People v. Gifford , 13 Brief Times Rptr. 1475 ( 1989 )

Justice ERICKSON

delivered the Opinion of the Court..

Pursuant to C.A.R. 4.1 the prosecution appeals from a district court order suppressing all evidence seized during a search of the defendant’s residence as well as statements made by the defendant during the course of the search. In our view, the trial court properly held that the police officers made an illegal forced entry. As this issue is dispositive, we decline to address the remaining issues presented by this appeal. Accordingly, we affirm the order of the district court.

I.

At the suppression hearing, the prosecution presented the testimony of Detectives Andrew and Samek of the Pueblo Police Department and Jay Willden. Andrew and Samek questioned Willden, who was being held on charges unrelated to this proceeding. Willden confessed to the commission of several burglaries and said that he sold the stolen items to the defendant at his residence for cash. Willden also said that he had friends that had been selling stolen property to the defendant for several months on a regular basis. He stated that the defendant told him that he would buy “most any electronic stolen property and especially handguns” for cash. The officers verified the details of Willden’s story by reviewing police reports made during the investigations of the burglaries Willden admittedly committed.

After Willden was released on bond, Detectives Samek and Andrew arranged for him to sell three video cassette recorders (VCRs) to the defendant at his home. Andrew obtained the three VCRs from a business previously burglarized by Willden. With Samek monitoring the transaction through an electronic listening device, Willden sold two of the VCRs to the defendant for $270 and exchanged the third for one that Willden had sold to the defendant that did not work. During the course of the sale, Willden told the defendant that the VCRs were stolen.

After the transaction was completed, Sa-mek reported the facts relating to the sale to Detective Andrew. Andrew prepared an affidavit supporting the application for a search warrant using the information provided by Willden, the corroborating police reports, and Samek’s report of the sale of the three VCRs. After obtaining the search warrant for the defendant’s residence at 2211 Moline, Andrew notified Sa-mek, who was waiting near the defendant’s residence, of its issuance. The search warrant authorized seizure of a number of specifically described pieces of electronic equipment, and:

All electronic equipment (video cassette recorder’s [sic], televisions, microwaves, stereo components) and hand guns with serial numbers removed, altered or destroyed and articles of personal property tending to establish the identity of persons in control of said contraband, related paraphenalia [sic], consisting in part and including, but not limited to, utility company receipts, rent receipts, financial records, cancelled mail envelopes, photographs, keys, and monies related to the foregoing illegal activities.

Samek, accompanied by two officers with other officers waiting around the house, approached the front door of the defendant’s residence. Three people, unidentified in the record, were on or near the front porch. Samek identified himself and the other police officers, and stated that a search warrant had been issued authorizing a search of the house. He then entered the house through a closed, unlocked door, followed by seven other officers. The police officers admittedly did not have possession of a warrant when the entry was made. Samek encountered the defendant’s wife in a room adjoining the front door, and informed her that he was a police officer and that a warrant had been issued to search the house. After entry was made, each of the police officers searched a different part of the house. The defendant, who was not present when the officers entered, was brought to the house by another police officer shortly after the search commenced. Approximately thirty minutes later, Andrew arrived with the search warrant.

As many as fifteen police officers participated in an extensive search of the defendant’s house at 2211 Moline and a garage owned by the defendant at a separate address, 2210 Newport. The search lasted approximately eight hours and numerous items were seized that were not described in' the warrant. Five items specifically described in the warrant were seized, including the three VCRs which Willden sold to the defendant. Five items lacking legible serial numbers and an address list, utility bills, and other assorted bills, receipts and deposits were also seized. Other items not described in the warrant were seized, including electronic equipment with legible serial numbers, clothing in various sizes with price tags attached, and jewelry. Based on the items acquired pursuant to the warrant, the defendant was charged with five counts of theft by receiving, section 18-4-410, 8B C.R.S. (1986).

II.

The defendant filed a motion to suppress evidence alleging, inter alia, that: (1) the search warrant issued for 2211 Moline was not supported by probable cause; (2) the description of the items to be seized was insufficient; (3) the police officers failed to knock and announce their purpose and authority prior to entering; and (4) the property was illegally seized pursuant to a general exploratory search. The defendant also moved to suppress the items taken from the garage at 2210 Newport.

The trial court granted the defendant’s motion to suppress, holding that the officers made a forceful and illegal entry into the defendant’s home without justification. As an alternative ground, the trial court found that the search mandate to seize personal property tending to establish the identity of persons in control of the stolen property was not based on probable cause. The court also concluded that the seizure of items not described in the warrant did not satisfy the plain view exception to the search warrant requirement. The defendant’s statements to the police during the search were also suppressed as fruit of the poisonous tree. The prosecution appealed.¹

III.

The trial court suppressed all evidence seized during the search of the defendant’s residence and all statements made by the defendant during the search on the ground that the method of executing the warrant invalidated the entire search. The first issue is whether the officers complied with the “knock and announce” requirement. The trial judge held that the officers forcibly entered the defendant’s house through an unlocked, closed door without notice to or permission of the occupants and immediately thereafter conducted a search of the defendant’s residence prior to the arrival of a search warrant. In reaching this conclusion, the court found that the knock and announce requirement was not satisfied by Samek’s statement to the unidentified persons outside of the house.²

A basic axiom of search and seizure law is that a lawful search must be preceded by a lawful entry of the premises to be searched. See Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). In People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971), we held, on the basis of the fourth amendment and the common law, that police officers executing a warrant must identify themselves and their purpose prior to a forced entry, unless certain exceptions apply.³ Id. at 559, 484 P.2d at 1241. The prosecution does not contend that any of the exceptions set forth in Lujan apply to this case. The search warrant was not a “no knock” warrant and no justification was shown for entry without complying with the knock and announce requirement of Lujan.

Since the trial court found that there was a forced entry and that the requirements of People v. Lujan were not met, the burden was on the prosecution to establish that the search was lawful. People v. Madson, 638 P.2d 18, 33 (Colo.1981). In People v. Griffin, 727 P.2d 55 (Colo.1986), an illegal search was made and then the premises were secured until the search warrant arrived. We held that the search pursuant to the warrant was not tainted by the unlawful warrantless search made at the time of entry and suppressed only those items which were seized prior to the time the search warrant was brought to the premises. Id. at 58. Since the search warrant in Griffin was based on information obtained by the officers prior to the warrantless entry, the prosecution established that the search pursuant to the warrant was sufficiently attenuated from the prior unlawful entry that the fruits of the search were admissible under the independent source doctrine. Id. The prosecution in this case did not establish that the search of the defendant's residence was free of the taint of the illegal entry.

A forced entry need not be accomplished by actual physical violence, since an unannounced entry through an unlocked door may be forcible. Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968);⁴ People v. Godinas, 176 Colo. 391, 394-95, 490 P.2d 945, 947 (1971). Such an entry is as viola-tive of the purposes underlying the knock and announce requirement as an entry involving actual physical harm to property. The knock and announce requirement insulates persons from the shock of unannounced entry of police officers into their homes, and protects both occupants and searching police officers from the consequences of the use of force in defense of the home against unauthorized entry. 2 W. Lafave, Search and Seizure § 4.8, at 272-73 (2d ed.1987). Since Samek and the other officers entered the defendant’s house through a closed door, we agree with the trial court’s finding that the searching officers’ entry into the defendant’s residence was forced so as to require notice prior to entry. People v. Lujan, 174 Colo. at 559, 484 P.2d at 1241.⁵

We also agree with the trial court’s conclusion that Samek’s conduct did not satisfy the notice requirement. An officer executing a search warrant must identify himself and his purpose to the person or persons in control or apparent control of the premises to be searched. See Model Code of Pre-Arraignment Procedure, § SS 220.3(2) (1975). Here, Samek identified himself and two other officers to three unidentified persons who were on or near the front porch, and advised them that a search warrant had been issued for the house. The prosecution presented no evidence that the three had control of or any contact or interest in the premises, and no evidence supports a reasonable belief by the police officers that the three persons were occupants, residents, or owners in control of the home. There is simply no basis to support a finding that the officers complied with the knock and announce requirement.

The appropriate remedy for an invalid entry pursuant to a warrant is suppression of the evidence seized during the search. United States v. Baker, 638 F.2d 198, 202 (10th Cir.1980). See also Sabbath v. United States, 391 U.S. at 586, 88 S.Ct. at 1756; Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 1197-98, 2 L.Ed.2d 1332 (1958).⁶

IV.

We affirm the trial court’s order suppressing the fruits of the search on the grounds that the officers failed to comply with the knock and announce requirement. Since the failure to comply with the requirements of Lujan vitiates the search, the remaining issues raised by the prosecution are moot.

ROVIRA, J., dissents and MULLARKEY, J., joins in the dissent. VOLLACK, J., dissents and MULLARKEY, J., joins in the dissent.

1 . The trial court order suppressed the evidence seized from the garage at 2210 Newport because the warrant was not issued for that address. Additionally, a handgun was suppressed on the grounds that there was not probable cause to believe that it was still at the defendant’s residence since Willden claimed to have sold the gun to the defendant approximately three months prior to the issuance of the warrant. The prosecution does not appeal these parts of the trial court’s suppression order.

2 . The trial court did not address the issue of whether the officers were required to present a copy of the warrant to the occupants of the premises upon entry and prior to the commencement of the search. We agree that presentment of the warrant prior to the commencement of the search is not an absolute constitutional requirement. United States v. Hepperle, 810 F.2d 836, 839 (8th Cir.), cert. denied, 483 U.S. 1025, 107 S.Ct. 3274, 97 L.Ed.2d 772 (1987). However, we also agree with the Eighth Circuit that failure to present the warrant when the search is commenced creates "a greater potential for confrontation and violence,” and should be discouraged. Hepperle, 810 F.2d at 839. Possession of the search warrant by the searching officers at the commencement of the search is a relevant consideration in determining the reasonableness of the search. 2 W. LaFave, Search and Seizure § 4.12, at 359 (2d ed. 1987).

3 . The exceptions to the "knock and announce" requirement are:

(1) the warrant expressly authorizes forced entry without such a prior announcement, or

(2) the circumstances known to such officer or person at the time of forced entry, but, in the case of the execution of a warrant, unknown to the applicant when applying for such warrant, give him probable cause to believe that — (a) such notice is likely to result in the evidence subject to seizure being easily or quickly destroyed or disposed of, which is true in every case involving a search for narcotics, (b) such notice is likely to endanger the life or safety of the officer or other person, (c) such notice is likely to enable the party to be arrested to escape, or (d) such notice would be a useless gesture.

People v. Lujan, 174 Colo, at 559, 484 P.2d at 1241.

4 . Sabbath interpreted 18 U.S.C. § 3109, the federal knock and announce (or "identify") statute, to apply to an unannounced entry through an unlocked door as well as actual physical "breaking." 391 U.S. at 590, 88 S.Ct. at 1758. Although this case does not involve the federal statute, we find the reasoning of Sabbath applicable to analysis of the knock and announce rule under the fourth amendment. See United States v. Valenzuela, 596 F.2d 824 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979) (knock and announce requirement of 18 U.S.C. § 3109 incorporated into fourth amendment).

5 .This result is not contrary to our holdings in People v. Towery, 194 Colo. 486, 573 P.2d 104 (1978); People v. Campbell, 185 P.2d 312, 524 P.2d 73 (1974); and People v. Malone, 175 Colo. 31, 485 P.2d 499 (1971). Cf. People v. Godinas, 176 Colo. at 394-95, 490 P.2d at 947. The determination of whether an entry pursuant to a warrant is forcible is fact specific, and the holdings in Towery, Campbell, and Malone are limited to the specific facts set forth in those cases.

6 . This holding does not conflict with People v. Griffin, 727 P.2d 55 (Colo. 1986), where we addressed the issue of whether police officers may lawfully secure premises to be searched prior to the issuance of a search warrant. Relying on People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973), we held in Griffin that evidence obtained pursuant to a valid search warrant is admissible despite a previous unlawful entry and seizure by the police, so long as the search following the unlawful entry is not tainted by the prior illegality. In Griffin, we emphasized the lawful search which led to the discovery of narcotics when we stated:

The trial judge found that there was probable cause to search the residence for contraband. However, the trial judge found, and the prosecution concedes, that there were no exigent circumstances to justify the warrantless entry by the sheriff's deputies. The trial court’s determination that the initial entry was unlawful was correct, and the prosecution has conceded that the two bongs seized as evidence in plain view must be suppressed. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973).

The central issue is whether the trial court properly suppressed the narcotics obtained as a result of the execution of the search warrant. The marijuana, hashish, and psilocybin mushrooms were not discovered until the valid search warrant was executed.

727 P.2d at 58 (emphasis added). Since the search warrant in Griffin was based on information obtained by the police officers before the warrantless entry, we held that the evidence seized pursuant to the warrant was improperly suppressed. However, we affirmed the suppression of all items seized as a result of the initial unlawful entry. People v. Griffin, 727 P.2d at 58.

This case does not present the factual circumstances in Griffin since Detective Samek and the other officers commenced an immediate search of the defendant’s home and did not seek to secure the premises. The Griffin issue was not raised by the prosecution in the trial court and has not been argued or asserted by the prosecution or the defendant on appeal. The factual differences distinguish this case from Griffin. The Griffin issue is addressed only in the dissent, and has not been cited, addressed, or considered by the parties or the trial court. If a Griffin issue is raised by the prosecution it may be addressed by the trial court if there is evidence to support the determination of that issue. The illegal entry and the manner in which the warrant was executed has caused the court to reach a different result in this case than in Griffin.