People v. TrujilloPeople v. Trujillo
AGLIANO, P.J. —
1. Introduction
The People appeal from an order dismissing the prosecution of defendant Elaine Dolores Trujillo following the superior court‘s order granting her
2. Scope of review
(1a) We note the scope of review of suppression motion rulings has changed due to a 1986 amendment to
An additional consequence of this amendment is that, on further appellate review of a suppression motion, the appellate courts must give the magistrate‘s express and implicit factual determinations the same deferеnce formerly given those by the superior court. (Ramsey, supra, 203 Cal. App.3d 671, 679; cf. Anderson, supra, 206 Cal. App.3d 533, 545; People v. Drews (1989) 208 Cal. App.3d 1317, 1328 [256 Cal. Rptr. 846]; People v. Gonzalez (1989) 211 Cal. App.3d 1043, 1050 [259 Cal. Rptr. 846].) The former rule of deference to the superior court‘s factual determinations remains applicable only when no suppression motion was made at the preliminary hearing or when new evidence is allowed before the superior court. (Compare, e.g., People v. Brown (1989) 210 Cal. App.3d 849, 854-855 [260 Cal. Rptr. 293], with People v. Perez (1989) 211 Cal. App.3d 1492, 1494 [260 Cal. Rptr. 172].)
Defendant first moved to suppress evidence at the preliminary hearing; her motion was denied. She then moved to suppress evidence at a special hearing in the superior court. The superior court correctly reсognized it was bound to accept the facts implicitly found credible by the magistrate, as we must on appeal. “Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law.” (Long, supra, 189 Cal. App.3d 77, 82, and cases there cited.)
3. Facts
On May 22, 1987, at about 7:45 a.m., San Josе Police Officer Mark Muldrow, with eight other officers, executed a search warrant at defendant‘s upstairs apartment. An officer had watched the apartment since 6:30 a.m. that morning and had seen a light go on for a short time before 7 a.m. He believed he had so informed Muldrow prior to the entry. All were wearing uniforms or yellow police raid jackets. Six officers approached the front door. Muldrow knocked four times on the door and announced, “San Jose police, we have a search warrant.” After the first series of knocks, he heard “mоvement” inside the apartment but could not describe it or attach any significance to it. Since there was no response, Muldrow knocked again and waited approximately 18 seconds from the first knocks before kicking the door in. Several officers had their guns drawn. Inside the aрartment were located cocaine, methamphetamine, and marijuana in amounts sufficient for sale, stolen property, and defendant in bed with a male child.
(3) As recognized in People v. Macioce (1987) 197 Cal. App.3d 262 [242 Cal. Rptr. 771], “The purposes and poliсies supporting the `knock-notice’ rules are fourfold: (1) the protection of the privacy of the individual in his home; (2) the protection of innocent persons present on the premises; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice; and (4) the protection of police who might be injured by a startled and fearful householder.” (Id. at p. 271.)
The People cite federal cases to support their contention that, under the circumstances, the 18-second delay between knocking and entering complied with the knock-notice requirements. (See generally Annot. (1974) 21 A.L.R.Fed. 820.) However, two of them seem to involve findings of excused noncompliance. (Rodriguez v. Jones (5th Cir.1973) 473 F.2d 599, 607, cert. den. 412 U.S. 953 [37 L.Ed.2d 1007, 93 S.Ct. 3023]; United States v. Wysong (9th Cir.1976) 528 F.2d 345, 348.) A third does posit, under the federal knock-notice statute,5 “Genеrally, a wait of 20 seconds is deemed adequate before the officers may force entry.” (United States v. DeLutis (1st Cir.1983) 722 F.2d 902, 909.)
It would simplify analysis to adopt a similar bright-line rule. However, such a mathematical formula would trivialize the policies behind the knock-notice rules. (4) As observed in a different context, “thе rule ... is not mechanical....” (Hart v. Superior Court (1971) 21 Cal. App.3d 496, 501 [98 Cal. Rptr. 565].) A California case relied on by the People indicates that the amount of delay is but one of a number of relevant factors in ascertaining knock-notice compliance.
Compliance with knock-notice requirements depends on a variety of circumstances. Therefore, we need not analyze whether thе magistrate or the superior court properly interpreted Jeter v. Superior Court (1983) 138 Cal. App.3d 934 [188 Cal. Rptr. 351], or other cases arising under
It is impossible to calculate whether an 18-second delay was sufficient to allow the occupants to respond to a knock at the door without knowing the size and layout of the apartment. Such evidence was not before the magistrate when the suppression motion was made at the preliminary hearing. (5a) However, assuming an average-sized apartment, we question whether such a brief delay is sufficient to allow an occupant to answer a knock at the door unless the occupant is otherwise uninvolved and waiting for the knock. The generic “movement” heard by the officer, without more, is no manifestation of a refusal of entry. As the magistrate said, the sound “could be a
5. Substantial compliance
(6) The Peоple go on to assert there was at least substantial compliance with knock-notice requirements. In Tacy, supra, 195 Cal. App.3d 1402, we recognized a number of both state and federal authorities adopting a doctrine of substantial compliance with knock-notice requirements. (Id. at pp. 1414-1421.) “Substantial compliance means `“actual complianсe in respect to the substance essential to every reasonable objective of the statute,” as distinguished from “mere technical imperfections of form.“‘” (People v. Jacobs (1987) 43 Cal.3d 472, 483 [233 Cal. Rptr. 323, 729 P.2d 757]; italics in original.) The essential inquiry is whether under the circumstances the policies underlying the knock-notice requirements were served. (Ibid.)
One of the policies implemented by requiring the police to knock and announce themselves and their purpose is to prevent injury to the police or citizens who would react aggressively to a surprise, unannounced entry. As we observеd in Tacy, supra, 195 Cal. App.3d 1402, “`To the extent that the rule prevents violence, its utility is exhausted when the actual announcement is made. The concern here is that an unannounced intrusion will provoke citizens to exercise their general right to repel intruders by force.... [I]f an occupant is predisposed to resist an entry by police, a substantial delay between announcement and entry could only give him time to prepare.‘” (Id. at p. 1420, quoting United States v. Bustamante-Gamez (9th Cir.1973) 488 F.2d 4, 11.)
The other policy served by the requirement is to protect the privacy of occupants of residences. In Tacy, supra, 195 Cal. App.3d 1402, we further observed, “`The simple fаct is that a homeowner has no right to prevent officers armed with a warrant or proper grounds to make a warrantless entry 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.‘” (Id. at p. 1421, again quoting Bustamante-Gamez, supra, 488 F.2d 4, 11, italiсs omitted.) (7) The privacy interest at stake is thus “based on the reduced expectation of privacy that arises from a magistrate‘s determination of probable cause to believe that evidence of criminal activity will be found in the dwelling.” (Gonzalez, supra, 211 Cal. App.3d 1043, 1048.)
(5b) Defendant contends her privaсy was invaded because the entry did not give her time to get out of bed. The record does not support her
6. Disposition
The ordеrs dismissing the case and suppressing evidence are reversed.
Premo, J., and Elia, J., concurred.
A petition for a rehearing was denied March 1, 1990, and respondent‘s petition for review by the Supreme Court was denied April 26, 1990. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.