Tuesday, November 29, 2005
‘No-Knock’ Entry Justified, Divided State Supreme Court Rules
Majority Finds Exigent Circumstances, While Dissent Bemoans Expansion of That Doctrine
By KENNETH OFGANG, Staff Writer/Appellate Courts
Exigent circumstances justified the conduct of narcotics officers who entered a probationer’s residence without knocking and announcing themselves, the California Supreme Court ruled yesterday.
In a 4-3 decision, the justices overturned a contrary ruling of Div. One of the Fourth District Court of Appeal and reinstated Mildred Murphy’s conviction for possession of methamphetamine for sale.
The court held that because officers knew that drugs had been sold on the premises, that the defendant was on probation for a drug offense and was subject to a search condition, and had already announced their presence to someone outside the premises whom they suspected was involved in the drug dealing, the risk that evidence would be destroyed justified the “no-knock” entry.
Justice Ming Chin’s opinion was joined by Chief Justice Ronald M. George and Justices Marvin Baxter and Joyce L. Kennard. Justice Carlos Moreno dissented, arguing that the ruling expanded the exigent-circumstances doctrine beyond the limits recognized in prior cases dealing with the “knock-and-announce” rule, which is codified at Penal Code Sec. 1531.
The statute says that an officer may not enter a residence to execute a search warrant unless “after notice of his authority and purpose he is refused admittance,” and prior cases have applied the rule to probation searches as well.
Moreno’s dissent was joined by Justice Kathryn M. Werdegar and Third District Court of Appeal Justice Coleman Blease, sitting on assignment. Blease is one of a number of justices who are sitting by rotation while the seat of former Justice Janice Rogers Brown, now a federal appellate judge, remains vacant.
San Diego Superior Court Judge Larrie Brainard placed Murphy on three years’ probation, including 210 days of electronic surveillance.
The Court of Appeal had ruled twice that the search was illegal. The Supreme Court sent the case back the first time for reconsideration in light of United States v. Banks (2003) 124 S.Ct. 521.
The court in 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.
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.
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 near 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.”
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 magistrate 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.”
Brainard agreed with the magistrate and denied the defendant’s Penal Code Sec. 995 motion to set aside the information, precipitating a plea bargain. Justice Terry O’Rourke concurred in Aaron’s opinion in favor of reversal, while Justice Patricia Benke argued that the officers substantially complied with the announcement requirement, that exigent circumstances existed, and that the officers would have inevitably discovered the evidence anyway.
The high court yesterday avoided the issue of whether the inevitable discovery doctrine applies in knock-notice cases, noting that the question is now before the U.S. Supreme Court. But it agreed with Benke that exigent circumstances supported the search.
“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.”
Moreno argued in dissent that the majority’s reasoning failed to take into consideration the requirement that the officers be “refused admittance” before entering by force.
“The decisions in which this court has found that exigent circumstances excused compliance with knock-notice requirement have all differed markedly from the present case,” Moreno wrote, citing cases in which suspects ran from the premises, officers heard commotions inside, or residents were believed to be armed.
The case is People v. Murphy, 05 S.O.S. 5247.
Copyright 2005, Metropolitan News Company