Metropolitan News-Enterprise


Monday, May 17, 2004


Page 1


Court of Appeal Rules:

Search of Probationer’s Home Was a ‘Knock-Notice’ Violation


By Kenneth Ofgang , Staff Writer/Appellate Courts


Police who entered a probationer’s residence without knocking and announcing themselves performed an unreasonable search and seizure, requiring that the woman’s conviction of possessing methamphetamine for sale be thrown out, the Fourth District Court of Appeal ruled Friday.

It was the second time the that a divided panel in Div. One had reversed the conviction of Mildred Murphy, sentenced to three years’ probation, including 210 days in custody, after she pled guilty, subject to her right of appeal. The attorney general had asked for review by the state Supreme Court, which sent the case back in January for reconsideration based on a new U.S. Supreme Court ruling.

The court in United States v. Banks (2003) 124 S.Ct. 521 said that officers executing a warrant acted reasonably by waiting 15 to 20 seconds after announcing their presence before they forcibly entered a residence. The officers had reason to believe that the suspect, who said he was in the shower and didn’t hear the officers until they crashed through his door, would dispose of evidence if they waited longer, the justices reasoned.

But Justice Cynthia Aaron, writing for the San Diego-based appeals court, said the Banks scenario was different than Murphy’s case, in which the officers never knocked, announced their presence by yelling at a workman outside the house, and then waited only five to seven seconds before forcing their way in.

No Warrant

There was no warrant to search Murphy’s house, but she had agreed to waive her Fourth Amendment rights as a condition of probation for a previous drug offense.

California cases hold that “knock notice” rules apply to the search of a residence pursuant to a probation condition, as well as pursuant to a warrant. Penal Code Sec. 1531 permits an officer to enter forcibly in such circumstances “if, after notice of his authority and purpose, he is refused admittance.”

Cases hold that the refusal of admittance may be either actual or constructive, and that compliance is excused if there are exigent circumstances which would lead a reasonable officer to believe that evidence might be destroyed, that a suspect might escape, or that the officer’s safety would be placed in danger if notice were given.

In Murphy’s case, the court held a combination preliminary examination/hearing on motion to suppress/probation revocation hearing. A sheriff’s sergeant testified that he was on a surveillance team at Murphy’s residence, that he saw a woman drive away, that he followed and eventually stopped her, and that she admitted having purchased methamphetamine at the house.

The sergeant then returned and he and the others prepared to enter the house. As they moved toward the house, they saw a man outside—he was later identified as Michael Thomaselli, who was apparently there only to fix the fence—identified themselves as sheriff’s deputies, and loudly told Thomaselli to “get on the ground.”

Alert Feared

The sergeant testified that his team entered without knocking because he feared that the yelling at Thomaselli and subsequent barking by a dog in the residence, had alerted the occupants of the house to the police presence and that delay might “compromise” the situation.

The officers went to an area of the house distant from the entrance, where they found Murphy caring for her invalid ex-husband. Murphy waived her Miranda rights and admitted that there was methamphetamine in the house, leading the police to its location.

Thomaselli testified that the police accosted him at gunpoint. Murphy said she heard someone in the house calling her name, opened the bedroom door, and saw an officer in the hallway pointing a gun at her face.

At the conclusion of the hearing, the judge ruled that the police complied with knock-notice requirements by yelling at Thomaselli and then waiting several seconds before entering. There was, the judge said, “plenty of time once that notification is made for someone to come to the door and find out what the heck is going on.”

Murphy was bound over for trial and her probation was revoked. After her Penal Code Sec. 995 motion to set aside the information was denied, she entered into a plea bargain.

Aaron, writing for the Court of Appeal, said that none of the justifications cited in Banks could be applied to Murphy’s case.

“Even assuming the officers shouting at Thomaselli is equivalent to knocking and announcing their intent, the five to seven seconds that passed between the officers’ shouting at Thomaselli and their entry was not sufficient time, under Banks, for an exigency to have ripened based on a reasonable suspicion that evidence would imminently be destroyed,” the justice wrote. “The Banks court stated that a period of 15-20 seconds presented a ‘close call.’...Five to seven seconds does not.”

Aaron went on to reject the contention that the drugs found in the search could have been admitted into evidence under the inevitable discovery exception to the exclusionary rule, since the officers were entitled to search Murphy’s home based on her status as a probationer.

“The essence of the People’s argument is that a per se inevitable discovery exception applies to any probationary search in which a knock-notice violation occurs.”

While some courts have accepted that reasoning, Aaron conceded, she called it “unpersuasive.”

She declared:

“We are unwilling to assume that the officers in this case would have conducted the search of Murphy’s residence lawfully, if they had not in fact conducted it unlawfully.”

Justice Terry O’Rourke concurred in Aaron’s opinion.

Justice Patricia Benke dissented, as she had previously. Benke argued that the officers substantially complied with the announcement requirement, that exigent circumstances existed, and that the inevitable discovery doctrine applied.

The majority, she wrote, was misapplying Banks.

“In Banks [the exigency] happened to mature after the officers knocked. Here, the exigency is claimed to have arisen at the time of the encounter with Thomaselli, not at the door. The question before us is therefore whether considering the experience of the officers, the nature of the crimes involved, the location of events and the circumstances rapidly unfolding around them, these officers were justified in concluding their drug investigation was somehow compromised and immediate entry was necessary following their encounter with Thomaselli.”

Benke concluded that it was.

Based on their knowledge of Murphy’s past activities, their knowledge that she had sole methamphetamine to the woman who was the subject of the traffic stop, their observation of what appeared to be another drug transaction in the driveway, the officers “fully understood they were walking toward a residence where drug transactions were then taking place.”

Once they confronted Thomaselli, whose identity and purpose they did not know at the time, and who had something clenched in his fist—it turned out to be some screws—the officers had all the information they needed to conclude that immediate entry was required, the justice wrote. “...I am comfortable concluding the officers justifiably believed they were in a potentially volatile situation which went beyond generalized fear or mere suspicion of drug trafficking,” Benke said.


Copyright 2004, Metropolitan News Company