Thursday, November 6, 2003
Court of Appeal Rules Absent Defendant Cannot Raise Issue of ‘Knock-Notice’ Warrant Entry Violation
By DAVID WATSON, Staff Writer
A criminal defendant who was not present when police served a search warrant at his home cannot object to use of the evidence discovered on the basis that the officers did not wait long enough before concluding they had been refused entry, the Third District Court of Appeal has ruled.
Since the entry did not damage any of the defendant’s property, his Fourth Amendment rights were not implicated by any violation of “knock-notice” requirements, Justice Ronald Robie said in an opinion certified for publication Tuesday.
The justice acknowledged the court was declining to follow another Third District ruling, People v. Hoag (2000) 83 Cal.App.4th 1198. Robie said that case adopted the “faulty reasoning” of the Arkansas Supreme Court in Mazepink v. State (1999) 336 Ark. 171 [987 S.W.2d 648].
Both Tuesday’s ruling and Hoag involved cases in which police entered within less than 45 seconds after knocking and announcing they had a warrant. In Hoag, Justice Harry E. Hull Jr. reasoned that the absent defendant had “a personal interest in the safety of” his fiancé, who was also the mother of his child, as well as a “right to be protected from the unnecessary destruction of his property.”
The Hoag court, however, affirmed the conviction of the defendant, concluding that the officers “substantially complied” with knock-notice requirements by waiting about 15 to 20 seconds before entering through an unlocked front door. Hull’s lead opinion drew a dissent from Justice Richard M. Simms III, who argued the conviction should have been reversed, and Justice Fred K. Morrison, who concurred, authored a separate opinion.
The Supreme Court declined to take up the decision in 2001, with only Justices Stanley Mosk and Joyce Kennard voting to grant review.
None of the appellate court justices involved in the Hoag case were on the panel that issued Tuesday’s decision, which affirmed the conviction and 35-year prison sentence of Jean Michel Rabaduex. Rabaduex pled guilty to 199 charges related to sexual acts and electronic surveillance of his girlfriend’s daughter after San Joaquin Superior Court Judge Richard Guiliani denied his motion to suppress computers, camera and videotapes seized in the search.
The Tracy police officers who conducted the search said they waited about 30 seconds before using a key provided by the victim to enter the home, in which only Rabaduex’s girlfriend was present. The girlfriend, a nurse who worked nights, was asleep.
The victim had told the officers her mother would likely be sleeping and a sign was posted near the doorbell stating: “Day sleeper. Do not ring doorbell.”
Robie said it was irrelevant whether the 30 second delay satisfied knock-notice requirements, since any violation did not implicate Rabaduex’s constitutional rights.
The justice wrote:
“Assuming for the sake of argument the police did not wait a sufficient amount of time, and their premature entry into the house infringed on the privacy interests protected by the knock-notice rule, those interests were not those of defendant, because he was not home at the time and therefore was in no position either to be embarrassed by a premature entry or to let the police into the house in response to their demand.”
He conceded the court’s conclusion was “at odds with” the outcome in Hoag and that the circumstances of the two cases were “similar.”
“We disagree with the Hoag court that the right to be protected from the unnecessary destruction of property provides a basis for a suppression motion based on a knock-notice violation where no such destruction occurs. To the extent knock-notice requirements protect a homeowner’s right to avoid the unnecessary destruction of his property, that right is not even implicated—let alone infringed—when police entry occurs through an unlocked door (as in Hoag) or, as here, through a locked door opened with a key.”
The justice said he and his panel colleagues, Justices Coleman A. Blease and Rodney Davis, found the Arizona Court of Appeals’ decision in State v. Papineau (1985) 146 Ariz. 272 [705 P.2d 949] more “persuasive” than the Arkansas Supreme Court ruling followed in Hoag.
The Papineau court declared:
“Entry through an unlocked door involves no destruction of property. While those present may have felt their privacy unjustifiably invaded and while the entry may have heightened the risk of violent confrontation, only those present would have rights that would be violated.”
The Arkansas high court in Mazepink erred, Robie said, in relying on Alderman v. United States (1969) 394 U.S. 165, a case involving a listening device placed in a residence.
“That the Fourth Amendment protects a person against the unlawful electronic surveillance of his house, even when he is absent, does not mean, as the Mazepink court concluded, that the person has ‘the right to expect...privacy...for his family and invitees,’...such that a knock-notice violation that occurs in the person’s absence necessarily constitutes a violation of his Fourth Amendment rights,” the justice declared.
The case is People v. Rabaduex, 03 S.O.S. 5687.
Copyright 2003, Metropolitan News Company