People v. Hoag, No. C031031.

CourtCalifornia Court of Appeals
Writing for the CourtHull
Citation83 Cal.App.4th 1198,100 Cal.Rptr.2d 556
PartiesThe PEOPLE, Plaintiff and Respondent, v. Charles Edward HOAG, Defendant and Appellant.
Decision Date28 September 2000
Docket NumberNo. C031031.
100 Cal.Rptr.2d 556
83 Cal.App.4th 1198
The PEOPLE, Plaintiff and Respondent,
Charles Edward HOAG, Defendant and Appellant.
No. C031031.
Court of Appeal, Third District.
September 28, 2000.
Review Denied January 17, 2001.*

[100 Cal.Rptr.2d 557]

[83 Cal.App.4th 1201]

Leupp & Wachob, Thomas A. Leupp, Auburn, and Jeffrey Rue, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.


In this matter we conclude a party who is absent at the time of a search of his

100 Cal.Rptr.2d 558

home nevertheless has a sufficient privacy interest in the premises to assert a knocknotice violation. However, we also conclude that, under the circumstances of this case, the police officers executing a search warrant on defendant's home substantially complied with the knock-notice requirements of Penal Code section 1531 despite failing to wait a sufficient time before entering to permit any occupant therein to respond. Consequently, the search was not unreasonable within the meaning of the Fourth Amendment.

Following denial of his suppression motion, defendant pleaded guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and was placed on three years' probation. He appeals challenging only the denial of his suppression motion. (Pen.Code, § 1538.5, subd. (m).) We affirm.

Facts and Procedural History1

Defendant lived in Rocklin, California, with his fiancee, Elizabeth Cunnagin, and their five-year-old daughter. On the evening of December 8,1997, Cunnagin had to study for finals in her nursing classes and defendant took the couple's child to a baby sitter. Defendant left around 7:00 or 7:15 p.m. and was expected to return in half an hour.

83 Cal.App.4th 1202

While defendant was away, five Placer County Sheriffs Deputies served a search warrant on the residence. They opened a wooden gate and walked up to the front door. A deputy knocked on the door and announced "Sheriffs Department, search warrant, we demand entry." Hearing no response, he knocked and gave notice again. There was still no response. Another deputy tried the door handle and, finding the door unlocked, opened it slightly. The deputies entered together. They estimated 15 to 20 seconds had elapsed between their first knock and their entry.

The deputies found Cunnagin sitting on or getting up from a couch in the living room. She was surrounded by books and papers and appeared to be doing homework. According to the officers, music was playing, but not loudly; it was not audible from outside.2 There was a dog present, probably in the garage, which the deputies put in a bathroom so they could conduct the search without distraction.

Cunnagin testified she did not hear the deputies open the gate to the residence and did not hear a knock or announcement before the deputies entered. The first thing she heard was the click of her front doorknob. The deputies seized, handcuffed, and questioned Cunnagin, but did not arrest her. No contraband was found in the house, but marijuana was found in the garage.

Defendant returned home and opened his garage door to find three deputies inside conducting a search. He was placed in custody and thereafter charged with possession of marijuana for sale. (Health & Saf.Code, § 11359.)

Defendant moved to suppress the evidence obtained in the search of his residence on the ground the deputies violated Penal Code section 1531, rendering the subsequent search "unreasonable" under the Fourth Amendment to the United States Constitution. The trial court denied the motion, concluding defendant's absence from the residence deprived him of the right to challenge the alleged knocknotice violation. At defendant's request, the court went on to rule that 15 to 20 seconds was not long enough for the deputies to have waited to satisfy the knocknotice requirement under the circumstances presented.

Defendant thereafter pleaded guilty to the charged offense and was placed on three years' probation.

100 Cal.Rptr.2d 559
83 Cal.App.4th 1203
I Discussion
Defendant's Right to Challenge the Knock-notice Violation

The United States Supreme Court has declared as a matter of federal constitutional law: "[T]he common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry." (Wilson v. Arkansas (1995) 514 U.S. 927, 930, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, 980 (Wilson).) Long before Wilson, the California courts had applied a Fourth Amendment standard to knock-notice questions. (Duke v. Superior Court (1969) 1 Cal.3d 314, 325, 82 Cal.Rptr. 348, 461 P.2d 628; Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Gastelo (1967) 67 Cal.2d 586, 588-589, 63 Cal.Rptr. 10, 432 P.2d 706; see People v. Rosales (1968) 68 Cal.2d 299, 304-305, 66 Cal.Rptr. 1, 437 P.2d 489 [Pen.Code, § 844 (arrest warrants) ].)

Under the Fourth Amendment, a person may challenge the legality of a search or seizure only if he can show a personal interest in the privacy of the place searched or the item seized; he may not vicariously challenge the alleged violation of another's interests. (Rakas v. Illinois (1978) 439 U.S. 128, 132-138, 99 S.Ct. 421, 424-428, 58 L.Ed.2d 387, 393-398 (Rakas).) California follows the Rakas rule. (Cal. Const., art. I, § 28(d); In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744.)

In assessing a defendant's right to challenge a particular Fourth Amendment violation, it is useful to consider the interests sought to be protected by the rule at issue. California courts have identified the following rationale for knock-notice: "`(1) The protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations]; and (4) the protection of police who might be injured by a startled and fearful householder.'" (People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal.Rptr. 835, 511 P.2d 1187; People v. Aguilar (1996) 48 Cal.App.4th 632, 637, 55 Cal.Rptr.2d 716.) The United States Supreme Court in Wilson stressed an additional factor not spelled out in the California rationale but lying at the root of the knock-notice rule in English common law: the law's abhorrence of the unnecessary "`destruction or breaking of

83 Cal.App.4th 1204

any house....'" (Wilson, supra, 514 U.S. at p. 931, 115 S.Ct. at p. 1916, 131 L.Ed.2d at p. 981.)

We are aware of no post-Wilson California decisions which have considered an absent party's right to challenge a knock-notice violation under the Fourth Amendment. However, at least three sister-state decisions have considered the issue. Of these, Mazepink v. State (1999) 336 Ark. 171, 987 S.W.2d 648 (Mazepink) is the most persuasive.3 In Mazepink, the Arkansas Supreme Court held squarely in reliance on Wilsonand the United States Supreme Court's prior definition of "legitimate expectation of privacy" (Rakas v.

100 Cal.Rptr.2d 560

Illinois, supra, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387), that a defendant who was absent when the police searched his residence nevertheless had the requisite privacy interest to raise a knock-notice claim. The Mazepink court first quoted the Rakas discussion of what constitutes a legitimate expectation of privacy: "`Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, [citation] and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.'" (Mazepink, supra, 987 S.W.2d at p. 651, quoting Rakas, supra, 439 U.S. at p. 143, fn. 12, 99 S.Ct. at p. 430, fn. 12, 58 L.Ed.2d at p. 401, fn. 12.) The court then reasoned that in light of Rakas the defendant had a legitimate expectation of privacy in his residence regardless of whether he was there when the police arrived: "It seems irrelevant under these circumstances that Mazepink was not actually present at the time of entry; his standing to seek exclusion of the evidence obtained after the search is grounded in his right to exclude others and to be free from illegal police invasion of his privacy in his residence. Furthermore, Mazepink's legitimate expectation of privacy in his residence encompasses the right to expect not only privacy for himself, but for his family and invitees, including [the persons who were present at the time of

83 Cal.App.4th 1205

entry]." (Mazepink, supra, 987 S.W.2d at p. 652.) The court also noted that on the facts of the case the "destruction of property" factor described in Wilson gave the defendant an additional claim to standing because the police had forced entry into his house, damaging the property. (Mazepink, supra, 987 S.W.2d at pp. 651-652.)

Here, as in Mazepink, defendant had a legitimate expectation of privacy "grounded in his right to exclude others[,] to be free of illegal police invasion of his privacy in his residence ... [and] to expect not only privacy for himself, but for his family and invitees...." (Mazepink, supra, 987 S.W.2d at p. 652; see also Peterson, supra, 9 Cal.3d at p. 723, 108 Cal.Rptr. 835, 511 P.2d 1187 [Purposes of knock-notice include "`the protection of innocent persons who may also be present on the premises where an arrest is made...'"]..) Defendant had a sufficient personal interest in the safety of the mother of...

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