People v. Hoxter

• Decision Date: 30 September 1999
• Docket Number: No. G022678.,G022678.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Lynn HOXTER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

89 Cal.Rptr.2d 259

75 Cal.App.4th 406

The PEOPLE, Plaintiff and Respondent, v. Donald Lynn HOXTER, Defendant and Appellant.

No. G022678.

Court of Appeal, Fourth District, Division 3.

September 30, 1999.

As Modified October 12, 1999.

Rehearing Denied November 1, 1999.

Lathrop & Villa and Stephen M. Lathrop, under appointment by the Court of Appeal, Redondo Beach, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Bradley A. Weinreb

and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

Following his unsuccessful motion to suppress evidence, Donald Lynn Hoxter pled guilty to possession of methamphetamine for sale and admitted a prior conviction of a serious felony within the meaning of the Three Strikes law. He contends the trial court erred in denying his motion because the police improperly relied on the consent of his 16-year-old daughter when they entered his home. He claims their subsequent search of his bedroom, though performed with his permission, was tainted fruit of the unlawful entry. We find to the contrary: After knocking, officers entered the residence legally, in response to his daughter's invitation. Their actions were not only reasonable but legal, given the circumstances. We therefore uphold the ruling on the motion to suppress and affirm the judgment.

After Hoxter failed to appear in court to answer charges in an unrelated case, a warrant issued for his arrest. Around 8 o'clock on the evening of September 24, 1996, two Laguna Beach police officers in plain clothes stopped by his home to execute it. As they approached the front door, they met a man about 30 years old and asked if his name was "Don." The man replied "No" but added "Don is inside."¹

One of the officers knocked at the entrance, and Hoxter's 16-year-old daughter, Amy, told her younger sister to open the door. As the younger girl complied, Amy beckoned the men to "Come on in." When one yelled back, "What?" Amy repeated her invitation. Thinking Amy looked 14 to 16, they entered the residence and walked into the living room where Amy was. They made no mention of their purpose; they simply told her they were looking for "Don." Amy pointed to an adjoining bedroom, the door to the bedroom opened, and Hoxter stepped out to see who the visitors were.

After confirming he was Hoxter, they identified themselves as police officers, displayed their badges, and announced they had a warrant for his arrest. As they took him into custody, they observed a portable propane tank and torch, a pipe, and a plastic Baggie containing white powder — all in plain view. They explained to Hoxter the difference between an arrest warrant and a search warrant and requested his consent to search the entire bedroom. When he agreed, they searched and found methamphetamine, a gram scale, and additional drug paraphernalia.

After hearing this evidence, the trial judge denied Hoxter's motion to suppress, explaining, "The motion to suppress is denied based on the fact that it's the [c]ourt's understanding that Penal Code section 844[²] does not apply when the officers have a valid warrant in their possession. And ... based on the evidence received in this hearing ... the officer's rendition ... is accepted."

DISCUSSION

Hoxter claims the consent he provided officers to search his bedroom and the evidence they discovered as a result were both tainted by the officers' improper reliance on his 16-year-old daughter's consent to enter the residence. Specifically, he insists Amy was not old enough to provide permission to enter as a matter of law, and the officers had no reason to believe she had authority to admit them. We do not see it that way. While it appears the trial court's understanding of section 844 was at least partially inaccurate, its explicit adoption of the officers' version of the facts leads us to conclude, as a matter of law, that the officers' entry into the house was reasonable within the meaning of the Fourth Amendment.

We first consider the issue the court based its ruling upon: the applicability of section 844. Contrary to the trial court's understanding, the mere fact a police officer has an arrest warrant in hand does not automatically entitle that officer to enter a suspect's home without providing the knock-notice required by the section. Where its terms are implicated, section 844 applies whether an officer has a warrant or not. (People v. Wader (1993) 5 Cal.4th 610, 632, 20 Cal.Rptr.2d 788, 854 P.2d 80; People v. Jacobs (1987) 43 Cal.3d 472, 478, 233 Cal.Rptr. 323, 729 P.2d 757; People v. Schmel (1975) 54 Cal.App.3d 46, 50, 126 Cal.Rptr. 317.)

According to the statute, if entry into a residence requires a breaking, the officer must knock and announce his or her purpose first. (People v. Bittaker (1989) 48 Cal.3d 1046, 1072, 259 Cal.Rptr. 630, 774 P.2d 659.) Without such a breaking, the knock-notice rule does not apply. (People v. Peterson (1970) 9 Cal.App.3d 627, 631, 88 Cal.Rptr. 597; see also People v. Satz (1998) 61 Cal.App.4th 322, 327, 71 Cal.Rptr.2d 433 [consent obviates the need for compliance with the rule].) However, in the context of section 844, "breaking" is a term of art, and neither physical violence nor actual damage is necessarily required. (People v. Superior Court (1970) 5 Cal. App.3d 109, 113, 84 Cal.Rptr. 778.) "Even a peaceable entry may be deemed a `breaking' if the entry undermines the statutory purposes of safeguarding the privacy of citizens in their homes and preventing unnecessary violent confrontations between startled householders and arresting officers. [Citations.]" (People v. Jacobs, supra, 43 Cal.3d at p. 480, 233 Cal. Rptr. 323, 729 P.2d 757; see also Duke v. Superior Court (1969) 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 461 P.2d 628.)

The term covers, "[a]t the very least, ... unannounced entries that would be considered breaking as that term is used in defining common law burglary. [Citations.] As so defined, no more is needed `than the opening of a door or window, even if not locked ... or ... latched.'" (People v. Rosales (1968) 68 Cal.2d 299, 303, 66 Cal.Rptr. 1, 437 P.2d 489; accord Sabbath v. United States (1968) 391 U.S. 585, 590, 88 S.Ct. 1755, 20 L.Ed.2d 828.) It also "encompasses the opening of an unlocked screen door [citations], and entry through an open door `at nighttime when [the occupant apparently is asleep.' [Citation.]" (People v. Superior Court, supra, 5 Cal.App.3d at p. 113, 84 Cal.Rptr. 778.) And unless an occupant of the residence opens the door, knock-notice must be given even if the door has been left ajar. (People v. Bradley (1969) 1 Cal.3d 80, 87-88, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Miller (1999) 69 Cal. App.4th 190, 201, 81 Cal.Rptr.2d 410; People v. Zabelle (1996) 50 Cal.App.4th 1282, 1286, 58 Cal.Rptr.2d 105.)

Where a breaking occurs and, as a consequence, knock-notice requirements apply, an officer's failure to comply with the statute in whole or in part can be excused under certain circumstances (e.g., where knock-notice would place lives at serious risk, where police have articulable reasons for believing evidence is about to be destroyed, or where officers have otherwise substantially complied with its provisions). (Richards v. Wisconsin (1997) 520 U.S. 385, 394-395, 117 S.Ct. 1416, 137 L.Ed.2d 615 [requiring police have a reasonable suspicion that knock-notice would inhibit an effective investigation, be dangerous or futile]; Wilson v. Arkansas (1995) 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976; People v. Bradley, supra, 1 Cal.3d at p. 88, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Boone (1969) 2 Cal. App.3d 503, 505-506, 82 Cal.Rptr. 566.) But it is now settled that whether knock-notice is provided is part of the reasonableness inquiry required by the Fourth Amendment. (Richards v. Wisconsin, supra, 520 U.S. at p. 387, 117 S.Ct. 1416; Wilson v. Arkansas, supra, 514 U.S. at pp. 934-936, 115 S.Ct. 1914; accord People v. Mays (1998) 67 Cal.App.4th 969, 973, 79 Cal.Rptr.2d 519; People v. Zabelle, supra, 50 Cal.App.4th at p. 1286, 58 Cal.Rptr.2d 105.)

In entering Hoxter's home, of course, the officers were not required so much as to touch the door after knocking on it. It was opened for them, and they were invited in. Ordinarily, that would have been enough to demonstrate no "breaking," as contemplated by the statute, occurred. But it is not quite that simple here. The door was opened at the direction of a minor. And unless she had actual or apparent authority to authorize the officers' entry, her consent was not valid, and the officers' entry was accomplished by a breaking within the meaning of section 844. (People v. Jacobs, supra, 43 Cal.3d at pp. 480-481, 233 Cal.Rptr. 323, 729 P.2d 757.)

In Jacobs, a slim majority of our Supreme Court held that an 11-year-old baby-sitter was insufficiently mature to grant consent for uniformed officers to enter the home despite the fact she had been left in charge and lived at the residence. However, even the Jacobs majority recognized that "[a]s a child advances in age she acquires greater discretion to admit visitors on her own authority." (People v. Jacobs, supra, 43 Cal.3d at p. 483, 233 Cal.Rptr. 323, 729 P.2d 757.)

As we see it, sufficient discretion certainly exists by the time a child reaches the age of Hoxter's daughter.³ There is a significant difference between a child of 11 and a young woman who, at 16, is less than 2 short years away from voting, marrying without parental consent (see Fam.Code, §§ 301, 302) and under California case law, already able to obtain an abortion. (Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 356-359, 66 Cal.Rptr.2d 210, 940 P.2d 797.)

We are convinced that one of the characteristics of the end of the 20th century is that many California 16-year-olds are mature...