*1 S125572. Nov. [No. 2005.]
PEOPLE, Plaintiff and Respondent, MURPHY,
MILDRED Defendant and Appellant.
Counsel Smith, Court, Laurel Nelson under for Defend- appointment by Supreme ant and Appellant. General, Anderson,
Bill Robert R. Assistant Lockyer, Attorney Chief Attorney General, Schons, General, Shum, Quisteen W. Gary Assistant S. Attorney Crawford, General, Steven T. and Heather F. for Getting Deputy Attorneys Plaintiff and Respondent.
Opinion CHIN, We considerwhether in this case afforded J. sufficient to a exigency to conduct a search of a residence justify police entry rule, without usual “knock-notice” complying destruction prevent of evidence. We conclude “no-knock” the circum justified by stances, which included sales on contemporaneous, ongoing illegal drug inside, the reasonable inference that more premises, raising drugs (2) the officers’ that defendant for a knowledge was on offense probation drug and had consented to a warrantless search of her premises, unplanned confrontation with a noisy outside defendant’s suspect directly doorway, and (4) the officers’ loud announcement
suspect.
The foregoing conclusion makes it for us to unnecessary consider alternative People’s the so-called inevitable doctrine argument discovery violation, here validate search a applies despite knock-notice possible an (Hudson issue now before the United States Court. pending Supreme 27, 2005, 04-1360.) cert. June Michigan, granted No.
FACTS Defendant Mildred of her motion to Murphy denial appeals suppress Code, 1538.5, (Pen. (m)) evidence subd. after having guilty pleaded § Code, 11378). The (Health for sale & Saf. § methamphetamine possessing from the Court facts taken largely uncontradicted following circum- whether sufficient case. Because question this opinion facts, we the surrounding a close examination of stances existed on depends those in some detail. recite facts investigating on on
At 1:00 November approximately p.m. County the San Diego Santana of citizen’s Detective Alberto complaint, leave defend- Team observed woman Sheriff’s Street Narcotics Department Santana, residence, transaction drive away. suspecting dmg ant’s had obtained metham- the car. The driver admitted she taken place, stopped defendant. Santana decided conduct probation phetamine on (It that defendant was then probation defendant’s residence. is undisputed as a condition of had consented to warrantless searches her residence her probation.) of defendant’s
While Detective Marlow maintained surveillance He was familiar with Santana search. plan developed operational *4 house, had with defendant. Because the of the contact layout having previous bedroom had out of defendant’s converted Santana observed people coming decided search team should enter the garage, through garage. the he the surveillance, the a man in front greet Marlow observed defendant During house. house and a few her walked around the side the They reappeared something. later. they exchanging minutes It to Marlow appeared arrived, thereafter, the team Santana and other members of search Shortly clothes, with the word wearing but black vests plain bulletproof them, “Sheriffs” on and hats marked with the words “Sheriff’s Narcotics.” Once garage. Marlow also observed another man near defendant’s yet arrived, alerted Santana and other team Marlow the members this them to man’s presence. man, identified as the other officers this later
Santana and approached Thomaselli, near the comer clench- garage Michael who was standing at Thomaselli and in one hand. Santana ing something pointed gun “[i]n him, . . “Sheriff’s yelling,” Department. loud voice . said [a]lmost the team were Get The other members of ground.” Probation search. on had drawn. guns and all their they also “Sheriff’s yelling, Department,” and was holding a fence for defendant actually Thomaselli was repairing time at no interaction screws in his hand. The officers observed some between defendant Thomaselli. Thomaselli, a dog barking Santana heard
When officers confronted later, At five to seven seconds from inside defendant’s house. least loudly residence, Santana other of the team entered the members without said knocking. Santana he did knock because he knew that “anyone or in residence the bedroom would have heard us” at Thomaselli. yelling Santana testified that window was and a “seeing sliding glass dog opened we continued in.” Santana stakeout barking, believed team’s had been might and feared in the residence arm them- “compromise[d]” persons selves, evidence, or flee. destroy Santana testified he and four or five members of his team entered the house drawn. guns the officers found defendant at the
Upon searching opposite entered, end house where had in a bedroom with her Miranda bedridden ex-husband. Defendant her was read and waived rights them. She admitted sold and showed readily having methamphetamine of a officers location scale six that contained the baggies drug. officers also found several and owe” sheets in defendant’s house. “pay officers,
Thomaselli he testified when encountered the ordered him the ground, After was on the ground, he the officers asked gunpoint. house, him whether inside he defendant was told them she was. Thomaselli did not see them enter the house. on She
Defendant testified her own behalf. was in back bedroom with the shut, ex-husband, door for her caring when officers entered the house. She heard someone her calling name was disturbed because she did not know called, who it was. her Prior name she did not believe she hearing heard anyone about After she heard her say anything probation. called, name defendant the bedroom door and found one of the opened doorway, at her face. He told standing pointing gun *5 to her hands put up.
Defendant was charged for sale possession methamphetamine Code, (Health 11378). & Saf. She to and filed motion pleaded guilty § evidence, 1538.5, to Penal suppress pursuant Code section that claiming search, conducting the the officers had violated California’s knock-notice and the Fourth Amendment. The requirements examination hear- preliminary also for ing evidentiary served as the motion to and the hearing suppress revocation. probation court initially
The found there were no that would duty excuse officers’ to knock-notice The requirements. court reasoned that when the officers entered defendant’s had they insufficient to reason believe flushed or otherwise de- being or that anyone in the house himself or herself. stroyed, arming addition, armed, had no reason to believe defendant was to and they likely be could see she was not to flee. attempting determined, however, the officers’ shouting that
The court also Thomaselli, announcing sheriff’s themselves as identifying deputies, search, notified sufficiently to conduct a probation intent search, The court knock-notice thereby satisfying requirements. impending to seconds occurred “at least five seven observed that the officers’ [after Thomaselli], longer, certainly I shouted at think it was probably this of time The was “plenty Mr. Thomaselli’s court testimony.” opined to door find out once that notification made someone come on the on.” The court denied the motion to going suppress what heck is with knock-notice that the officers had ground substantially complied require- was sufficient to hold defendant ments. The court also found evidence her probation. for the and revoked methamphetamine charge answer information, to set Penal Defendant filed motion aside pursuant section on the the law enforcement officers ground Code the motion. violated knock-notice The trial court denied requirements. for sale. The Defendant then guilty possessing methamphetamine pleaded court on for a of three years trial placed probation period fined The court $550. condition that she serve 210 her days custody, later determined that defendant was for electronic surveillance eligible commitment order Defendant filed a 210-day timely revised accordingly. appeal.
On the Court of filed divided appeal, Appeal opinion reversing seized during concluded that the evidence judgment. majority and the was obtained in violation of California’s knock-notice requirements Amendment, Fourth and must therefore be We granted suppressed. for review and directed the Court of vacate petition People’s Appeal Banks United States v. reconsider its decision in light opinion (Banks), was decided 540 U.S. L.Ed.2d 124 S.Ct. which 521] it filed case. after its in this opinion reconsideration, again
On of the Court of concluded majority re- the search of defendant’s residence violated California’s knock-notice Amendment, during and the Fourth and that the evidence seized quirements We again tire search must be Justice Benke dissented. again suppressed. and will review reverse. granted
DISCUSSION rule, a to an arrest or As before house make entering a general themselves, search, identify pur officers must first explain perform 299, 302 Rosales (1968) 68 Cal.2d (People and demand admittance. v. pose, (Rosales) 1, invalidated 437 P.2d to state purpose Cal.Rptr. 489] [failure [66 496 301,
entry]; (1956) (Maddox) v. Maddox 46 Cal.2d 306 P.2d People 6] [294 where excused officer faith belief his compliance good [knock-notice 844, flee]; Code, 1531; would increase or would Pen. see peril §§ Annot., (2001) see Knock-and-Announce 85 A.L.R.5th generally Compliance The (Annotation).) (1) 1 this so-called knock-notice is rule to householder; (2) to innocent on protect privacy safeguard persons to (3) violent from unannounced premises; prevent confrontations arising entries; caused protect themselves injuries by 458, 464, King (1971) or fearful householder. v. 5 surprised (People Cal.3d 464, 1032].) fn. 3 487 P.2d The rule to entries through Cal.Rptr. applies [96 unlocked well (Rosales, doors as as “break-in” entries achieved force. by at supra, Cal.2d 303 & fn.
The no contend that the officers’ People longer conduct substantially rule, with not complied the knock-notice and we do consider that issue here. 1198, (See, v. e.g., (2000) 83 People Hoag 1208-1212 Cal.App.4th [100 Hull, J.); (dis. id. at Cal.Rptr.2d (maj. opn. 1219-1229 pp. opn. 556] Sims, J.).) The Acting P. also do not that the knock-notice rule People dispute (See 891, searches. v. Lilienthal 22 Cal.3d applies probation People 706]; Mays (1998) 587 P.2d v. People Cal.App.4th [150 969, 973, contend, however, 519].) fn. 4 do Cal.Rptr.2d exigent circumstances violation. justified knock-notice As previously noted, argue also that the inevitable doctrine alternatively discovery search, validated the an decline issue we to reach.
In the the trial court found no circum- (magistrate) exigent stances existed to excuse the officers’ with the knock-notice duty comply not as the officers did know that flushed or requirements, being otherwise or that in the house was himself or destroyed, anyone arming course, herself or to flee. it finding, Of this to the extent states a attempting conclusion, us. “In legal reviewing on on motion to binding ruling evidence, fact, we defer to the trial court’s whether suppress findings or if express findings those substantial evidence. implied, by supported We determine the relevant independently legal those principles apply evaluating the reasonableness of the search based on facts as principles found court.” Mays, trial (People Cal.App.4th rule We have held failure knock-notice Maddox, be excused when circumstances exist. For example, 46 Cal.2d an officer with reasonable cause to make a narcotics acting arrest kicked door after knocking hearing down defendant’s retreating the officer admittance failed demand footsteps. Although explain we seizure of narcotics found within. We observed that purpose, upheld delay full knock-notice compliance requirements
497 or secretion of evi- destruction entry thereby “permit officer’s [the] clearly in Maddox 305.) Because the officer (46 dence . . .” Cal.2d at p. . is no “there compelling enter and invade defendant’s privacy, the right 844 section the Code] need with compliance requirements for strict [Penal (Id. at p. guarantees.” basic constitutional protect this Maddox, test for exigent we framed the applicable and search and there cause to make an arrest is reasonable way: “[W]hen with a good are not inconsistent facts before his entry known [the officer] excused, his 844 is faith . . . that section belief compliance Code] [Penal does not justify formal of that section failure to with the requirements 46 at (Maddox, he Cal.2d supra, of the evidence obtains.” exclusion that test that strict 306-307.) More cases have so slightly rephrased recent pp. excused facts known knock-notice rule is “if compliance specific belief to the before his faith entry good officer his sufficient support arrest, or frustrate the permit will increase compliance peril, 826, 4 Cal.3d 833 (1971) v. Tribble (People destruction evidence.'1'’ [94 613, added; 589], (1973) 9 484 italics see v. Dumas People P.2d Cal.Rptr. 304, 1208]; Rosales, 871, Cal.2d supra, P.2d 68 Cal.3d 877 512 Cal.Rptr. [109 512, 305; 521 Cal.Rptr. at Flores p. People Cal.App.3d [180 50, Annot., 179-182, see A.L.R.5th at (Flores); supra, also pp. § 368] cases.) citing similar out-of-state clear, however, blanket rule exists
We have made that no also rule; instead, all cases from the knock-notice a specific narcotics exempting (Rosales, an or break in. must be made to unannounced showing justify 305; at Cal.2d 587-589 68 Cal.2d v. Gastelo People words, 706].) the mere fact that 432 P.2d In other on the does drug activity officers are aware contemporaneous premises se for a no-knock justification entry. provide per Nonetheless, we showing think the made sufficient specific Flores, 512, is close very circumstances here. Cal.App.3d There, drug contemporaneous on officers aware of recent or point. and obtained a search and arrest warrant. Before sales on premises outside, Flores the officers confronted defendant entering premises, “ him, officer with a search yelled through arrested ‘Police ” (Id. Knowing warrant. Demand entry.’ inside, knew were could be other destroyed persons they premises quickly later, other items. entered a seconds and various seizing drugs few (Id. 518-519.) at pp. without acknowledged giving
The Flores court the officers entered (See entry. or refuse peaceable reasonable opportunity permit *8 498 539, (1973) 34 Superior 107].)
Brown v. Court 543 Cal.App.3d Cal.Rptr. [110 But the court found sufficient excuse strict compli- ance: facts known to included the specific police immedi- “[T]he [the officer] heroin sale in ately preceding large actively engaged by [a codefendant] whom he knew was inside same house where heroin sales of increasing amounts were in four of six ... and at completed past days yelling outside the door he could just front which reasonably [defendant] consider as warned those of the having inside officers’ and pur- factors, (Flores, 521.) 128 two pose.” supra, p.at These Cal.App.3d ongoing sales a loud announcement of the officers’ are drug identity purpose, in this case. similarly present Banks,
We
find
also
for our
in
strong
holding
Unlike the the officers in Banks actually knocked announced their before in. Yet the did formally breaking Banks court not treat that fact as “there no legally significant because reason to treat a post-knock exigency differently from the no-knock “the because counterpart” same should criteria” whether the officers determining legiti- apply after enter or whether a knock and mately knocking announcement 40, (Banks, first 540 U.S. at required place. supra, pp. The Banks court test for “no-knock” repeated previous allowing “ namely, that the must a reasonable
entry, ‘have knock- suspicion circumstances, ing announcing their under would presence, particular futile, be or . . . would inhibit the effective dangerous investigation ” (Banks, crime allowing destruction evidence.’ by, example, 385, U.S. at Richards v. Wisconsin 520 U.S. quoting that, Richards, S.Ct. 1416].) L.Ed.2d Banks noted under when the of exigency a reasonable suspicion circumstances support “if (Banks, knocking. in” without they may go straight arrive at the 540 U.S. at p. involved, whenever to the exigency present With respect without response 15 or 20 seconds waiting that after agreed Banks *9 knock, drug premises that reasonably suspect the officers could U.S. (Banks, supra, broke in. forcibly unless they would be flushed away because exigent circumstances are that “when at The court observed p. reach, it is beyond his drugs near the of putting be point pusher entrance, that when governs to the not travel time imminent disposal, (Id. at enter . . . .” may reasonably no noted, case found the Court of present As majority Appeal the knock- with to excuse the officers from complying circumstances exigent officers that the magistrate provided with the majority agreed notice rule. absent destroyed fear that evidence could be facts to their justify insufficient declined to follow the court immediate In this entry. regard, expressly Flores, 521) at (see contempo supra, Flores rationale 128 Cal.App.3d at one the officers’ yelling raneous sales on premises, coupled destruction immediate justified prevent outside suspect Banks, 31, the Court of majority for 540 U.S. Appeal of evidence. As actually which the officers that case as one in distinguish attempted that the same Banks’s statement entering, seemingly ignoring knocked before if the a “no-knock” situation it would announcing standards was apply (Banks, U.S. existed. “reasonable of exigency” requisite suspicion 36-37.) at pp. Benke in this case Justice Acting Presiding
The dissenting opinion ongoing based on defendant’s circumstances existed argued exigent loud the officers’ transactions on or near drug premises, contemporaneous conducting proba- themselves as officers identifying Thomaselli shouting search, thereby defendant was amply and their reasonable belief that tion observed, the Benke dissent alerted to their As “[n]ot purpose. have been from occupants would knocking waiting response only staging plan in this case the officers’ drugs, futile and risk destruction and entering diverted from appellant their attention disarray, necessarily Moreover, . . . as with events outside. her house to the chaos of dealing us, are not at to substitute liberty reminds we United States Court Supreme but rather we should have responded, our on how views at the through eyes the reasonableness of their actions to view obligated the chaotic Under exigency. are confronted with the alleged time they here, course of to choose a reasonable for Santana circumstances it was of the officers. safety action that preserved officers, “The would have majority these in the midst of the commotion them, drawn, around drug dealing stand at a guns partially opened door sliding (but could not see glass they through which presumably through they inside). could be seen those There would be to knock required seconds, and count the somehow or as a reflecting individually group upon events to determine how preceding long should wait. This is not realistic. Nor it a result law.” by existing contemplated
We with the Court of agree dissent excused with the knock-notice rule compliance in this case. The officers assume, based reasonably on their of defendant’s knowledge probation ary status allowing warrantless searches ongoing apparent sales on the contemporaneous drug that some were still premises, inside which could be once defendant became readily destroyed aware of the officers’ and intent. The officers could also identity reasonably that the suspect commotion outside occurring immediately defendant’s open *10 the officers’ loud identification of including themselves as members of search, the sheriff’s to execute a department seeking and the sound probation of a barking inside the dog together would alert defendant premises, or conceal destroy any drugs on the unless the officers entered premises found, without further As the trial court delay. loud confrontation with Thomaselli was sufficient to defendant on notice of the officers’ put identity and purpose. stress, course,
We that officers are not police to contrive to permitted create their own loud exigency by making noises before or even entering, their and loudly announcing to serve as a purpose pretext without But entering knocking. in the record the officers nothing suggests or contrived the prearranged confrontation with Thomaselli. Banks,
Defendant observes
that
540 U.S. at
officers
page
waited 15 to 20 seconds before
whereas here the
entering,
officers entered
after a mere five to seven seconds after
and
announcing
identity
purpose
First,
to Thomaselli.
the trial court found that
more time had
“probably”
Second,
case,
than
five or seven
elapsed
merely
seconds.
in the
Banks,
officers entered
an unlocked
through
door. But in
the officers
determined
to use
ram to break down the
battering
defendant’s door and
needed more time to
obviously
for and execute an
in such
prepare
entry
Banks,
event,
manner. In
words of the
court in
high
U.S.
“when circumstances are
because a
be near
page
exigent
may
pusher
reach,
point
it is imminent
not travel
putting
beyond
disposal,
entrance,
time to the
that
when the
governs
enter.”
police may reasonably
be allowed
should not
officers
argues
police
Defendant also
have
because knock merely
of an actual
dispense
even in drug
agree
We
identity
purpose.
announced their
previously
the knock-notice
cases,
must complete
a search
executing
ordinarily
creating
as itself
announcement
on their
may
rely
procedure
ante, however, no evidence
As noted
entry.
immediate
justifying
exigency
to use their confrontation
contrived
the officers
in this case to suggest
exists
rule.
with the knock-notice
as an excuse to avoid compliance
with Thomaselli
case,
without
that,
the officers’
facts in this
under the
We conclude
circumstances.
by exigent
knocking
justified
Court of
is reversed.
judgment
J.,
Kennard, J.,
Baxter,
J.,
concurred.
C.
George,
circum
concludes
MORENO, J., Dissenting.
The majority
case from complying
in the present
stances excused the sheriff’s deputies
1531, that
Code section
codified in Penal
with the constitutional requirement,
to execute
not enter a residence
a law enforcement officer may
authority
notice of his
(or
search) unless “after
warrant
conduct a probation
is a
this
{Ibid.)1 disagree. Although
admittance.”
I
he is refused
view,
as the sheriff s deputies
the commotion that occurred
close
in my
to the presence
have alerted
may
residence
approached
the need to
have obviated
and their
and thus
purpose,
did not excuse the officers
but it
announce the officers’ authority
purpose,
*11
admit
to permit
affording
opportunity
“refuse[]
(§
tance.”
489],
1, 437 P.2d
v. Rosales
we that the recognized parallel federal and in both the fundamental ‘Decisions rights. “is designed protect courts, is requirement have as did the recognized, English state courts individual safeguard which the essence of the substantive protections rights than concern for statute reflects more The liberty.’ [Citation.] [][] resistance to unexplained violent those accused of crime. It serves preclude be who also may of innocent security persons and to entries protect of the ‘We are mindful duly an arrest is made. on where premises present and order law achieving upon must reliance society place lawby But insistence on observance criminal law. enforcing agencies Code, otherwise noted. the Penal unless statutory references are to All further to make an may open the door of house peace officer break Section 844 states that a for which admittance explained purpose having demanded admittance arrest “after desired.” is,
officers of traditional
fair
from the
procedural requirements
long
point
view, best calculated to contribute to that end. However much in a particular
case insistence
such rules
upon
as
that inures to the
appear
technicality
benefit of a
guilty
of the criminal law
person,
history
that tolerance
proves
of short-cut
in
methods
law enforcement
its
effectiveness.
impairs
enduring
The
notice of
prior
authority
before
forcing entry
into a home is
rooted in our
heritage
should not be
deeply
given grudging
householder,
bad,
. .
.
application.
Every
and the
and the
good
guilty
innocent,
is entitled to the
to secure the
protection designed
common interest
”
(Rosales,
unlawful
against
invasion of the house.’
In the Detective Alberto Santana defendant’s approached residence with his team of officers to conduct knowing probation defendant was actively from the The engaged selling drugs residence. officers were with the wearing vests word “Sheriffs” on bulletproof printed them, and baseball that said caps “Sheriff’s Narcotics.” The focus of the search was the attached which garage, defendant had converted into a bedroom and had a which door on the sliding glass side.
Rather than the front door of the approach officers went through gate door of the approach sliding glass converted but garage, comer, as turned the detective came “face-to-face” with a man detective, drawn, “clenching something his hand.” The with his said gun a loud voice . . . yelling,” “[i]n “Sheriff’s Probation Department. [a]lmost search. Get on the He ground.” believed that the other members of team his man, also had their drawn and guns the same later yelled thing. identified Thomaselli, as Michael had been the fence and was repairing holding only screws in his hand.
A dog began barking inside the converted garage. Believing operation had been because “compromise[d]” “anyone residence or in the themselves, bedroom would have heard us” and “could arm possibly run,” evidence or possibly destroy Detective Santana possibly organized and, seconds, team of officers within five to seven entered the sliding glass entered, *12 which was without As open, knocking. officers yelled “Sheriff’s search.” The sole of the converted Department, probation occupant was the The garage barking officers entered the residence and dog. proper room, room, crossed the dining and a before living hallway finding ex-husband, bedridden, and defendant her who is in his bedroom at the rear of the house. arrived,
Defendant testified that before the she had into her just gone ex-husband’s bedroom and shut the door. She heard later someone her calling a gun a sheriff’s deputy pointing door to find and the bedroom
name opened her to raise her hands. ordering at her and evidence, erroneously motion to suppress court denied the
The superior the knock-notice with had substantially complied that the officers concluding when they and their purpose announcing by but the converted garage, the door of the worker outside encountered had excused compliance no circumstances further found that exigent court . . . known exigencies. are no the knock-notice requirement: with “[T]here flushed, that don’t know being don’t know if there are drugs They to believe she was didn’t reason armed. . . . have being They anybody have the surrounded. They place see she wasn’t fleeing. armed. could They There is no exigency.” reversed, did that the officers correctly recognizing
The Court of Appeal concluding, with the knock-notice substantially requirement, court, circumstances that there were no exigent as did the superior excused such compliance. with the that the officers substantially complied
The no longer argue the Court court and and I agree superior knock-notice requirement, excusing compliance that there were no The reaches the conclusion opposite the knock-notice majority requirement. residence without the officers to enter defendant’s it was proper admit- “refused being authority “notice of giving purpose” [their] a single centers tance” section 1531. My disagreement upon as required summariz- sentence in the which majority opinion, appears paragraph reasoning. ing majority’s reasonably “The officers its as follows: majority reasoning summarizes assume, status defendant’s knowledge probationary
could based on their searches and the ongoing contemporaneous warrantless allowing apparent which were still inside on the that some drug sales premises, became aware of the officers’ be once defendant readily destroyed reasonably suspect and intent. The officers could also identity door, including defendant’s commotion outside occurring immediately of the sheriff’s of themselves as members the officers’ loud identification search, a barking and the sound of to execute a seeking probation department or conceal to destroy would alert together inside dog premises, delay. without further the officers entered unless any drugs premises found, was sufficient with Thomaselli trial court the loud confrontation As the (Maj. identity opn., notice of the officers’ purpose.” defendant on put ante, at p.
I with the that “the agree loud confrontation with Thomaselli was majority sufficient to defendant on notice of the officers’ and put identity purpose.” ante, 500.) (Maj. at But section 1531 than opn., p. more requires just notification of the officer’s and it further presence purpose, requires have “refused admittance.” loud confrontation with occupants Thomaselli, therefore, have made it might for the officers to unnecessary announce their and but it did not authority officers to enter purpose permit the residence until either been or refused admittance. granted Such a course, refusal to admit the officers be if the may do implied, occupants (United within a reasonable time a demand for respond following entry. States v. Banks 31, 521]; 540 U.S. L.Ed.2d 124 S.Ct. [157 846].) Gonzalez Cal.App.3d assume,
I agree also with the majority officers could reasonably “[t]he based on their of defendant’s knowledge status war- probationary allowing rantless searches and the apparent ongoing sales contemporaneous drug on the that some premises, drugs still inside which be readily destroyed once defendant became aware of the officers’ identity ante, 500.) intent.” at (Maj. But as the opn., p. majority “no acknowledges, rule blanket exists all narcotics cases from the exempting knock-notice words, rule .... In other the mere fact the officers are aware of on the contemporaneous drug activity does not se premises provide per ante, for a no-knock justification at There entry.” (Maj. opn., always ais risk that the aof residence that contains occupants attempt those soon destroy drugs as as officer a warrant executing conducting or probation announces his her admittance. presence demands Nevertheless, the officer cannot enter until the have either lawfully occupants or refused admittance or have granted been a reasonable given opportunity do so. therefore,
My disagreement with majority, hinges upon following statement: “The officers could also reasonably that the commotion suspect outside occurring immediately defendant’s the officers’ including loud identification of themselves as members of the sheriff’s department search, to execute a and the seeking sound of a inside probation barking dog would alert premises, together or conceal destroy any drugs on the the officers entered unless without further premises delay.” (Maj. opn., ante, above, I with half disagree of this statement. As noted I agree that the officers could conclude that the reasonably commotion outside the officers, door would alert the to the occupants presence purpose but I that the officers had a reasonable basis for strongly disagree concluding that such notice of the of the officers lead the would “to or conceal unless the destroy any drugs premises (Ibid.) entered without further delay.”
505 reason to conclude had no that the officers court found The superior or arming were fleeing or that occupants being destroyed were drugs flushed, don’t they being there are drugs don’t know if “They themselves: reason didn’t have They armed. . . . is being know that anybody have They wasn’t fleeing. could see she was armed. They believe she such by we are bound acknowledges, majority As the surrounded.” place ante, (Maj. opn., evidence. that are substantial of fact findings supported actually believing basis for 496.) Because the officers had no at p. mere rely possibility is forced to majority upon were being destroyed, “In the absence is not enough. Such speculation that this could happen. search apart that set the present and articulable reasons some specific searches, were trying the mere possibility occupants other narcotics If 1531. ... with section the search does not excuse compliance frustrate were not or destruction of evidence required, indications of arming specific consume the notice would entirely exception exigent-circumstances Gonzalez, supra, (People Cal.App.3d refusal v. requirement.” Gonzalez, to serve a search ruled that an entry the Court knocked on the door when officers in clothes warrant was unlawful plain asked, voice a.m. A woman’s the defendant’s residence before 1:00 shortly “ “ ” answered, ‘Riverbank Police Department. ‘Who is it?’ The officer ” seconds, and, after five heard further nothing Search warrant.’ The officer her to door, knocking the defendant in the shoulder kicked in the hitting Gonzalez, 1047.) The v. ground. (People Cal.App.3d answered, himself, identified she testified that when officer “ ” a man in a hole in the seeing a minute’ ‘just through peered it flew about to unlock the door when open. She was camouflage pants. CIbid.) unlawful, “the recognized
The Court of in that the ruling entry Appeal, of the door is in this area”: “On inside that are at work conflicting policies society violent increasingly two she lives in an daughters; lone woman with her to a band at 12:50 a.m. whether to throw door open and she must decide front but are on her standing porch armed men who claim to be who police side of the door stand On the other street clothes. scruffy [f] [Citation.] know authority purpose—they officers who have no doubts about killers, thugs despite and that are not common they are not or they rapists a drug have they late hour of their arrival. believe They their dress and the inside, the door who behind dealer cornered know there is someone else about nothing know They let them in but who has not done so. house, that is that almost anything but know what is happening to result to them injury behind the closed door is likely happening both sides of the door The interests at stake on destruction of evidence. [][] and refusal of of the notice history are and as quite important; makes clear the interests reconciled.” easily (People Gonzalez, 1043, 1049.) Cal.App.3d it
Although that the certainly possible of the residence in the there, become aware that the having might attempt *15 evidence, to or escape destroy arises as soon as the possibility always announce their police demand as are to presence entry, do. required 10, In v. Gastelo People 67 Cal.2d 588 432 P.2d Cal.Rptr. [63 706], Chief Justice for a Traynor writing unanimous court the rejected Attorney argument General’s that the need not police section comply 1531 when a search warrant for executing narcotics because “narcotics violators are on the alert normally to the destroy easily evidence disposable at the quickly first of an officer’s sign We stated: “No such basis presence.” cases, and, exists for the nullifying statute in all narcotics by logical extension, in all other cases involving evidence. The statute easily disposable does not contain the seeds of such self-destruction.” v. far-reaching (People Gastelo, 588.) 67 Cal.2d at supra,
Even when the have reason to believe that police good the to be premises narcotics, searched contain and that the are aware that the occupants police are the still are to present, police required give occupants opportunity to their demand for respond unless the have entry, reason to believe police that the occupants actually or evidence. attempting escape destroy This subtle, distinction bemay but it is In the there is important. present that, to indicate even if nothing had become aware occupants presence police, they evidence. attempting escape destroy there were Accordingly, no that excused compliance with the that the an give occupants opportunity with the demand for entrance.
The relies majority the Court principally decision in upon Appeal’s 368], v. Flores 512 Cal.App.3d which the ante, majority is close on says “very point.” (Maj. opn., but, circumstances in Flores were similar to in those case as present below, there explained is a difference that significant Flores distinguishes from the case. I also present with the in disagree reasoning Flores. The that, view, in Flores contains a flaw reasoning has led my astray majority case. Flores, sheriff’s obtained a search warrant for the deputies defendant’s
residence after a informant amade series of controlled paid purchases outside, heroin there. theAs officers waited the informant heroin a purchased final time from the defendant and his The defendant then accomplice. escorted the informant back to the taxicab in which she had arrived while his taxicab, who was a house. the driver remained in the When
accomplice the defendant “ran were present, revealed deputy, police sheriff’s stop at the defendant toward the Another officer yelled back house.” defendant, then, went as a fellow officer held him under arrest and placed with the door of the which was open to the front immediately “ Demand with a search warrant. door He ‘Police officer ajar. screen yelled, ” Flores, (People v. or two seconds later. entered one entry,’ 512, 518-519.) Cal.App.3d lawful, in Flores held that despite
The Court of failure after response announcing presence officer’s to wait section more reasoning compliance 1531] purpose, “[s]trict [with faith excused where the believe readily good (People known to enter is to the already [citations].” Flores, This echoed an identical statement Cal.App.3d *16 539, in Brown v. Court Superior 34 543 Cal.App.3d Cal.Rptr. [110 in both Flores and Brown cited in support of this The Courts of Appeal 107]. Rosales, 299, 302, supra, v. our in Cal.2d but People decision 68 proposition Rosales. in nothing we said of the kind Rosales, because the we invalidated arrest and search resulting entered the knock-notice
officers the residence without complying of the residence section 844. The went to defendant’s to officers requirement residence, arrest him for a violation. they As the they approached parole looked the door and the defendant in the room. through living screen saw defendant, entered the They telling girl they and arrested passed officers, room but to announce their living that were they police faffing the We held the fact that the officers told girl demand that purpose entry. that were officers was to with section 844 they not sufficient police admittance: because did not also and demand explain purpose with section “Such identification alone could constitute substantial compliance the clear 844 if the circumstances made officers’ only surrounding purpose that a for admittance would be futile. to the or showed demand occupants the or even There is in record to that the nothing the show occupants the knew that the to arrest defendant or understood officers’ was girl purpose Rosales, (People supra, that were v. 68 Cal.2d demanding admittance.” 299, 302, Rosales did in that the circum omitted.) fn. We not suggest that the of a are aware the stance residence occupants the demand excuses that the police purpose police that demand before admittance respond permit unlawful, Rosales To the we held in was entering. contrary, like that an officer section recognizing section “requires admittance, he his before explain demanding merely identify purpose Rosales, v. himself as an officer.” 68 Cal.2d at (People Flores in be reasoning I find the flawed in this I Although respect, believe the have correct result that case. Court reached the in Appeal may the officers in Flores Unlike the have had reason to believe present immediate that an residence entry into the to forestall necessary above, Flores in imminent destruction of evidence. As noted the defendant and, had left his in house leaving accomplice learning upon Flores, that the were “ran back toward the house.” (People police present, 512, 518.) The have officer con- Cal.App.3d reasonably cluded that the defendant’s back to his residence was to running evidence or destroy Because defendant’s escape apprehension. accomplice house, remained in the the officer had reason believe that it was necessary to enter the residence immediately defendant’s prevent accomplice from what the defendant had been just doing. accomplishing prevented Flores of the circumstance in that the ran when importance he learned is demonstrated decision by comparing police in Flores v. Neer decision in with the Cal.App.3d 555], Police home Neer’s to execute search approached warrant and working encountered a man the front detained the yard. They “ (who Neer), man officers later learned was ‘We’re shouting: ” (Id. move have a don’t ... we One department, warrant.’ officers then went to the front which was screen *17 inside, door Seeing closed. the officer identified himself as people police officer, warrant, said had a and he entered “because he immediately believed the had heard both and would occupants announcements feared (Id. at flee, 995.). contraband or arm themselves.” destroy in Neer held that the The Court of found in the ensuing narcotics search should have been ex- exigent because no circumstances suppressed Neer concluded cused the violation court in officer’s of section 1531. The an reasonable “nothing exigent knew belief permitted objectively [the officer] Neer, 991, 995.) circumstances existed.” (People Cal.App.3d The court added: “There was no the .... suspicious activity by occupants in the to with Neer’s detention front cannot suffice excuse yard compliance (Id. 996-997.) the statute. Section 1531 was violated.” at pp. and Neer is Flores
The difference between the decisions in the in Flores the running when he learned were began police present, Neer. while no facts there meaningful similar in this is no appear respect, Neer, Neer difference in the between and the case. As officers present and, case detained a outside the entrance to the residence in present suspect so, and As the to their purpose. have alerted doing may occupants presence Neer, and identified themselves immediately the officers in the case present an the giving occupants their and entered the residence without them- might feared the arm occupants to because they opportunity respond Neer, evidence, case selves, or the officers in present run. As destroy section 1531. violated to those in Neer differ
The facts in the case are identical nearly present the officers Flores from those in in an person important respect. did not resist encountered outside defendant’s residence in the case present reason to enter the residence or otherwise officers give attempt encounter with that destruction of evidence was imminent. The believe most, at to alert only outside the served occupants person and intended conduct defendant’s residence that present police the need the officers to announce search. This have obviated but it not excuse the from complying did officers purpose, the further of section 1531 that demand admittance requirement to that demand. permit opportunity respond The decisions in which this court has found have all differed excused with the knock-notice compliance requirement v. Maddox (1956) 46 from the case. In Cal.2d markedly 6], for about P.2d officers had watched the defendant’s residence a month and had known narcotics users visit there. The officers arrested seen after he man soon he left defendant’s who told residence while inside the residence. went defendant’s just injected They heroin “ ” said, minute,’ door A male ‘Wait a the officer knocked. voice heard and rushed retreating “the sound of He kicked door footsteps. to the kitchen he saw in his hand running where defendant with spoon toward bedroom.” {Id. in Maddox that the arrest was
This court
the defendant’s
rejected
argument
did
illegal because the officer
knock-notice
“When,
in this
he has reasonable
stating:
grounds
section
as
retreating
committed and hears
footsteps,
believe a
felony
being
*18
the
would
if
conclusion that
would be increased or that
felon
escape
his peril
he
is not unreasonable.”
demanded entrance
his
explained
purpose,
301, 306,
Maddox,
v.
46 Cal.2d
added.)
italics
(People
613,
589],
v.
484 P.2d
People
Tribble
(1971)
Cal.Rptr.
In
whom said a knife. the being he had After victim to the reported the license number and of the vehicle men police the were description driving. vehicle was to the defendant. Officer went registered Moen to the the defendant’s saw vehicle in the and found apartment, driveway, parked the on victim’s album of the vehicle. men in Two a photograph top had been Volkswagen that near the defendant’s vehicle “started parked to (Id. back out and drove forward then at Other rapidly stopped.” p. officers arrested the two men and recovered a Officer Moen went to the gun. defendant’s “where heard he what sounded like apartment running footsteps.” (Ibid.) The officer forced the door the and arrested defendant.
This court concluded that the exigent circumstances excused officer’s failure to with the knock-notice of 844: “In section the involved, violent present character crimes victim’s report knife, that her had a a assailants recovery gun the Volkswagen, and the sound running footsteps within Officer Moen’s stated fully justified belief that T felt there was bodily myself to possibility injury my if partner we hesitated.’ 844 section was therefore excused.” Compliance Tribble, 4 833, (People at added.) Cal.3d italics v. Dumas 871, 304, People Cal.3d 512 P.2d Cal.Rptr. [109 1208], with section 1531 was where compliance excused serving search warrant had been by told informant that the defendant possessed several “and firearms that he invariably answered door with loaded gun v. Carrillo his hand.” In 64 Cal.2d 377], 412 P.2d an officer who had defendant’s residence to gone offense, arrest him for on a violating narcotics parole entered through screen door without he “saw with section when complying moving time quickly through the kitchen at about the same that another officer knocked front (Italics added.) door.”
No similar facts appear present case. the officers had Although reason to believe that defendant possessed narcotics have become search, aware that the officers were did intended observe within the or hear the sound of anyone moving quickly or have information that running were armed. The footsteps, occupants found, court superior so we bound its of fact as it finding ante, substantial evidence. Even if supported by (Maj. opn., commotion that occurred outside entrance to defendant’s residence had obviated the need for the knock on door and announce their search, intention to enter and conduct a still wait a obligated short admit time to them or to refuse them permit peacefully, *19 Banks, United States v.
admittance, (See could enter residence. before they warrant “called out ‘police U.S. a search executing [officers door to be heard by hard enough search warrant’ and rapped door,” 20 seconds before entering].) then waited 15 to back J., Blease, J.,* concurred. Werdegar, Chin, J., was denied 2006. rehearing February petition
Appellant’s J., Moreno, J., therein. Werdegar, opinion did not participate be granted. that the should petition * District, assigned Court the Chief Appeal, Appellate Associate Justice of the Third VI, pursuant
Justice article section 6 of California Constitution.