Tuesday, October 7, 2003
Page 1
Drug Evidence in Probation Search Is Inadmissable, C.A. Rules
Court Rejects Argument Discovery Was Inevitable Where “Knock-Notice” Requirements Not Complied With
By DAVID WATSON, Staff Writer
Discovery of drugs in a search of a probationer’s residence was not inevitable where officers failed to comply with “knock-notice” requirements of the federal Constitution and California case law, the Fourth District Court of Appeal ruled yesterday.
The court’s Div. One reversed the methamphetamine possession conviction of Mildred Murphy. San Diego sheriff’s deputies found drugs in Murphy’s residence when they conducted a probation search after observing her apparently selling drugs outside.
In approaching the house, they encountered Michael Thomaselli and became involved in a loud confrontation with him, shouting to him that they were conducting a probation search and ordering him to the ground. Fearing the noise had alerted the occupants of the home to their presence, they then entered without knocking.
San Diego Superior Court Judge Larrie R. Brainard rejected the prosecution’s contention that exigent circumstances justified entry without compliance, but ruled the officers had substantially complied with knock-notice requirements, since the shouting must have let the occupants know a search was imminent.
He rejected Murphy’s suppression motion, and she then pled guilty.
Substantial Compliance
Writing for herself and Justice Terry B. O’Rourke, Justice Cynthia Aaron said Brainard was right about the exigent circumstances but wrong on the issue of substantial compliance.
”In this case, there was no attempt on the part of the law enforcement officers to comply with knock-notice requirements, the elements of the requirements were not satisfied, and the purposes of the requirements were not met,” Aaron wrote. “Thus, it is clear there was not substantial compliance with knock-notice requirements.”
Even if shouting at Thomaselli provided actual notice to Murphy of the impending search, that was not the deputies’ intent, Aaron said.
”Rather...the officers in this case intentionally entered without knocking and without being refused admittance because they believed there was a possibility the people in the house had +inadvertently+ been given notice of the officers’ presence, and that this excused the officers from complying with knock-notice requirements,” she declared.
Evidence introduced at the suppression hearing suggested the officers entered only five to seven seconds after the confrontation, she noted, indicating that they did not give the occupants of the home an opportunity to grant or refuse them entry.
Exclusionary Rule
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 People argue that even if the law enforcement officers in this case failed to comply with knock-notice requirements, the evidence seized would inevitably have been discovered, based on Murphy’s Fourth Amendment waiver,” Aaron said, adding: “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 Patricia Benke dissented, arguing that her colleagues were wrong on each of the issues addressed.
Exigent circumstances probably existed, but in any case were not required for the officers to enter without knocking, Benke said, citing Richards v. Wisconsin (1997) 520 U.S. 385 and People v. Flores (1982) 128 Cal.App.3d 512—the latter, she noted, a ruling expressly disapproved by the majority.
Richards and Flores mandate use of a “reasonable suspicion” standard in drug enforcement cases, Benke argued.
”That standard allows for emergencies where the officers may not have facts from which they can conclude the occupant of a residence is then destroying evidence, preparing to flee or posing a danger but nonetheless requires immediate entry,” she explained.
Instead of applying the reasonable suspicion standard, Benke said, the majority opinion “relegates an abbreviated definition of that important concept to a footnote and then ignores it.”
Benke said her colleagues erred in analyzing the substantial compliance issue by focusing on the officers’ intent.
She declared:
”The majority cites footnote 3 in People v. Hall (1971) 3 Cal.3d 992, 998, for the proposition that a lack of intent to give notice is determinative....
”....Certainly, the court did not mean that in situations where in light of events the occupants of a house are on notice that officers are present to lawfully conduct a search or make an arrest and where the policies of the announcement rule, under the circumstances, are fully served, exclusion is required simply because the officers did not intend to or attempt to give additional notice. Such a rule would not only be illogical but would ignore the policy basis of the announcement rule which is, after all, supposed to guide our analysis.”
The few seconds the officers waited before entering were sufficient, since they knew Murphy was not asleep and in light of her diminished expectation of privacy as a probationer, Benke said.
Nor, she argued, did the majority get the exclusionary rule issue right.
”I...disagree with my colleagues’ conclusion that application of inevitable discovery in knock-notice violations would eviscerate the knock-notice protections,” she wrote.
The dissenting justice continued:
”Because of appellant’s Fourth Amendment waiver, she was required to allow a search of her residence. Having viewed the drug activity and having made an arrest, it is reasonable to expect the officers were not going away....Sooner or later, they were going to interrogate or arrest appellant, and it is reasonable to assume that when confronted with the evidence observed by the officers, appellant would have told them the same information and directed them to the same drugs inside the house. In such a situation the entry is not the sole cause of the discovery of evidence.”
The case is People v. Murphy, 03 S.O.S. 5275.
Copyright 2003, Metropolitan News Company