People v. Murphy ( 2005 )

MORENO, J., Dissenting.

The majority concludes that exigent circumstances excused the sheriff’s deputies in the present case from complying with the constitutional requirement, codified in Penal Code section 1531, that a law enforcement officer may not enter a residence to execute a search warrant (or conduct a probation search) unless “after notice of his authority and purpose he is refused admittance.” {Ibid.)¹ I disagree. Although this is a close case, in my view, the commotion that occurred as the sheriff s deputies approached the residence may have alerted the occupants to the presence of the police and their purpose, and thus may have obviated the need to announce the officers’ authority and purpose, but it did not excuse the officers from affording the occupants an opportunity to permit or “refuse[] admittance.” (§ 1531.)

In People v. Rosales (1968) 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489], we recognized that the parallel “knock-notice” requirement in section 844² “is designed to protect fundamental rights. ‘Decisions in both the federal and state courts have recognized, as did the English courts, that the requirement is of the essence of the substantive protections which safeguard individual liberty.’ [Citation.] [][] The statute reflects more than concern for the rights of those accused of crime. It serves to preclude violent resistance to unexplained entries and to protect the security of innocent persons who may also be present on premises where an arrest is made. ‘We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. . . . Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.’ ” (Rosales, supra, 68 Cal.2d at pp. 304-305, fn. omitted.)

In the present case, Detective Alberto Santana approached defendant’s residence with his team of officers to conduct a probation search knowing that defendant was actively engaged in selling drugs from the residence. The officers were wearing bulletproof vests with the word “Sheriffs” printed on them, and baseball caps that said “Sheriff’s Narcotics.” The focus of the search was the attached garage, which defendant had converted into a bedroom and which had a sliding glass door on the side.

Rather than approach the front door of the residence, the officers went through a gate to approach the sliding glass door of the converted garage, but as they turned the comer, the detective came “face-to-face” with a man “clenching something in his hand.” The detective, with his gun drawn, said “[i]n a loud voice . . . [a]lmost yelling,” “Sheriff’s Department. Probation search. Get on the ground.” He believed that the other members of his team also had their guns drawn and yelled the same thing. The man, later identified as Michael Thomaselli, had been repairing the fence and was holding only screws in his hand.

A dog began barking inside the converted garage. Believing their operation had been “compromise[d]” because “anyone in the residence or in the bedroom would have heard us” and “could possibly arm themselves, could possibly destroy evidence or possibly run,” Detective Santana organized his team of officers and, within five to seven seconds, entered the sliding glass door, which was open, without knocking. As they entered, the officers yelled “Sheriff’s Department, probation search.” The sole occupant of the converted garage was the barking dog. The officers entered the residence proper and crossed the dining room, the living room, and a hallway before finding defendant and her ex-husband, who is bedridden, in his bedroom at the rear of the house.

Defendant testified that just before the police arrived, she had gone into her ex-husband’s bedroom and shut the door. She later heard someone calling her name and opened the bedroom door to find a sheriff’s deputy pointing a gun at her and ordering her to raise her hands.

The superior court denied the motion to suppress evidence, erroneously concluding that the officers had substantially complied with the knock-notice requirement by announcing their presence and their purpose when they encountered the worker outside the door of the converted garage, but the court further found that no exigent circumstances had excused compliance with the knock-notice requirement: “[T]here are no known exigencies. . . . They don’t know if there are drugs being flushed, they don’t know that anybody is being armed. . . . They didn’t have any reason to believe she was armed. They could see she wasn’t fleeing. They have the place surrounded. There is no exigency.”

The Court of Appeal reversed, correctly recognizing that the officers did not substantially comply with the knock-notice requirement, and concluding, as did the superior court, that there were no exigent circumstances that excused such compliance.

The People no longer argue that the officers substantially complied with the knock-notice requirement, and I agree with the superior court and the Court of Appeal that there were no exigent circumstances excusing compliance with the knock-notice requirement. The majority reaches the opposite conclusion that it was proper for the officers to enter defendant’s residence without giving “notice of [their] authority and purpose” and being “refused admittance” as required by section 1531. My disagreement centers upon a single sentence in the majority opinion, which appears in the paragraph summarizing the majority’s reasoning.

The majority summarizes its reasoning as follows: “The officers reasonably could assume, based on their knowledge of defendant’s probationary status allowing warrantless searches and the apparent ongoing and contemporaneous drug sales on the premises, that some drugs were still present inside which could be readily destroyed once defendant became aware of the officers’ identity and intent. The officers could also reasonably suspect that the commotion occurring immediately outside defendant’s open door, including the officers’ loud identification of themselves as members of the sheriff’s department seeking to execute a probation search, and the sound of a barking dog inside the premises, together would alert defendant to destroy or conceal any drugs on the premises unless the officers entered without further delay. As the trial court found, the loud confrontation with Thomaselli was sufficient to put defendant on notice of the officers’ identity and purpose.” (Maj. opn., ante, at p. 500.)

I agree with the majority that “the loud confrontation with Thomaselli was sufficient to put defendant on notice of the officers’ identity and purpose.” (Maj. opn., ante, at p. 500.) But section 1531 requires more than just notification of the officer’s presence and purpose, it further requires that the occupants have “refused admittance.” The loud confrontation with Thomaselli, therefore, might have made it unnecessary for the officers to announce their authority and purpose but it did not permit the officers to enter the residence until they had either been granted or refused admittance. Such a refusal to admit the officers may be implied, of course, if the occupants do not respond within a reasonable time following a demand for entry. (United States v. Banks (2003) 540 U.S. 31, 38 [157 L.Ed.2d 343, 124 S.Ct. 521]; People v. Gonzalez (1989) 211 Cal.App.3d 1043, 1047 [259 Cal.Rptr. 846].)

I also agree with the majority that “[t]he officers reasonably could assume, based on their knowledge of defendant’s probationary status allowing warrantless searches and the apparent ongoing and contemporaneous drug sales on the premises, that some drugs were still present inside which could be readily destroyed once defendant became aware of the officers’ identity and intent.” (Maj. opn., ante, at p. 500.) But as the majority acknowledges, “no blanket rule exists exempting all narcotics cases from the knock-notice rule .... In other words, the mere fact that the officers are aware of contemporaneous drug activity on the premises does not provide per se justification for a no-knock entry.” (Maj. opn., ante, at p. 497.) There always is a risk that the occupants of a residence that contains drugs may attempt to destroy those drugs as soon as an officer executing a warrant or conducting a probation search announces his or her presence and demands admittance. Nevertheless, the officer cannot lawfully enter until the occupants have either granted or refused admittance or have been given a reasonable opportunity to do so.

My disagreement with the majority, therefore, hinges upon the following statement: “The officers could also reasonably suspect that the commotion occurring immediately outside defendant’s open door, including the officers’ loud identification of themselves as members of the sheriff’s department seeking to execute a probation search, and the sound of a barking dog inside the premises, together would alert defendant to destroy or conceal any drugs on the premises unless the officers entered without further delay.” (Maj. opn., ante, at p. 500.) I disagree with half of this statement. As noted above, I agree that the officers reasonably could conclude that the commotion outside the door would alert the occupants to the presence and purpose of the officers, but I strongly disagree that the officers had a reasonable basis for concluding that such notice of the presence and purpose of the officers would lead the occupants “to destroy or conceal any drugs on the premises unless the officers entered without further delay.” (Ibid.)

The superior court found that the officers had no reason to conclude that drugs were being destroyed or that the occupants were fleeing or arming themselves: “They don’t know if there are drugs being flushed, they don’t know that anybody is being armed. . . . They didn’t have any reason to believe she was armed. They could see she wasn’t fleeing. They have the place surrounded.” As the majority acknowledges, we are bound by such findings of fact that are supported by substantial evidence. (Maj. opn., ante, at p. 496.) Because the officers had no basis for believing that drugs actually were being destroyed, the majority is forced to rely upon the mere possibility that this could happen. Such speculation is not enough. “In the absence of some specific and articulable reasons that set the present search apart from other narcotics searches, the mere possibility that occupants were trying to frustrate the search does not excuse compliance with section 1531. ... If specific indications of arming or destruction of evidence were not required, the exigent-circumstances exception would entirely consume the notice and refusal requirement.” (People v. Gonzalez, supra, 211 Cal.App.3d 1043, 1050.)

In Gonzalez, the Court of Appeal ruled that an entry to serve a search warrant was unlawful when officers in plain clothes knocked on the door of the defendant’s residence shortly before 1:00 a.m. A woman’s voice asked, “ ‘Who is it?’ ” The officer answered, “ ‘Riverbank Police Department. Search warrant.’ ” The officer heard nothing further and, after five seconds, kicked in the door, hitting the defendant in the shoulder and knocking her to the ground. (People v. Gonzalez, supra, 211 Cal.App.3d 1043, 1047.) The defendant testified that when the officer identified himself, she answered, “ ‘just a minute’ ” and peered through a hole in the door, seeing a man in camouflage pants. She was about to unlock the door when it flew open. CIbid.)

The Court of Appeal, in ruling that the entry was unlawful, recognized “the conflicting policies that are at work in this area”: “On the inside of the door is a lone woman with two daughters; she lives in an increasingly violent society and she must decide at 12:50 a.m. whether to throw her door open to a band of armed men who claim to be police but who are standing on her front porch in scruffy street clothes. [Citation.] [f] On the other side of the door stand officers who have no doubts about their authority and purpose—they know they are not rapists or killers, and that they are not common thugs despite their dress and the late hour of their arrival. They believe they have a drug dealer cornered inside, and they know there is someone behind the door who could let them in but who has not done so. They know nothing else about what is happening in the house, but they know that almost anything that is happening behind the closed door is likely to result in injury to them or destruction of evidence. [][] The interests at stake on both sides of the door are quite important; and as the history of the notice and refusal of entry requirement makes clear the interests are not easily reconciled.” (People v. Gonzalez, supra, 211 Cal.App.3d 1043, 1049.)

Although it certainly is possible that the occupants of the residence in the present case, having become aware that the police were there, might attempt to escape or destroy evidence, that possibility always arises as soon as the police announce their presence and demand entry, as they are required to do. In People v. Gastelo (1967) 67 Cal.2d 586, 588 [63 Cal.Rptr. 10, 432 P.2d 706], Chief Justice Traynor writing for a unanimous court rejected the Attorney General’s argument that the police need not comply with section 1531 when executing a search warrant for narcotics because “narcotics violators normally are on the alert to destroy the easily disposable evidence quickly at the first sign of an officer’s presence.” We stated: “No such basis exists for nullifying the statute in all narcotics cases, and, by logical extension, in all other cases involving easily disposable evidence. The statute does not contain the seeds of such far-reaching self-destruction.” (People v. Gastelo, supra, 67 Cal.2d at p. 588.)

Even when the police have good reason to believe that the premises to be searched contain narcotics, and that the occupants are aware that the police are present, the police still are required to give the occupants the opportunity to respond to their demand for entry, unless the police have reason to believe that the occupants actually are attempting to escape or destroy evidence. This distinction may be subtle, but it is important. In the present case, there is nothing to indicate that, even if the occupants had become aware of the presence of the police, they were attempting to escape or destroy evidence. Accordingly, there were no exigent circumstances that excused compliance with the requirement that the officers give the occupants an opportunity to comply with the demand for entrance.

The majority relies principally upon the Court of Appeal’s decision in People v. Flores (1982) 128 Cal.App.3d 512 [180 Cal.Rptr. 368], which the majority says is “very close on point.” (Maj. opn., ante, at p. 497.) The circumstances in Flores were similar to those in the present case but, as explained below, there is a significant difference that distinguishes Flores from the present case. I also disagree with the reasoning in Flores. The reasoning in Flores contains a flaw that, in my view, has led astray the majority in the present case.

In Flores, sheriff’s deputies obtained a search warrant for the defendant’s residence after a paid informant made a series of controlled purchases of heroin there. As the officers waited outside, the informant purchased heroin a final time from the defendant and his accomplice. The defendant then escorted the informant back to the taxicab in which she had arrived while his accomplice remained in the house. When the driver of the taxicab, who was a sheriff’s deputy, revealed that the police were present, the defendant “ran back toward the house.” Another officer yelled at the defendant to stop and placed him under arrest and then, as a fellow officer held the defendant, went immediately to the front door of the residence, which was open with the screen door ajar. He yelled, “ ‘Police officer with a search warrant. Demand an entry,’ ” and entered one or two seconds later. (People v. Flores, supra, 128 Cal.App.3d 512, 518-519.)

The Court of Appeal in Flores held that the entry was lawful, despite the officer’s failure to wait for a response after announcing his presence and purpose, reasoning that “[s]trict compliance [with section 1531] is more readily excused where the police in good faith believe their presence and purpose to enter is already known to the occupants [citations].” (People v. Flores, supra, 128 Cal.App.3d 512, 521.) This echoed an identical statement in Brown v. Superior Court (1973) 34 Cal.App.3d 539, 543 [110 Cal.Rptr. 107]. The Courts of Appeal in both Flores and Brown cited in support of this proposition our decision in People v. Rosales, supra, 68 Cal.2d 299, 302, but we said nothing of the kind in Rosales.

In Rosales, we invalidated an arrest and resulting search because the officers entered the residence without complying with the knock-notice requirement of section 844. The officers went to the defendant’s residence to arrest him for a parole violation. As they approached the residence, they looked through the screen door and saw the defendant in the living room. They entered and arrested the defendant, telling a girl they passed in the living room that they were police officers, but faffing to announce their purpose or demand entry. We held that the fact that the officers told the girl that they were police officers was not sufficient to comply with section 844 because they did not also explain their purpose and demand admittance: “Such identification alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers’ purpose clear to the occupants or showed that a demand for admittance would be futile. There is nothing in the record to show that any of the occupants or even the girl knew that the officers’ purpose was to arrest the defendant or understood that they were demanding admittance.” (People v. Rosales, supra, 68 Cal.2d 299, 302, fn. omitted.) We did not suggest in Rosales that the circumstance that the occupants of a residence are aware of the presence and purpose of the police excuses the requirement that the police demand admittance and permit the occupants to respond to that demand before entering. To the contrary, we held that the entry in Rosales was unlawful, recognizing that section 844, like section 1531, “requires that an officer explain his purpose before demanding admittance, not merely that he identify himself as an officer.” (People v. Rosales, supra, 68 Cal.2d at p. 302.)

Although I find the reasoning in Flores to be flawed in this respect, I believe the Court of Appeal may have reached the correct result in that case. Unlike the present case, the officers in Flores may have had reason to believe that an immediate entry into the residence was necessary to forestall the imminent destruction of evidence. As noted above, the defendant in Flores had left his residence, leaving his accomplice in the house and, upon learning that the police were present, “ran back toward the house.” (People v. Flores, supra, 128 Cal.App.3d 512, 518.) The officer could reasonably have concluded that the defendant’s purpose in running back to his residence was to destroy evidence or escape apprehension. Because the defendant’s accomplice remained in the house, the officer had reason to believe that it was necessary to enter the residence immediately to prevent the defendant’s accomplice from accomplishing what the defendant had just been prevented from doing.

The importance of the circumstance in Flores that the defendant ran when he learned the police were present is demonstrated by comparing the decision in Flores with the decision in People v. Neer (1986) 177 Cal.App.3d 991 [223 Cal.Rptr. 555], Police officers approached Neer’s home to execute a search warrant and encountered a man working in the front yard. They detained the man (who the officers later learned was Neer), shouting: “ ‘We’re the police department, don’t move ... we have a search warrant.’ ” (Id. at p. 994.) One of the officers then went to the front door, which was open with the screen door closed. Seeing people inside, the officer identified himself as a police officer, said he had a search warrant, and immediately entered “because he believed the occupants had heard both announcements and feared they would flee, destroy contraband or arm themselves.” (Id. at p. 995.).

The Court of Appeal in Neer held that the narcotics found in the ensuing search should have been suppressed because no exigent circumstances excused the officer’s violation of section 1531. The court in Neer concluded that “nothing [the officer] knew permitted an objectively reasonable belief exigent circumstances existed.” (People v. Neer, supra, 177 Cal.App.3d 991, 995.) The court added: “There was no suspicious activity by the occupants .... Neer’s detention in the front yard cannot suffice to excuse compliance with the statute. Section 1531 was violated.” (Id. at pp. 996-997.)

The difference between the decisions in Flores and Neer is that the defendant in Flores began running when he learned the police were present, while no similar facts appear in Neer. In this respect, there is no meaningful difference between Neer and the present case. As in Neer, the officers in the present case detained a suspect outside the entrance to the residence and, in doing so, may have alerted the occupants to their presence and purpose. As in Neer, the officers in the present case immediately identified themselves and their purpose and entered the residence without giving the occupants an opportunity to respond because they feared the occupants might arm themselves, destroy evidence, or run. As in Neer, the officers in the present case violated section 1531.

The facts in the present case are nearly identical to those in Neer and differ from those in Flores in an important respect. The person the officers encountered outside defendant’s residence in the present case did not resist or attempt to enter the residence or otherwise give the officers any reason to believe that destruction of evidence was imminent. The encounter with the person outside the residence, at most, served only to alert the occupants of defendant’s residence that the police were present and intended to conduct a search. This may have obviated the need for the officers to announce their presence and purpose, but it did not excuse the officers from complying with the further requirement of section 1531 that they demand admittance and permit the occupants an opportunity to respond to that demand.

The decisions in which this court has found that exigent circumstances excused compliance with the knock-notice requirement have all differed markedly from the present case. In People v. Maddox (1956) 46 Cal.2d 301 [294 P.2d 6], police officers had watched the defendant’s residence for about a month and had seen known narcotics users visit there. The officers arrested a man soon after he left the defendant’s residence who told the officers he had just injected heroin while inside the residence. They went to defendant’s door and knocked. A male voice said, “ ‘Wait a minute,’ ” and the officer heard “the sound of retreating footsteps. He kicked the door open and rushed to the kitchen where he saw defendant with a spoon in his hand running toward the bedroom.” {Id. at p. 303.)

This court rejected the defendant’s argument in Maddox that the arrest was illegal because the officer did not comply with the knock-notice requirement of section 844, stating: “When, as in this case, he has reasonable grounds to believe a felony is being committed and hears retreating footsteps, the conclusion that his peril would be increased or that the felon would escape if he demanded entrance and explained his purpose, is not unreasonable.” (People v. Maddox, supra, 46 Cal.2d 301, 306, italics added.)

In People v. Tribble (1971) 4 Cal.3d 826 [94 Cal.Rptr. 613, 484 P.2d 589], exigent circumstances excused police officers’ failure to comply with the knock-notice requirement where they were pursuing violent criminals who reportedly were armed and the officers heard the sounds of running footsteps. The victim in Tribble had been kidnapped and raped by two men, one of whom said he had a knife. After being released, the victim reported to the police the license number and description of the vehicle the men were driving. The vehicle was registered to the defendant. Officer Moen went to the defendant’s apartment, saw the vehicle parked in the driveway, and found the victim’s photograph album on top of the vehicle. Two men in a Volkswagen that had been parked near the defendant’s vehicle “started to back out and then drove rapidly forward and stopped.” (Id. at p. 833.) Other officers arrested the two men and recovered a gun. Officer Moen went to the defendant’s apartment “where he heard what sounded like running footsteps.” (Ibid.) The officer forced open the door and arrested the defendant.

This court concluded that exigent circumstances excused the officer’s failure to comply with the knock-notice requirement of section 844: “In the present case, the violent character of the crimes involved, the victim’s report that her assailants had a knife, the recovery of a gun from the Volkswagen, and the sound of running footsteps within fully justified Officer Moen’s stated belief that T felt that there was a possibility of bodily injury to myself or my partner if we hesitated.’ Compliance with section 844 was therefore excused.” (People v. Tribble, supra, 4 Cal.3d at p. 833, italics added.)

In People v. Dumas (1973) 9 Cal.3d 871, 877 [109 Cal.Rptr. 304, 512 P.2d 1208], compliance with section 1531 was excused where the police serving a search warrant had been told by an informant that the defendant possessed several firearms “and that he invariably answered the door with a loaded gun in his hand.” In People v. Carrillo (1966) 64 Cal.2d 387, 392 [50 Cal.Rptr. 185, 412 P.2d 377], an officer who had gone to the defendant’s residence to arrest him for violating his parole on a narcotics offense, entered through a screen door without complying with section 844 when he “saw defendant moving quickly through the kitchen at about the same time that another officer knocked on the front door.” (Italics added.)

No similar facts appear in the present case. Although the officers had reason to believe that defendant possessed narcotics and may have become aware that the officers were present and intended to search, they did not observe anyone moving quickly within the residence, or hear the sound of running footsteps, or have information that the occupants were armed. The superior court so found, and we are bound by its finding of fact as it is supported by substantial evidence. (Maj. opn., ante, at p. 496.) Even if the commotion that occurred outside the entrance to defendant’s residence had obviated the need for the officers to knock on the door and announce their intention to enter and conduct a search, they still were obligated to wait a short time to permit the occupants to admit them peacefully, or to refuse them admittance, before they could enter the residence. (See United States v. Banks, supra, 540 U.S. 31, 33 [officers executing a search warrant “called out ‘police search warrant’ and rapped hard enough on the door to be heard by officers at the back door,” then waited 15 to 20 seconds before entering].)

Werdegar, J., and Blease, J.,^* concurred.

Appellant’s petition for a rehearing was denied February 1, 2006. Chin, J., did not participate therein. Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.

1 All further statutory references are to the Penal Code, unless otherwise noted.

2 Section 844 states that a peace officer may break open the door of a house to make an arrest “after having demanded admittance and explained the purpose for which admittance is desired.”

* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.