People v. Murphy

• Citation: 118 Cal.App.4th 821,13 Cal.Rptr.3d 269
• Decision Date: 14 May 2004
• Docket Number: No. D040040.,D040040.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mildred MURPHY, Defendant and Appellant.

13 Cal.Rptr.3d 269

118 Cal.App.4th 821

The PEOPLE, Plaintiff and Respondent, v. Mildred MURPHY, Defendant and Appellant.

No. D040040.

Court of Appeal, Fourth District, Division 1.

May 14, 2004.

Review Granted July 21, 2004.

Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Quisteen S. Shum and Heather F. Wells, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I. INTRODUCTION

Defendant Mildred Murphy appeals the denial of her motion to suppress evidence (Pen.Code,¹ § 1538.5, subd. (m)) after having pled guilty to possession of methamphetamine for sale (Health & Saf.Code, § 11378). Murphy contends that the police, in conducting a probation search of her house, failed to follow knock-notice requirements embodied in California law and, in so doing, violated the Fourth Amendment to the United States Constitution. We conclude that the search violated California knock-notice requirements and the Fourth Amendment, and that the evidence seized during the search must be suppressed.

II. FACTUAL AND PROCEDURAL BACKGROUND²

At approximately 12:45 p.m. on November 7, 2001, following a citizen's complaint, Detective Alberto Santana of the San Diego County Sheriff's Department Street Narcotics Team (team) observed a woman leave Murphy's residence, get into a car and drive away. Santana suspected a drug transaction had taken place. He followed the car and stopped it. The woman admitted she had obtained methamphetamine from Murphy. Santana decided to conduct a probation search of Murphy's residence.³ While Detective John Marlow was conducting surveillance of the residence, Santana developed an operational plan for the search. Santana was familiar with the layout of the house because he had had previous contact with Murphy. Because Santana had observed people coming out of Murphy's converted bedroom in the garage, he decided the search team should enter through the garage.

During the surveillance, Marlow observed Murphy greet a Hispanic male in front of her house. Murphy and the man walked around the side of the house and reappeared a few minutes later. It appeared to Marlow that Murphy and the man were exchanging something. Shortly thereafter, Santana and several other members of the team arrived at Murphy's residence. The team members were all wearing plain clothes, but also had on black bulletproof vests with the word "Sheriffs" on them, and hats marked with the words "Sheriff's Narcotics." Marlow also observed a second, "totally separate person," a white male, near the garage of Murphy's residence. After Santana and the other members of the search team arrived, Marlow motioned to his partners on the team to alert them to this man's presence.

Santana and the other officers approached the white male, who was later identified as Michael Thomaselli. At the time the officers approached him, Thomaselli was located around the corner of the garage. Santana noticed that Thomaselli's hand was clenched. Santana pointed a gun at Thomaselli and "[i]n a loud voice . . . [a]lmost yelling," said to him, "Sheriff's Department. Probation search. Get on the ground." The other members of the team were yelling, "Sheriff's Department," and they all had their guns drawn. It was later determined that Thomaselli was repairing a fence for Murphy and that he was holding some screws in his hand. At no time did the officers observe any interaction between Murphy and Thomaselli.

As the officers confronted Thomaselli, Santana heard a dog barking loudly from inside Murphy's house. Approximately five to seven seconds after the officers confronted Thomaselli, Santana and other members of the team entered the residence, without knocking. Santana said he did not knock because he feared that "anyone in the residence or in the bedroom would have heard us" yelling at Thomaselli. Santana testified that "seeing the sliding glass window was opened and a dog was barking, we continued in." Santana believed the team was in a "compromise" situation and explained that they entered the house without knocking because they feared persons in the residence might arm themselves, destroy evidence, or flee. Santana testified that he and "about four or five members of his team" entered the house as soon as "everybody was in line ready to go." All of the officers entered the house with their guns drawn.

Upon searching the residence, the law enforcement officers found Murphy at the opposite end of the house from where they had entered, in a bedroom with her bedridden ex-husband. Murphy was read her Miranda⁴ rights and waived them. Murphy admitted having sold methamphetamine and showed the officers the location of a scale and six baggies that contained methamphetamine. The officers also found several "pay and owe" sheets in Murphy's house.

Thomaselli testified that when he encountered the officers, they ordered him to the ground, at gunpoint. After he was on the ground, the officers asked him whether Murphy was inside the house, and he told them she was. Thomaselli did not see them enter the house.

Murphy testified on her own behalf. She was in a back bedroom with the door shut, caring for her invalid ex-husband when the officers entered her residence. She heard someone calling her name and was disturbed because she did not know who it was. Prior to hearing her name called, she did not believe she had heard anyone say anything about police or probation. After she heard her name called, Murphy opened the bedroom door and found one of the officers standing in the doorway, pointing a gun at her face. He told Murphy to put up her hands.

On November 9, 2001, Murphy was charged with possession of methamphetamine for sale (Health & Saf.Code, § 11378). Murphy pled not guilty. She filed a motion to suppress evidence, pursuant to section 1538. 5, in which she claimed that in conducting the search, the officers had violated California knock-notice requirements and the Fourth Amendment. The People filed an opposition. The preliminary examination hearing served also as an evidentiary hearing for the motion to suppress and the probation revocation.

With regard to the motion to suppress, the court found there were no exigent circumstances that would excuse the officers' duty to comply with knock-notice requirements. The court found that at the time the officers entered Murphy's residence, they had no reason to believe drugs were being flushed or otherwise destroyed, or that anyone in the house was arming himself. In addition, they had no reason to believe Murphy was likely to be armed, and they could see she was not attempting to flee.

However, the court determined that the officers' shouting at Thomaselli constituted notice to the occupants of Murphy's residence of the impending search sufficient to satisfy knock-notice requirements. The court observed that the officers' entry occurred "at least five to seven seconds [after they shouted at Thomaselli], I think it was probably longer, certainly from Mr. Thomaselli's testimony." The court opined that this was "plenty of time once that notification is made for someone to come to the door and find out what the heck is going on." The court denied the motion to suppress on the ground that the officers had substantially complied with knock-notice requirements. The court also found the evidence was sufficient to hold Murphy to answer to the methamphetamine charge and revoked her probation.

Murphy filed a motion to set aside the information, pursuant to section 995, on the ground that the law enforcement officers had violated knock-notice requirements. The People filed an opposition. The trial court denied the motion. Murphy then pled guilty to the charge of possession of methamphetamine for sale. The trial court placed Murphy on probation for a period of three years on the condition that she serve 210 days in custody, and fined her $550. The court later determined that Murphy was eligible for electronic surveillance and revised the 210-day commitment order accordingly. Murphy filed a timely appeal.

On October 6, 2003, this court filed its opinion reversing the judgment. The court concluded that the evidence seized during the search of Murphy's home was obtained in violation of California's knock-notice requirements and the Fourth Amendment, and must therefore be suppressed. On January 22, 2004, the California Supreme Court granted the People's petition for review and directed this court to vacate the opinion and reconsider our decision in light of United States v. Banks (2003) 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (Banks), which was decided after we filed our opinion in this case.

We vacated our opinion and ordered the parties to file supplemental briefs addressing the impact, if any, of the United States Supreme Court's decision in Banks on the appellate issues in this case.

We have reconsidered our decision in this case in light of Banks. We conclude that the search of Murphy's residence violated California's knock-notice requirements and the Fourth Amendment, and that the evidence seized during the search must be suppressed.

III. DISCUSSION

"In reviewing a ruling on a motion to suppress evidence, we defer to the trial court's findings of fact, whether express or implied, if those findings are supported by substantial evidence. We independently determine the relevant legal principles and apply those principles in evaluating the reasonableness of the search based on the facts as found by the trial court." (People v. Mays (1998) 67 Cal.App.4th 969, 972, 79 Cal.Rptr.2d 519.)

A. The Evidence Was Obtained in Violation of Knock-Notice Requirements

1. Knock-Notice Requirements Apply to Probation Searches

Section 1531 provides that in executing a search warrant, "[t]he officer may break open any outer or inner door or window of a house, or...