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The PEOPLE, Plaintiff and Appellant, v. Victor Edwin GRIFFIN, et al., Defendants and Respondents.
In a criminal complaint filed in the municipal court defendants Victor Edwin Griffin (Griffin) and Cynthia Jo Crimmins (Crimmins) (respondents) were charged with possession of methamphetamine for sale in violation of Health and Safety Code section 11378. It was also alleged that each respondent had possessed 28.5 grams or more of methamphetamine for sale at the time of the commission of the offense. (Pen.Code,1 § 1203.073, subd. (b).) In addition, Crimmins was charged with unauthorized possession of a hypodermic needle/syringe in violation of Business and Professions Code section 4143, subdivision (a), and possession of stolen property in contravention of section 496. Following a preliminary examination, at which extensive evidence was received, respondents were bound over to answer all the charges in the superior court, except the charge of possession of stolen property which was dismissed by the magistrate.
Following the filing of motions pursuant to sections 995 and 1538.5 which challenged the legality of the search of respondents' residence, the superior court by minute order granted “Defendant's Motion” without specifying the reasons. The People appeal the ruling dismissing the information.
The relevant facts in this case are virtually undisputed. Respondents lived together in an apartment unit at 3700 Haig Street, Santa Clara, California. Crimmins had prior arrests and was on probation. The probation order contained a condition whereby Crimmins consented to a warrantless search without probable cause of her person and residence.
In April 1985 the Santa Clara Police Department received information from a confidential informant that Crimmins was “selling crank” and receiving stolen property at her apartment. A subsequent police surveillance confirmed that Crimmins was indeed involved in drug dealings, a part of which took place at her Haig Street apartment. The police also learned that Crimmins had violated other probation conditions by failing to report and by accumulating outstanding traffic warrants.
Detective Cooper, accompanied by a number of other officers, located and arrested Crimmins in a shopping center parking lot one block from her apartment. She was advised the officers intended to search her apartment and then the officers proceeded to apartment No. 1 at 3700 Haig Street. Cooper and another officer in police uniform approached the front door while the other officers positioned themselves around the apartment. Cooper was wearing a raid jacket with a police badge on the front and the insignia “Santa Clara Police Department” on the back. The apartment had an outside screen door and an inside wooden door, both of which were closed. Cooper knocked on either the screen door or the wooden jamb next to the screen. A few seconds later the inside wooden door was opened by an unidentified woman. Cooper then opened the screen door and crossed the threshold so that the wooden door could not be slammed; he then announced his official capacity and purpose of his presence. Cooper then saw Griffin sitting in a wheelchair in the main room, walked over to him and informed him that his roommate, Crimmins, had been arrested for violation of probation; that she was subject to a probation search condition; and that they would conduct a search of the premises.
The search of the southeast bedroom of the apartment (which belonged to Griffin but was used jointly with Crimmins [see discussion infra ] ), produced a metal toolbox containing six large packages of methamphetamine, $2,000 in cash and papers with Griffin's name on it. The police also found scales, sifters, filters, packaging material, ledgers and a police scanner, all consistent with possession of methamphetamine for sale. In Crimmins' bedroom the police discovered ledgers, a red capsule, papers addressed to Cindy Crimmins, some marijuana and smoking paraphernalia. A baggie containing one-eighth ounce of methamphetamine was also seized in Crimmins' room. Griffin admitted that the only persons living in the apartment were himself and Crimmins. He also conceded that while the southeast bedroom was his, some of Crimmins' property was kept there and that on occasion she slept in Griffin's bedroom. At the police station both respondents were interviewed. While Crimmins admitted selling methamphetamine, Griffin denied using or dealing in drugs.
The appeal at hand raises two principal issues: (1) whether the failure of the police to comply with the statutory knock and notice requirement in gaining entry into the apartment rendered the evidence seized inadmissible; and (2) whether the search of the toolbox found in Griffin's room was authorized by Crimmins' probation search condition. We agree with the People and reverse.
I. Validity of Entry
It is well settled that before entering the premises either for effecting an arrest or conducting a search, the officers must comply with the statutory knock and notice requirement. Section 844 provides: “To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.” Section 1531, relating to search warrants, similarly provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.” Case law teaches that in order to comply with either section 844 or section 1531 the officers must: (1) knock or utilize other means reasonably calculated to give adequate notice of their presence; (2) identify themselves as police officers; (3) explain the purpose of their demand for admittance; and (4) give the occupants an opportunity to surrender the premises voluntarily (i.e., right to refuse of entry). (Duke v. Superior Court (1969) 1 Cal.3d 314, 319, 82 Cal.Rptr. 348, 461 P.2d 628; Greven v. Superior Court (1969) 71 Cal.2d 287, 289, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales (1968) 68 Cal.2d 299, 302–303, 66 Cal.Rptr. 1, 437 P.2d 489; Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 937, 188 Cal.Rptr. 351; People v. Neer (1986) 177 Cal.App.3d 991, 995–996, 223 Cal.Rptr. 555.)
However, the cases make it equally clear that a failure to conform to the above-stated criteria does not invalidate the legality of arrest and/or search if there was substantial compliance with the statute. Substantial compliance can be found if the policies and purposes of the statute have been satisfied. (People v. LaJocies (1981) 119 Cal.App.3d 947, 953, 174 Cal.Rptr. 100; People v. Turner (1976) 54 Cal.App.3d 500, 504, 126 Cal.Rptr. 652.) These statutory policies are: (1) the protection of the privacy of the inhabitants; (2) the protection of innocent persons who may also be present on the premises; (3) the prevention of situations leading to violent confrontations between the occupants and the police; and (4) the protection of the police officers who might be injured by startled and fearful householders. (Duke v. Superior Court, supra, 1 Cal.3d at p. 321, 82 Cal.Rptr. 348, 461 P.2d 628; People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal.Rptr. 835, 511 P.2d 1187.) Consistent therewith, it has been held that the statutory purposes are met whenever prior to entry the police officers identified themselves and announced the purpose of their visit. (Greven v. Superior Court, supra, 71 Cal.2d at pp. 291–293, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales, supra, 68 Cal.2d at pp. 302–303, 66 Cal.Rptr. 1, 437 P.2d 489; Duke v. Superior Court, supra, 1 Cal.3d at p. 319, 82 Cal.Rptr. 348, 461 P.2d 628.) Once these two crucial facts are proven, the entry of the police is lawful even if there has been some technical, insignificant failure to completely conform to the statute so long as the police procedures serve its policies. (People v. Peterson, supra, 9 Cal.3d at p. 723, 108 Cal.Rptr. 835, 511 P.2d 1187; People v. LaJocies, supra, 119 Cal.App.3d at pp. 952–954, 174 Cal.Rptr. 100; People v. Gallo (1981) 127 Cal.App.3d 828, 838–840, 179 Cal.Rptr. 662.)
The case at bench falls squarely within the rules defining substantial compliance. The officers seeking entry were easily identifiable as members of the police. Cooper had a raid jacket with a police badge and insignia on it, while his companion, Officer Solito, wore a police uniform. Upon arriving at the front door, Cooper knocked on the door jamb in order to announce their presence. When in response the inside wooden door was opened by a female occupant of the apartment, Cooper explicitly advised her that he and his companion were police officers and that they had come to conduct a search. On entering the room and seeing Griffin in a wheelchair, Cooper readvised him that they intended to search the premises for the reason that Crimmins was arrested for probation violation and that her apartment was subject to a probation search condition.
The fact that Cooper orally identified himself as a police officer and announced his purpose after opening the outside screen door and placing his foot in the doorstep, amounts, at best, to a mere technical violation (People v. Peterson, supra, 9 Cal.3d at p. 723, 108 Cal.Rptr. 835, 511 P.2d 1187) which does not negate the magistrate's finding of substantial compliance. For none of the objectives and policy considerations of the statute (see discussion, supra ) were defeated by the officers' conduct. The disputed incident did not invade the privacy right of either Griffin or his female companion inasmuch as they both became fully visible upon the opening of the inside wooden door. Nor did the incident enhance the risk of violence to any of the inhabitants, because the announcement of the presence and purpose of the police occurred before the officers actually entered the premises. Nor was the potential risk of confrontation between the police and the startled occupants increased because the inhabitants had been made aware of the purpose and demand of the police before the officers entered the dwelling.
Our conclusion finds considerable support in both California and the federal law. For example, in People v. Peterson, supra, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187, a case closely on point, the officers went to defendant's apartment to conduct a search for narcotics. The inner door of the apartment was open and Officer Kalm was able to see through the closed screen door into the living room where a man and a woman were seated and engaged in conversation. Kalm, who was standing at the doorway, knocked several times. After waiting approximately one minute the officer opened the screen door and, while standing at the threshold, he identified himself, announced the purpose of his presence and then entered the room. Defendant, who was convicted of possession of heroin, claimed that the trial court should have set aside the information because the police officers failed to comply with the knock and notice requirement contained in section 1531. The Supreme Court rejected defendant's contention and held that there was substantial compliance with the statute because the policies and purposes underpinning the code section were not violated and that such “technical and, in the particular circumstances, insignificant defaults may be ignored.” (Id., at p. 723, 108 Cal.Rptr. 835, 511 P.2d 1187.) The striking similarity to the case at bench is well illustrated in the court's reasoning: “The question then is whether Officer Kalm by delaying his announcement until after he had opened the screen door frustrated or made nugatory any of the purposes and policies previously enumerated. We note that the interior of the residence and the occupants therein were visible to any member of the public who, like the officers, had proper reason to enter into the premises and approach the visibly open doorway. Thus, no right of privacy was infringed as the opening of the screen door revealed nothing more than was already exposed to the officers' view and they did not physically intrude into the home until after the announcement. [¶] It is equally clear that no greater risk of violence to any person on the premises was created, as at all times after approaching and knocking the officers could clearly observe the occupants within the interior and take precautionary measures if necessary. Nor can it be argued successfully that there was a greater risk that the occupants might respond violently by reason of ignorance of the officers' identity and purpose, as the officers were immediately visible and announced their purpose to the occupants who were thus made aware of the situation and its demands. Assuredly the personal safety of the officers, as in the case of the occupants, was not subjected to any increased danger. We conclude that in the particular circumstances of this case there was substantial compliance with section 1531, and that there also has been compliance with the purposes and policies set forth in Duke v. Superior Court, supra, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628 and Greven v. Superior Court, supra, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432.” (Id. 9 Cal.3d at pp. 723–724, 108 Cal.Rptr. 835, 511 P.2d 1187, footnote omitted, emphasis added, see also People v. Hobbs (1987) 192 Cal.App.3d 959, 965–966, 237 Cal.Rptr. 742.)
In People v. LaJocies, supra, 119 Cal.App.3d 947, 174 Cal.Rptr. 100, another analogous case, the police officer, who conducted a search pursuant to a parole search condition, opened the screen door of appellant's residence and entered the premises after announcing his identity and purpose, but before giving her an opportunity to refuse or allow the admittance. Although appellant's right of refusal was clearly violated, the court held that the officer substantially complied with section 1531 because the statutory policies and purposes were not frustrated. The court noted that neither appellant's privacy nor a violent confrontation was threatened by the officer's premature entry of the premises because appellant knew the officer's purpose, and the risk of a violent encounter between appellant and the police was not increased by the manner of entry. (Id., at pp. 953–954, 174 Cal.Rptr. 100.)
In People v. Gallo, supra, 127 Cal.App.3d 828, 179 Cal.Rptr. 662, yet another screen door case, the officer gained entry into defendant's premises following knocking and announcing himself, but before waiting for the answer of the occupant. Despite the failure to literally comply with the statute, the appellate court upheld the legality of the subsequent search and reversed the order dismissing the information by emphasizing: “The statutory purpose is not that the officer must obtain a consensual entrance, but rather that the police not act so precipitously that the entrance violates privacy, endangers innocent persons who may be present, is conducive to violence or endangers the police who may be injured by a frightened householder.” (Id., at p. 838, 179 Cal.Rptr. 662.)
The federal cases are in accord. In United States v. Bustamante–Gamez (9th Cir.1973) 488 F.2d 4, a case presenting an almost identical issue, the officers announced themselves at the front door and simultaneously entered the garage door. In upholding the legality of entry under 18 United States Code section 3109,2 the federal equivalent of section 1531, the court held that the knock and notice requirements both at common law and in constitutional context are flexible and that where the statutory purposes (i.e., the protection of privacy, prevention of violent confrontations between the police officers and the occupants of the house) are satisfied, a ritualistic compliance with the statute is not required. (Id., at pp. 9–10.)
United States v. McConney (9th Cir.1984) 728 F.2d 1195 is another case in point. In McConney, the solid front outer door was open, but the inner screen door was closed. Officer Olson knocked on the door and announced his identity and purpose. He saw defendant and another person inside. Without waiting for a response or a refusal to enter, Olson opened the screen door and moved in with other agents to conduct a search. In holding that the entry did not violate 18 United States Code section 3109, the court emphasized “When the police have properly knocked and announced their identity and purpose, mild exigency is sufficient to justify simultaneous entry when entry can be accomplished without physical destruction of property. [Citations.] Mild exigency may exist where there is a likelihood that the occupants will try to escape, resist, or destroy evidence.” (Id., at p. 1206.) Needless to say that in cases involving illegal possession of narcotics, there is always the likelihood that the occupants will resort to the destruction of the incriminating evidence, which means that in this type of situation “mild exigency” is inherently present.
II. Search of the Toolbox
Griffin raises the further issue that the search of the toolbox was unlawful because Crimmin's probation search condition did not authorize the search of a toolbox found in his bedroom. We disagree.
It is well settled that where the search is conducted pursuant to a parole or probation condition, the consent of a cotenant or joint occupier of the premises is not necessary. In such an instance the officers clearly have the right to search those portions of the house that are occupied by the probationer or to which the latter has access, whether or not the cotenant consents to the search. (People v. LaJocies, supra, 119 Cal.App.3d at p. 955, 174 Cal.Rptr. 100; People v. Johnson (1980) 105 Cal.App.3d 884, 885, 164 Cal.Rptr. 746; People v. Icenogle (1977) 71 Cal.App.3d 576, 586, 139 Cal.Rptr. 637.) Consistent therewith, it has been held that a search pursuant to a probation condition is valid where there is a reasonable belief that the item to be searched belongs to the probationer or is found in an area used by both the probationer and his or her cotenant the joint occupier. (People v. Britton (1984) 156 Cal.App.3d 689, 703, 202 Cal.Rptr. 882.) The rationale of this rule is that the probationer's residence should not be made a sanctuary for the co-occupier's contraband because “there would be a gross moral and legal incongruity in a requirement that police blind themselves to evidence discovered in a lawful search that may implicate a third person while the use of the same or other evidence is permitted against a probationer who faces both a new prosecution and revocation of probation. The third person, if abetting the probationer in a renewal of criminal activity that destroys the purposes of probation, does not deserve such favored status.” (Russi v. Superior Court (1973) 33 Cal.App.3d 160, 169, 108 Cal.Rptr. 716.)
The evidence herein establishes that the apartment was occupied by both respondents. In addition, Griffin admitted to the police that although the southeast bedroom where the toolbox was found was his, Crimmins kept some of her property in that bedroom and that occasionally she slept there with Griffin. This evidence together with the drugs and paraphernalia found in the bedroom, justified the police in reasonably concluding that Crimmins, a drug user, was a cohabitant with Griffin and that she had access to, and/or joint control over, the southeast bedroom. Consequently, the toolbox was subject to search without Griffin's consent.
The order is reversed.
I dissent.
We are fortunate that explicit factual findings concerning the precise sequence of events accompanying the entry into defendants' apartment were made by the magistrate who conducted defendants' preliminary examination and ruled on the motions to suppress evidence made by defendants in connection with that proceeding. Those findings were made after the magistrate had had an opportunity to review a transcript of the evidence produced. The findings 1 were as follows:
“The testimony of Officer Cooper reveals the following sequence of events in gaining entry into the residence in question. Number one, Cooper in full uniform and perhaps assisted by another officer approaches the front door of unit No. 1. Number two, he notes a closed outer screendoor and behind that a solid main door which is also closed. Three, he knocks on either the screendoor or its wood jamb. Four, within three to five seconds an unidentified woman opens the solid door. Five, at this time Officer Cooper opens the screendoor and crosses the threshold so that the door cannot be slammed. Six, he then announces his official capacity and purpose of his presence. Seven, he sees co-defendant Griffin in his wheelchair in the main room. Everything seems placid and non-threatening.” The magistrate denied suppression on the ground that there was substantial compliance with Penal Code sections 844 and 1531 2 in that “the underlying polices of knock-notice were not frustrated by the officer's conduct in the instant case.”
This chronology establishes that Officer Cooper, by opening the screendoor and “cross[ing] the threshold,” effected a “breaking” within the meaning of sections 844 and 1531. (People v. Rosales (1968) 68 Cal.2d 299, 303, 66 Cal.Rptr. 1, 437 P.2d 489; see Parsley v. Superior Court (1973) 9 Cal.3d 934, 937–938, 109 Cal.Rptr. 563, 513 P.2d 611 [text and fn. 2]; People v. Keogh (1975) 46 Cal.App.3d 919, 927, 120 Cal.Rptr. 817.) Only afterward did he announce his identity and intended purpose. It does not appear that he ever requested permission to enter. Unlike the majority, I cannot conclude that entry before notice amounts to substantial compliance with statutory commands for precisely the opposite, i.e., notice before entry. It amounts to no compliance at all.
It is fairly inferable from the magistrate's finding that Officer Cooper's identity as a peace officer was known to the unidentified woman as soon as she opened the inner door and saw Officer Cooper “in full uniform.” This still leaves the matter of the officers' purpose in seeking entry. That information was not communicated before the entry, nor was there a request for admission. The absence of these statutory requirements is fatal to the resulting search.
Although it has been stated that “[s]ubstantial compliance is sometimes found even though officers have failed to state their purpose before entering” (People v. Keogh, supra, 46 Cal.App.3d 919 at p. 927, 120 Cal.Rptr. 817), an examination of the authorities makes clear just how limited is this exception and why it cannot save this search.
“Such identification [of persons as police officers] alone could constitute substantial compliance ․ only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile.” (People v. Rosales, supra, 68 Cal.2d 299 at p. 302, 66 Cal.Rptr. 1, 437 P.2d 489 [emphasis added].) There is nothing in the record which can show how the occupants of the apartment could have by osmosis become aware of why these officers were at their front door. There is likewise absolutely nothing in the record which gives the slightest hint that a request for admission, which was never made, would have been refused. There is consequently no basis for presuming that such a request would have been futile.
The Supreme Court has excused literal compliance with sections 844 and 1531 “if the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence.” (People v. Tribble (1971) 4 Cal.3d 826, 833, 94 Cal.Rptr. 613, 484 P.2d 589; accord Parsley v. Superior Court, supra, 9 Cal.3d 934 at p. 938, 109 Cal.Rptr. 563, 513 P.2d 611; People v. Dumas (1973) 9 Cal.3d 871, 877, 109 Cal.Rptr. 304, 512 P.2d 1208.) Officer Cooper never expressed any belief that he or other officers were in any peril whatsoever, still less that any danger would be increased by asking for permission to enter to conduct a search. The only person they intended to arrest, defendant Crimmins, had already been arrested. The only pertinent testimony by Officer Cooper negates any possibility that he had a good faith fear that evidence would be destroyed.3
The undisputed evidence and the magistrate's findings establish that Officer Cooper did not request admission or advise the unidentified woman of his purpose before an entry of defendants' apartment was effected. Unlike the majority, I cannot find that Officer Cooper's conduct is excusable because the policies underlying sections 844 and 1531 were not violated. Far from it. There can be no doubt that the officers' intrusion violated the inhabitants' privacy. Nor can the remaining policies, which “may be summarized as prevention of violence to person or property due to unannounced intrusions” (People v. Jacobs (1987) 43 Cal.3d 472, 486, 233 Cal.Rptr. 323, 729 P.2d 757 (dis. opn. of Mosk, J.)), be deemed satisfied. It is clear from the magistrate's description of his findings as reflecting “the following sequence of events” that Officer Cooper did not see defendant Griffin until after the illegal entry had been effected. It seems obvious that if the officers could not see Griffin, Griffin likewise could not see the officers. Had Griffin observed only one or more uninvited men barging into his apartment without explanation immediately after the door was opened, he could easily have taken fright and acted before the officers' identity and purpose were known to him. If he had a gun and a nervous disposition, a tragedy with potentially lethal consequences to all concerned may well have ensued. That is precisely the sort of situation sections 844 and 1531 are designed to avoid. That the apartment did not become the O.K. Corral, and that the magistrate found that following Officer Cooper's belated announcement “[e]verything seem[ed] placid and non-threatening,” cannot be dispositive. Just as an illegal search cannot be justified by what is found, an illegal entry should not be excused simply because it does not result in a casualty-ridden tragedy. The statutes look to the “prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice.” (Duke v. Superior Court (1969) 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 461 P.2d 628.) We should not have to wait for a case involving serious injury to a peace officer inflicted by a homeowner before we agree to enforce that policy of deterrence.
Nor do I find the judicial decisions cited by the majority as providing any validation for the officers' entry here. People v. Peterson (1973) 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187, upon which the majority places considerable reliance, involved these circumstances: “According to Officer Keith Kalm, ․ the officers stopped at the entrance to defendant's home. An inner door was open and Officer Kalm was able to see through a closed but unlatched screen door into the living area where in plain view he observed a man and a woman seated and engaged in conversation. [¶] The officer testified that while he was standing at the doorway he knocked several times but neither party within the dwelling responded. After waiting approximately one minute he opened the screen door, stood at the threshold, identified himself and, after stating he had a warrant for a search of the premises, entered.” (Id. at p. 721, 108 Cal.Rptr. 835, 511 P.2d 1187.) The court's discussion as to why the situation came within the substantial compliance doctrine paid great attention to consequences of the officer being able to see into the house and be seen by the occupants thereof:
“We note that the interior of the residence and the occupants therein were visible to any member of the public who, like the officers, had proper reason to enter onto the premises and approach the visibly open doorway. Thus, no right of privacy was infringed as the opening of the screen door revealed nothing more than was already exposed to the officers' view and they did not physically intrude into the home until after the announcement. [¶] It is equally clear that no greater risk of violence to any person on the premises was created, as at all times after approaching and knocking the officers could clearly observe the occupants within the interior and take precautionary measures if necessary. Nor can it be argued successfully that there was a greater risk that the occupants might respond violently by reason of ignorance of the officers' identity and purpose, as the officers were immediately visible and announced their purpose to the occupants who were thus made aware of the situation and its demands. Assuredly the personal safety of the officers, as in the case of the occupants, was not subjected to any increased danger. We conclude that in the particular circumstances of this case there was substantial compliance․” (Id. at pp. 723–724, 108 Cal.Rptr. 835, 511 P.2d 1187 [fn. omitted, emphasis added].)
Peterson is obviously distinguishable for a number of reasons. First, and most importantly, we are not presented with a situation where the officers and occupants were aware of each other from the outset. The officers here did not know about defendant Griffin's presence, nor he of theirs, until they had entered the apartment. We consequently have a privacy violation, which Peterson did not. Second, as previously mentioned, the entry here preceded the officers' announcement of their intent to search. The entry in Peterson followed the officers' announcement. Finally, Peterson involved a constructive refusal of admittance, a factor not present here.
People v. LaJocies (1981) 119 Cal.App.3d 947, 174 Cal.Rptr. 100, is not controlling because it involved an entry which followed the occupant being told of the officers' identity and purpose. (Id. at p. 952, 174 Cal.Rptr. 100.) People v. Gallo (1981) 127 Cal.App.3d 828, 179 Cal.Rptr. 662, involved police walking through an open garage door commonly used by the occupant and others as a means of ingress (the court stated that “the use of this means of entry was notorious and continuous”), observation of the occupants through the screen door from the the garage into the house, and a tacit refusal of admittance. (Id. at pp. 834, 840, 179 Cal.Rptr. 662.) The reasons for distinguishing Peterson are equally applicable to Gallo. United States v. Bustamante–Gamez (9th Cir.1973) 488 F.2d 4, 12, which in addition involved an exigent circumstance (“the elements of hot pursuit, including the fact that the officers could well believe that the occupants ․ knew of the officers' presence, made attempted flight likely”), which has already been shown to have no application here. United States v. McConney (9th Cir.1984) 728 F.2d 1195, like Peterson and Gallo, involved a screen door through which the officers observed the occupants, who tacitly refused the officers' request for admittance. Like Bustamante–Gamez, it too involved an exigent circumstance (“Agent Olson had recognized McConney as he observed him through the door, and feared for his safety and that of the other officers if McConney were allowed time to arm himself”). (United States v. McConney, supra, at p. 1206.)
It has been repeatedly held that “an entry effected in violation of the provisions of section 844 or its companion section 1531 renders any subsequent search and seizure ‘unreasonable’ within the meaning of the Fourth Amendment[,] ․ nullifies the subsequent search and requires exclusion of the evidence obtained.” (Duke v. Superior Court, supra, 1 Cal.3d 314 at p. 325, 82 Cal.Rptr. 348, 461 P.2d 628; accord Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Neer (1986) 177 Cal.App.3d 991, 997–1001, 223 Cal.Rptr. 555; People v. Constancio (1974) 42 Cal.App.3d 533, 542, 116 Cal.Rptr. 910.)
I would hold that the magistrate erred in denying defendants' motion to suppress the evidence seized in the search of the premises. Because there is no other evidence to hold them to answer the charges alleged,4 the superior court correctly ruled that defendants were committed without probable cause. (See People v. Laiwa (1983) 34 Cal.3d 711, 728, 195 Cal.Rptr. 503, 669 P.2d 1278; Parsley v. Superior Court, supra, 9 Cal.3d 934 at p. 943, 109 Cal.Rptr. 563, 513 P.2d 611.) I would affirm the order.
FOOTNOTES
FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.. FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.
2. 18 United States Code section 3109 reads as follows: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
1. Page references to that transcript recited by the magistrate have been deleted.
2. Statutory references are to the Penal Code.
3. Officer Cooper's testimony on cross-examination is revealing on this point:“Q. So you knocked and after you knocked, you didn't hear anything unusual?“A. No.“Q. How long after the knocking was it that the interior wood door opened?“A. A matter of three, four, five seconds.“Q. A reasonable period of time?“A. Yes.“Q. Up to that point you hadn't heard anything unusual like screaming or yelling from inside?“A. No.“Q. The patter of feet away from the door?“A. None.“Q. The flushing of toilets or anything that would have caused you concern?“A. None.”
4. The evidence of the police surveillance of defendant Crimmins prior to the entry (majority opn., ante, p. 908) might be sufficient to support a charge that she was selling a controlled substance. But all evidence relative to possession for sale derived from the illegal search and seizure.
ANDERSON, Presiding Justice.
CHANNELL, J., concurs.
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Docket No: No. H002381.
Decided: April 15, 1988
Court: Court of Appeal, First District, Division 4, California.
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