencia-Roldan, the second in time of the cited decisions, offers no reasoning or authority for its holding, merely asserting it baldly in a footnote. (Valencia-Roldan, supra,
For all the above reasons, we conclude defendant had a reasonable expectation of privacy in the residence searched sufficient to allow him to assert a knock-notice violation.
II
Knock-notice Violation
Defendant contends the trial court correctly concluded the officers waited an unreasonably short time before entering the residence.
In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact, both express and implied, if supported by substantial evidence. We then independently apply the pertinent legal principles to those facts
Penal Code section 1531 provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.” Entry through an unlocked but closed door is a “breaking” within the meaning of this statute. (People v. Rosales, supra,
The trial court made two findings of fact pertinent to this matter: (1) the officers waited 15 to 20 seconds after first knocking before entering the residence, and (2) the officers had no reason to believe there was anyone present in the residence at the time of entry. Implicit in these express findings is an additional finding that the officers did in fact knock and announce their presence and purpose before entering. These findings are supported by substantial evidence. From the foregoing, the trial court concluded there had been a violation of knock-notice.
In light of the trial court’s factual findings, its determination of a knock-notice violation is necessarily premised on the length of time the officers waited before entry. In effect, the court concluded a 15-to-20-second delay, under the circumstances, did not amount to a refused admittance, i.e., the officers did not give the occupant a sufficient time to respond.
Assuming the trial court was correct in this regard, the inquiry does not end there.
Although a violation of knock-notice could render a search unreasonable within the meaning of the Fourth Amendment (see Wilson, supra,
In People v. Tacy, supra,
In People v. Trujillo, supra,
The concept of substantial compliance, as reflected in the foregoing cases, is consistent with general principles of Fourth Amendment analysis. As explained previously, the federal high court held in Wilson that a violation of knock-notice is part o/the reasonableness inquiry under the Fourth Amendment. (Wilson, supra,
. In Richards v. Wisconsin (1997)
“As Richards makes clear, Wilson neither announced an absolute knock- and-announce rule nor created categorical exceptions to the rule for felony drug cases.” (Aponte Matos v. Toledo Davila (1st Cir. 1998)
In Rodriguez v. Superior Court (1988)
In the present matter, although there was a technical violation of the knock-notice requirement in that the officers did not wait a sufficient time before entering, the essential Fourth Amendment inquiry is whether, under the totality of the circumstances, the policies underlying the knock-notice requirement have nevertheless been served. (Trujillo, supra,
Under the facts of this case, none of these policy concerns is implicated. The officers approached the front door of the residence and knocked and announced their presence and purpose twice. They waited 15 to 20 seconds before proceeding further. They turned the handle on the unlocked door and opened it slightly before opening it all the way and entering. The officers did not rush the occupant or destroy property. There is nothing in the record to suggest either the occupant or the officers were ever at risk.
“ ‘To the extent that the [knock-notice] rule prevents violence, its utility is exhausted when the actual announcement is made. . . . [¶] The interest in preventing the unnecessary destruction of private property is clearly not present when officers enter through an unlocked door. . . . [¶] . . . The simple fact is that a homeowner has no right to prevent officers armed with a warrant . . . from entering his home. At the most, the “refusal of admittance” requirement gives him a few moments to decide whether or not he will open the door himself. [Citation.] [¶] . . . [L]ittle, if anything is gained by permitting the occupant to open the door to an entry that he cannot legally resist.’ ” (People v. Uhler (1989) 208 Cal:App.3d 766, 770 [
While 15 to 20 seconds might be too short of a wait for “a house of gargantuan proportions” or a search “during a time normally associated with sleeping” (see People v. Elder, supra, 63 Cal.App.3d at p. 739), here the residence was only 1,500 to 1,800 square feet in size and the search occurred in the early evening. “If an acknowledging voice from within had responded, 20 seconds may have been too short a time to wait.” (Ibid.) However, the officers here heard nothing; no sound of feet approaching the door and no voice suggesting a response was forthcoming. Under the totality of the circumstances presented in this matter, we conclude the officers substantially complied with the knock-notice requirement and suppression of the evidence was properly denied.
Disposition
The judgment is affirmed.
I concur.
I agree the knock-notice (or knock and announce) rule, although codified in California
But this does not mean every search which violates the knock-notice rule requires exclusion of evidence. I agree with Justice Hull that the severity of a knock-notice violation must be assessed before concluding the Fourth Amendment has been violated. Wilson held knock-notice forms a component of the Fourth Amendment reasonableness calculation, but did not hold all knock-notice violations were Fourth Amendment violations. The dissenting opinion fails to address this point. The lead opinion does not hold that substantial compliance excused the knock-notice violation, only that it serves to avoid the need to apply the draconian remedy of excluding relevant evidence from the trial. In other words, it takes more than a close call, that is, waiting a few more seconds, to create a search that is unreasonable under the Fourth Amendment.
The use of the term “substantial compliance” is confusing as it obscures the Fourth Amendment analysis. Only after a court finds a violation of the knock-notice statute does the question whether there was an unreasonable search under the Fourth Amendment arise. The phrase “substantial compliance” sometimes conflates two distinct questions. Did the search violate the knock-notice statute and did other facts excuse the violation? In this case, an unexcused statutory knock-notice violation occurred. But that does not mean that there was an unreasonable search that would compel the exclusion of relevant evidence.
Even if the facts did show a Fourth Amendment violation, I write separately to explain another ground for affirmance: inevitable discovery. The trial court did not address this principle, although it was briefed and argued by the district attorney in the trial court.
In 1982 the People of the State of California amended the California Constitution to require that except for a statute passed by two-thirds of the Legislature, and exceptions not here applicable, “relevant evidence shall not be excluded in any criminal proceeding[.]” (Cal. Const., art. I, § 28, subd. (d).)
This state constitutional provision, the “Right to Truth-in-Evidence,” cannot trump exclusionary rules that are compelled by the Constitution of the United States. (In re Lance W. (1985)
The application of inevitable discovery to knock-notice violations was briefed before the United States Supreme Court by the California Attorney General, but the court declined to decide the point. (Wilson, supra,
While the California Supreme Court has held, generally, that violation of knock-notice. makes a search “ ‘unreasonable’ ” (Duke v. Superior Court, supra,
Opponents of the application of inevitable discovery to knock-notice violations argue it eviscerates the knock-notice rule. I disagree. The rule stands; only the remedy differs. Given the clear command of article I, section 28, subdivision (d) of our Constitution, we are not free to favor the exclusionary remedy over other remedies. As stated by our Supreme Court, “[T]he members of this court have diverse views regarding the importance and proper scope of the exclusionary rule as it has developed over the years. Faced with a constitutional amendment adopted by initiative, however, we are obliged to set aside our personal philosophies and to give effect to the expression of popular will, as best we can ascertain it, within the framework of overriding constitutional guarantees.” (In re Lance W., supra,
There are ways to deter illegal conduct by peace officers without letting criminals escape punishment, including training, discipline, consent decrees and civil damage actions. (See, e.g., Bivens v. Six Unknown Fed. Narcotics Agents (1971)
The dissent argues that “an unenforceable rule—one whose violation has no adverse consequences for the violator—is in effect no rule at all.” (Dis. opn., post, at p. 1233.) This is true, but the exclusion of relevant evidence is not the only and not even the most effective technique to enforce the statutory and constitutional “knock-notice” rule. We, the judiciary, cannot claim that we and we alone wield the only power or possess the only wisdom to enforce rules.
Under the federally mandated exclusionary rule, the “fruits” of illegal conduct by peace officers are excluded, to deter Fourth Amendment violations. (Wong Sun v. United States (1963)
The second of these exceptions is referred to as the inevitable discovery rule. “The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory
The rule poses a factual causation question: Would the evidence have been found, absent the illegal conduct? “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received.” (Nix, supra,
As Judge Richard Posner recently explained: “Concern with the frequent disproportionality of the sanction of exclusion has led judges to create exceptions to the exclusionary rule, itself a rule of federal common law (that is, of judge-made law) rather than a part of the Fourth Amendment itself and so amenable to judge-made adjustment. . . . [T]he exception that is most pertinent to this case goes by the name of ‘inevitable discovery’ and refuses to suppress evidence seized in an unconstitutional search if it is shown that the evidence would ultimately have been seized legally if the constitutional violation had not occurred. [Citations.] In other words, just as careless or even willful behavior is not actionable as a tort unless it causes injury, [citation], so there must be a causal relation between the violation of the Fourth Amendment and the invasion of the defendant’s interests for him to be entitled to the remedy of exclusion. In a case of inevitable discovery, the defendant would by definition have been no better off had the violation of his constitutional rights not occurred, because the evidence would in that event have been obtained lawfully and used lawfully against him.” (U.S. v. Stefonek (7th. Cir. 1999)
The United States Supreme Court has not suggested the inevitable discovery rule applies to some, but not other, exclusionary rules and, in particular, it has left open the application of the exception to situations involving violations of the knock-notice rule. (Wilson, supra,
The dissent would apply decisions predating Nix, supra,
Here, assuming the decision of the trial court was correct, the error was not waiting long enough after knocking. Had the officers waited a few seconds longer, the trial court would have found they were justified in concluding the house was empty or occupants were impliedly refusing
But there is no question the officers were going to enter. What difference would those few seconds have made to the search? None. It is undisputed the only occupant of the house was not poised to destroy the evidence in those few moments which would have made the difference between compliance and noncompliance with the knock-notice rule. Elizabeth Cunnagin was surprised and “seemed a little hurt” when she learned what the deputies found. Defendant’s theory in the trial court was Cunnagin had nothing to do with the drugs, and “There was nothing to indicate that she had been attempting to destroy evidence.” Accordingly, the evidence was not discovered because of the knock-notice violation, it would have been found anyway. Its discovery and seizure were “inevitable.”
I am joined in my view by persuasive dicta from a federal circuit court and by the decisions of the Michigan Supreme Court.
Judge Easterbrook found it unnecessary to decide the issue in a recent case, where even as a team of officers battered in the front door of a house, another team apprehended the defendant on the back lawn. But he said, “A causal link between unlawful police conduct and a seizure is necessary but not sufficient to justify the exclusion of reliable evidence. The inevitable discovery doctrine [citation], and the independent source doctrine, [citation], show that violations of the fourth amendment do not automatically lead to suppression even when the constitutional wrong plays a causal role in the seizure (at least, in the timing of the seizure). Because the exclusionary rule ‘detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions’, [citation], the Supreme Court is unwilling to sanction its use in marginal cases. [Citation.] Wilson reserved the question whether (and, if so, how) the inevitable-discovery and independent-source exceptions to the exclusionary rule apply to searches deemed unreasonable only because officers armed with a warrant failed to make a proper announcement at the door. [Citation.] It is hard to understand how the discovery of evidence inside a house could be anything but ‘inevitable’ once the police arrive with a warrant; an occupant would hardly be allowed to contend that, had the officers announced their presence and waited longer to enter, he would have had time to destroy the evidence.” (U.S. v. Jones (7th Cir. 1998)
I agree with all but the last passage: Because it is undisputed in this case the only occupant was unaware of—and thus unprepared to destroy—the contraband, we do not have occasion to consider the application of the exclusionary rule, the independent source doctrine or the inevitable discovery doctrine, to a case where an occupant would have had a chance to destroy evidence of his criminality.
The Michigan Supreme Court, in post-Wilson decisions, has applied the inevitable discovery exception to knock-notice violations. In People v. Stevens (1999)
The Michigan courts have adhered to Stevens in subsequent cases. (People v. Vasquez (1999)
I agree the evidence was found following a knock-notice violation. That violation was minor and did not render the search unreasonable within the meaning of the Fourth Amendment. Even if such violation made the search unreasonable, this court has a duty to apply the inevitable discovery exception to such violations, pursuant to Nix, supra,
Because I concur with Justice Hull as to the lack of a Fourth Amendment violation, and because in my view even with such a violation the evidence was not subject to exclusion, it is not necessary for me to express any view as to the standing issue.
The trial court properly denied the motion to suppress, therefore the judgment should be affirmed.
Notes
The facts are taken from the transcript of the hearing on defendant’s motion to suppress evidence (Pen. Code, § 1538.5).
Cunnagin denied she had music playing, insisting she needed silence to study. The trial court made no factual finding as to this conflict in the evidence.
Of the other two out-of-state decisions, Com. v. Carlton (1997)
Following briefing on appeal, we directed the parties to submit supplemental letter briefs on the following: “The trial court found that the officers waited approximately 15 to 20 seconds from the first knock and announcement at defendant’s door to the moment they entered his residence. Under the totality of the circumstances, did the trial court err by concluding as a matter of law that this was an unreasonably short time to wait before entering?”
We also requested supplemental letter briefs on whether, assuming a knock-notice violation, the evidence seized at the residence was a suppressible fruit of that violation or whether the evidence would have been discovered anyway.
Because the trial court found defendant did not have a sufficient privacy interest in the premises to permit him to seek suppression of the evidence, it had no reason to consider whether suppression was an appropriate remedy under the circumstances.
The dissent argues Tacy and Trujillo are inapposite because, in both cases, the officers were aware somebody was inside when they forced entry. According to the dissent, this matter is controlled by Jeter v. Superior Court (1983)
The dissent accuses us of undertaking a post hoc analysis of whether the policies underlying the knock-notice requirement were implicated by the search in this matter. That is simply untrue. Unlike the dissent, which apparently considers it dispositive that the officers waited only 15 to 20 seconds before entering, we consider under the totality of the circumstances that the officers approached the front of the residence, they knocked and announced twice, they opened the door using the handle rather than breaking down the door, and they did not rush the occupant. This is not an after-the-fact rationalization but a description of the reasonable means by which the officers initiated their search. Although we indicate there is nothing to suggest the officers or occupant were ever at risk, this is based on the officers’ conduct leading up to the entry, which was not threatening, rather than what transpired thereafter. The suggestion that we have somehow created a “hindsight-makes-right” rule is nothing more than an attempt in vain to draw attention away from the dissent’s refusal to consider the totality of the circumstances presented in this matter to determine if the search was reasonable.
Concurrence Opinion
For reasons stated in Justice Hull’s opinion, I concur that defendant has standing to challenge the legality of the search and seizure. I respectfully dissent from the remainder of the lead opinion’s conclusions. I would hold that the officers’ conduct violated the knock-notice rule, the violation is not excused by “substantial compliance,” and no exception to the knock-notice rule permits the unlawfully seized evidence to come in. Therefore, this court should reverse and remand with directions to grant defendant’s motion to suppress the evidence.
I
The lead opinion decides the case against defendant by invoking “substantial compliance.” In other words, granting that a knock-notice violation occurred, the lead opinion brands it a mere technicality which did not frustrate the purposes of the knock-notice rule. I cannot agree. The officers’ violation of knock-notice was not merely technical, and the lead opinion’s novel extension of
The California Supreme Court held long ago that when evidence is illegally seized in violation of knock-notice and the violation is not excused by exigent circumstances, the evidence must be suppressed. (Duke v. Superior Court (1969)
The application of the “substantial compliance” doctrine to knock-notice does not mean that Duke’s rule of exclusion has been set aside. The courts that have made substantial-compliance findings in knock-notice cases have always been careful to explain that substantial compliance in this context means “ ‘actual compliance in respect to the substance essential to every reasonable objective of the [knock-notice] statute,’ as distinguished from ‘mere technical imperfections of form.’ ” (People v. Jacobs (1987)
A
When we asked the parties to brief the question whether the trial court was correct to find a knock-notice violation, defendant cited Jeter v. Superior Court (1983)
In Jeter, five police officers arrived at the defendant’s residence at 11:00 a.m. to serve a search warrant. The officers knocked on the front door and announced their presence and purpose. After waiting “a few seconds,” the lead officer knocked and yelled again. After another wait of “five or 10 seconds,” he turned the handle and pushed open the door. The officers found defendant and another person inside. (Jeter, supra,
The Court of Appeal held that the defendant’s motion to set aside the information should have been granted because the officers entered forcibly without first giving the occupants “an opportunity to surrender the premises voluntarily” and the defendant did not refuse the officers permission to enter. (Jeter, supra,
Jeter is on all fours with our case. Here, as in Jeter, the officers knocked and announced, heard no response, waited a few seconds, repeated the knock and announcement, waited a few seconds more, then entered without permission—all without ever receiving any information on which to base a belief that they were being refused entry. Indeed, in this case the trial court expressly found, “Given the fact situation in this case, this court would make a finding; that there was no reasonable basis for the police to believe that anyone was present in this home.” I would hold that under the rule of Jeter the trial court correctly found that the officers’ conduct violated the knock-notice rule.
B
The lead opinion finds that the officers’ conduct, if technically in violation of knock-notice, is nevertheless excusable under the doctrine of “substantial compliance.” The lead opinion errs.
The lead opinion accurately cites the pre-Wilson standard for substantial compliance in knock-notice cases: “ ‘Substantial compliance means “ ‘actual compliance in respect to the substance essential to every reasonable objective of the [knock-notice] statute,’ as distinguished from ‘mere technical imperfections of form.’ ” ’ (People v. Jacobs[, supra,]
What the lead opinion does not do is to cite any decision of the California Supreme Court, either pre- or post-Wilson, that holds police officers substantially complied with the knock-notice rule by failing to wait a reasonable time after knocking and giving notice before making a forcible entry. Nor do the decisions of the Court of Appeal on which the lead opinion relies state such a proposition. The lead opinion thus stretches the “substantial compliance” doctrine to unprecedented lengths to fit the facts here. Furthermore, the lead opinion’s sweeping extension of the doctrine does not serve “the policies underlying the knock-notice requirement” (Trujillo, supra,
The lead opinion mainly relies on Trujillo, supra,
The court in Trujillo held on the facts presented there that the officers’ conduct adequately served the privacy-protection rationale of knock-notice, apparently because the movement the officers heard allowed them to conclude reasonably that the occupant had been made aware of their presence and purpose. Thus, “[w]hile the case is a close one, ... the police delayed entry long enough after knocking and announcing themselves and their purpose to protect defendant’s reduced expectation of personal privacy . . . .” (Trujillo, supra,
In our case, as in Jeter (but not as in Trujillo), the officers heard no response to their knocks and announcements. Therefore, Trujillo’s main ground for finding substantial compliance is inapposite here. Based on the silence from inside defendant’s residence, the officers could not properly conclude that any occupant had received due notice of their presence and purpose. Thus, unlike the officers in Trujillo, they did not “delay [] entry long enough” (Trujillo, supra,
Tacy, supra,
Turning to our case, the lead opinion finds substantial compliance as follows: “Under the facts of this case, none of these policy concerns is implicated. The officers approached the front door of the residence and knocked and announced their presence and purpose twice. They waited 15 to 20 seconds before proceeding further. They turned the handle on the unlocked door and opened it slightly before opening it all the way and entering. The officers did not rush the occupant or destroy property. There is nothing in the record to suggest either the occupant or the officers were ever at risk.” (Lead opn., ante, at p. 1211, italics added.) The lead opinion’s finding is unpersuasive. The only part of the quoted paragraph that hints at an argument is the last sentence. That sentence is remarkable for two things: its unexamined reliance on hindsight, and its failure to explain how knowledge gained through hindsight can excuse knock-notice violations.
“Substantial compliance,” like “exigent circumstances,” is a court-made doctrine applied in retrospect to decide whether, in a particular set of circumstances, police officers’ failure to observe knock-notice protocol is excusable. It does not follow, however, that the courts may rely on after-the-fact information to make this call. It is settled that we must review claims of exigent circumstances based on what the police knew or reasonably believed when they entered the suspect’s residence, not on what later investigation may disclose. (People v. Ramey (1976)
As the lead opinion notes, one of the main purposes of the knock-notice rule is to protect both occupants of the residence and the police from the danger to which an unannounced forcible entry might expose
Worse yet, the lead opinion’s hindsight-makes-right rule would yield the same result if the police had simply battered down defendant’s door unannounced, provided no one was hurt. On the lead opinion’s reasoning, if no death or injury occurs, ipso facto whatever the police did substantially complied with the knock-notice objective of protecting police and occupant safety. A “substantial compliance” rule that sweeps so broadly would sweep knock-notice away.
In the knock-notice context, “[substantial compliance means ‘ “actual compliance in respect to the substance essential to every reasonable objective of the statute” (Jacobs, supra,
Finally, the lead opinion’s analysis is unacceptable because it will send a confusing signal to police officers who must apply the knock-notice rules on the street. The lead opinion sends the following message to police officers: you are supposed to wait a reasonable amount of time after knocking and announcing your presence before you enter a residence. But if you do not wait a reasonable amount of time, you may still be okay. The police may therefore act unreasonably without sanction.
I would not inject this uncertain “fudge factor” into the Fourth Amendment reasonableness analysis. I would tell the police that if they do not wait a reasonable amount of time before entering, they have acted unreasonably within the meaning of
For these reasons, then, I cannot agree with the lead opinion’s conclusion that the knock-notice violation in this case is saved by the doctrine of substantial compliance.
II
The learned concurring justice (with whom I have joined in many a prior opinion) proposes an additional ground for reaching the lead opinion’s result: assuming a knock-notice violation, he would treat it as ultimately trivial because the evidence comes in anyhow under the “inevitable discovery” exception to the exclusionary rule. He reasons that since the police had a valid search warrant, if they had executed the warrant without violating knock-notice they would “inevitably” have discovered the evidence they seized; therefore, because they could have obtained it by doing things right, it does not matter what they did wrong. The concurring justice opines that this result is not merely desirable, but compelled by article I, section 28, subdivision (d) of the California Constitution (hereafter article I, section 28(d)).
With respect, I cannot agree with this analysis. I shall first show that the concurring justice’s claim of constitutional compulsion lacks merit. I shall then explain why the application of “inevitable discovery” to knock-notice would gut the knock-notice requirement as effectively as would the lead opinion’s overbroad “substantial compliance” rule.
A
Under article I, section 28(d), the California courts may exclude relevant evidence in criminal proceedings only if such exclusion is compelled by the United States Constitution, as interpreted by the United States Supreme Court. Article I, section 28(d) gives the holdings and dicta of lower federal courts no more binding authority over us in this context than they have in any other—that is to say, none. (In re Lance W. (1985)
Although one would not know it from reading the concurrence, the last time the United States Supreme Court expressly spoke to the question of the appropriate remedy for a knock-notice violation it held that, if the violation is not excused by exigent circumstances, the illegally seized evidence must be excluded. (Miller v. United States (1958)
The concurring justice appears to conclude, however, that the high court has impliedly overruled Miller and Sabbath as to the required remedy for knock-notice violations by subsequently adopting the “inevitable discovery” exception to the exclusionary rule, which Miller and Sabbath supposedly could not have considered. (Nix v. Williams (1984)
The concurring justice cites (but does not quote) footnote 4 of Wilson, supra,
In short, unlike the concurring justice, I conclude that article I, section 28(d) does not permit us, let alone compel us, to declare on-point decisions of the United States Supreme Court no longer the law until and unless that court says so. It has not said so as to Miller and Sabbath. Therefore, I would follow those decisions under compulsion of the California Constitution.
B
Assuming arguendo, however—despite the compulsion of Miller, Sabbath, and article I, section 28(d)—that this court may consider the concurring justice’s “inevitable discovery” argument on the merits, I shall now demonstrate why it should be rejected. Like the lead opinion’s version of “substantial compliance,” its effect would be to kill the knock-notice rule, at least in every case where the police have a valid search warrant before entering a suspect’s residence.
As I have noted in part I ante, it has been generally undisputed until now in California that evidence seized in violation of knock-notice must be suppressed. (Duke, supra,
“The State urges us to adopt a remedy other than suppression of the evidence pursuant to the Fourth Amendment exclusionary rule. The State asserts that because the purpose of the exclusionary rule is to deter police misconduct, it would be inappropriate to exclude the evidence in this case because the decision to act illegally (not to knock and announce before forcing entry) was not motivated by a desire to gather evidence by any means other than a search warrant issued upon probable cause. We agree with Appellants,however, that exclusion is the only practical remedy for such police misconduct.” (Mazepink, supra, 987 S.W.2d at p. 656 .)
The court first noted federal and state authorities that had found exclusion required where knock-notice was violated and no exigent circumstances excused compliance, including Miller, supra,
“We reject the State’s argument that exclusion of the evidence is not appropriate because the evidence would have been inevitably discovered by legal means (the search warrant) despite the illegal entry. We also reject the State’s argument that there was an independent source for the evidence, namely the previously procured search warrant. These same arguments were offered by the government in Marts, [supra,]986 F.2d 1216 , and were rejected by the Eighth Circuit.
“In Marts, the government argued that even if the officers had waited an additional period of time (longer than five seconds), the exact same search would have been conducted and the exact same evidence would have been seized. Nonetheless, the court concluded that suppression of the evidence was mandated, stating that ‘[longstanding constitutional principles regarding unlawful search and seizure bar the government’s use of the fruits of an unlawful search simply because the officers “would have found it anyway.” ’ Id. at 1219 (footnote omitted). The Marts court also rejected the theory advanced by the dissent that the evidence should be admissible under the independent-source rule. The dissenting judge relied on Segura v. United States, [supra,]468 U.S. 796 . . . , as does the State in this case. Although the court initially rejected application of the independent-source rule on the ground that it was not raised below, it addressed the merits of the theory: ‘Under the dissent’s application of the independent source rule, the knock and announce rule codified under [18 U.S.C.] § 3109 would be meaningless since an officer could obviate illegal entry in every instance simply by looking to the information used to obtain the warrant. Under the dissent’s reasoning, officers, in executing a valid search warrant, could break in doors of private homes without sanction.’ Marts,986 F.2d at 1220 . The court then distinguished the facts of Segura, where the police entered the apartment without a warrant in order to secure it until a warrant could be obtained with previously known information. Although the initial entry was invalid, the search itself, pursuant to the subsequently obtained warrant, was determined to be reasonable because it was based on an independent source that provided probable cause for issuance of the warrant. The Eighth Circuit concluded: ‘The significant factor in Segura is that the search warrant and the evidence seized under it were totally unrelated to the illegal entry. In the present case the search warrant, although legally obtained, was executed in violation of [18 U.S.C.] § 3109, and its execution was directly connected to the illegal entry.’ Id. .. . We find that reasoning sound and directly applicable to the facts of this case, where the search warrant, although based on probable cause and otherwise legally obtained, was executed in violation of the Fourth Amendment ‘knock and announce’ rule, and its execution was directly connected to the illegal entry. We thus conclude that exclusion of the evidence is the appropriateremedy for the officers’ misconduct in this case. We concur with the Eighth Circuit that were we to hold otherwise, the ‘knock and announce’ rule would be rendered meaningless. . . .” (Mazepink, supra, 987 S.W.2d at pp. 657-658, italics added and omitted.)
In a decision focusing more squarely on “inevitable discovery,” a federal court explained even more compellingly why importing that doctrine (like the “independent source” doctrine) into the knock-notice context would effectively kill the knock-notice rule as to cases involving valid search warrants: “[I]t must be noted that application of the inevitable discovery doctrine to evidence seized after a clear violation of the [federal] ‘knock and announce’ statute would completely viscerate the fundamental privacy and safety interests the statute seeks to secure. If the exception were to apply, officers could obviate their obligation to provide notice of their authority and purpose prior to entering a person’s household whenever they had a valid warrant authorizing the search of the home. In those situations, officers would know their misconduct would have no unfavorable consequences, and simply stated, the exception would swallow the rule. Thus, [the federal statute], in effect, would be an empty vessel, as violations of the statute would not result in any sanction. [Citation.] Such a result is untenable, especially in light of the ‘knock and announce’ rule’s perdurance.” (Shugart; supra,
I acknowledge that a majority of the Michigan Supreme Court, in a decision even more recent than Mazepink, held that “inevitable discovery” applies to knock-notice cases. (Stevens, supra,
The concurring justice fails to address Richards directly. However, in response to the argument outlined above—that applying “inevitable discovery” to knock-notice would destroy the knock-notice rule in all cases involving valid search warrants—the concurring justice asserts: “The rule stands; only the remedy differs.” (Conc. opn., ante, at p. 1214.) To the extent this observation is meant to answer the high court’s concerns in Richards, it fails. The concurring justice ignores the reality that an unenforceable rule—one whose violation has no adverse consequences for the violator—is in effect no rule at all.
The concurring justice may mean to imply that knock-notice violations in search warrant cases would still have adverse consequences for the state, despite the automatic admission of the illegally seized evidence in every such case as “inevitably discovered.” If so, he fails to spell out what these consequences would be, or how any “remedy” other than exclusion could be sufficiently onerous to deter the evil—the illegal seizure of evidence in violation of knock-notice—that the exclusionary rule guards against. (Of course, the concurring justice goes on to assert that he is not required to spell out the alternatives to exclusion because article I, section 28(d) prevents us from “favor[ing] the exclusionary remedy over other remedies.” (Conc. opn., ante, at p. 1214.) As I have explained in part IIA. ante, of this dissent, in the knock-notice context article I, section 28(d) does no such
“The exclusionary rule serves several salutary purposes, but the United States Supreme Court ‘has stressed that the “prime purpose” of the exclusionary rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” ’ . . .” (In re Tyrell J. (1994)
Conclusion
For all the reasons stated above, I cannot join in the lead opinion’s result on any theory proposed by either the lead opinion or the concurring justice.
I would reverse and remand the matter to the trial court with directions to grant defendant’s motion to suppress the illegally seized evidence.
Appellant’s petition for review by the Supreme Court was denied January 17, 2001. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
So far as the concurring justice concludes otherwise, I explain in part II A., post, why that conclusion is untenable.
The lead opinion asserts that my reliance on Jeter is “misplaced.” (Lead opn., ante, at p. 1209, fn. 7.) I cannot agree.
The lead opinion appears to assert first that Jeter has been superseded by later developments in the law, but the lead opinion cites no such developments. The lead opinion says: “The court [in Jeter) applied the pre-Wilson California rule that a violation of Penal Code section 1531 alone renders the search unreasonable.” (Lead opn., ante, at p. 1209, fn. 7.) This assertion seems to imply that Wilson has somehow abrogated this rule, but the lead opinion fails to explain how Wilson v. Arkansas (1995)
The lead opinion also appears to assert that Jeter is inapposite or simply wrong because it does not discuss substantial compliance; however, the lead opinion does not explain how substantial compliance could apply to the facts of Jeter, and I see no reason why a court must expressly reject every legal theory that is patently inapplicable to the facts. The court was clearly aware of the substantial-compliance doctrine, since both of the decisions it distinguished had relied on that doctrine. (People v. Gallo, supra,
The lead opinion asserts that the Jeter court “did not consider any . . . factors in assessing reasonableness of the search” other than its finding of a Penal Code section 1531 violation. (Lead opn., ante, at p. 1209, fn. 7.) However, the lead opinion does not say what other factors the court should have considered. Thus this assertion, like those above, does not explain why my reliance on Jeter is “misplaced.”
The lead opinion also asserts that my approach consists of “lining up the prior cases and deciding which one is closest factually” and that this reveals my “unwillingness to confront the legal principles at issue.” (Lead opn., ante, at p. 1209, fn. 7.) To the assertion that I have found a case that is factually indistinguishable from this one, and that I rely on it, I say without hesitation: mea culpa.
The court’s reasoning is not altogether clear on this point. The court acknowledges that the officers could not be sure the movement they heard was that of a human being rather than, say, a dog. (Trujillo, supra, 217 Cal.App.3d at pp. 1226-1227.) Nor could they reasonably interpret the fact that the movement was not followed by anything further as an implicit refusal of entry. (Ibid.; see Jeter, supra,
The court distinguishes Jeter on the ground that its facts are not “identical” to those of the case before the court. (Trujillo, supra,
It is unclear whether the lead opinion deems it significant that the officers in Trujillo and in our case waited about the same length of time before entering: the lead opinion cites the officers’ 15-to-20-second delay in this case as though it were a material fact, but without explaining why the exact length of time matters. (See lead opn., ante, at p. 1207.) In any event, the court in Trujillo refused to hold that any particular length of time was sufficient to wait for purposes of compliance with knock-notice as a matter of law, reasoning that to adopt such a bright-line rule would “trivialize the policies behind the knock-notice rules.” (Trujillo, supra,
This flaw gapes just as widely in the concurrence’s “inevitable discovery” analysis, at least as to all cases where the police have a valid search warrant. (See pt. II, post.)
The lead opinion protests that my characterization of its rule as post hoc analysis and “ ‘hindsight-makes-right’ ” is “simply untrue.” (Lead opn., ante, at p. 1212, fn. 8.) The lead opinion then proceeds to prove it true. Reciting the facts once more, the lead opinion adds the refinement that “the officers’ conduct leading up to the entry . . . was not threatening . . . .” (Ibid.) In other words, the lead opinion persists in assessing the facts either from the supposed viewpoint of some hypothetical occupant of the residence about whose supposed presence, character, and knowledge of the officers’ actions they could have known nothing during the time “leading up to the entry,” or else from the viewpoint of a trier of fact who knew in hindsight that the actual occupant did not appear to have felt threatened once the officers entered. The lead opinion offers no reasoned response to my point that this sort of hindsight cannot be the standard for determining whether the officers’ actions were objectively reasonable (i.e., substantially complied with knock-notice). Nor does the lead opinion explain why its analysis would not logically lead to the conclusion that even conduct grossly in violation of knock-notice would display “actual compliance” (Jacobs, supra, 43 Cal.Sd at p. 843) with the objectives of knock-notice, provided this conduct did not result in tangible harm to persons or property.
It is difficult to tell whether the concurring justice has actually so concluded, since he does not mention Miller or Sabbath.
The People have also argued for the applicability of the “independent source” exception to the exclusionary rule, as adopted in Segura v. United States (1984)
The argument might be made that the high court had no occasion to discuss knock-notice in Nix because it was addressing constitutional issues and it had not yet held that knock-notice is such an issue. (Nix, supra, 467 U.S. at pp. 440-448 [104 S.Ct. at pp. 2507-2511, 81 L.Ed.2d at pp. 385-390]; see Wilson, supra,
Moreover, the high court in Nix did not address only the constitutional issue directly before it, which implicated the Sixth Amendment to the United States Constitution: it also pointed out that its analysis applied equally to issues arising under the Fourth and Fifth Amendments. (Nix, supra, 467 U.S. at pp. 441-442 [104 S.Ct. at pp. 2507-2508, 81 L.Ed.2d at pp. 385-386].) This renders Nix’s silence as to knock-notice, Miller, and Sabbath all the more baffling, if the high court truly intended Nix to sweep as broadly as the concurring justice would have it do.
Although I do not presume to read between the lines of high court decisions, I note that it was within the high court’s discretion as to how it chose to word its grant of certiorari, and the high court is free to request briefing from the parties on purely legal issues even if they were not addressed below.
In People v. Lamas, supra,
The fact, noted by the concurring justice, that the Michigan court has continued to follow its own holding in Stevens is neither surprising nor persuasive. State courts do not often reverse themselves in short order on constitutional issues if not compelled to do so by a higher authority (or if their membership is not radically changed by the outcome of an election).
Though acknowledging the federal precedents to the contrary, the majority finds more persuasive the first half of the following “dicta” from a recent Seventh Circuit decision: “. . . . It is hard to understand how the discovery of evidence inside a house could be anything but ‘inevitable’ once the police arrive with a warrant; an occupant would hardly be allowed to contend that, had the officers announced their presence and waited longer to enter, he would have had time to destroy the evidence. . . .” (U.S. v. Jones (7th Cir. 1998)
In the later-decided case, U.S. v. Stefonek (7th Cir. 1999)
Our Supreme Court has recently held that “inevitable discovery” did not justify the admission into evidence of a stolen car seized by the police after a warrantless entry into a garage attached to a residence, even though the police had already seen the car in plain view from outside the garage and identified it as stolen. (People v. Robles (2000)
The court in Robles had no occasion to consider the application of “inevitable discovery” to knock-notice or to entries made pursuant to search warrants. However, the court’s holding at the least shows a prudent wariness about the doctrine’s potential breadth, far different from the expansive approach of my concurring colleague. The court instead could have speculated counterfactually that if the police had not chosen to enter the garage without a warrant (or exigent circumstances) they would “inevitably” have decided to get a warrant, “inevitably” entered with the warrant, and “inevitably” seized the evidence lawfully. Each of these “inevitabilities” is as “inevitable” as any of the others, once one starts down that road.