People v. Neer

• Decision Date: 24 February 1986
• Citation: 223 Cal.Rptr. 555,177 Cal.App.3d 991
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dana Leon NEER, Defendant and Appellant. G001782.

Page 555

223 Cal.Rptr. 555

177 Cal.App.3d 991

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dana Leon NEER, Defendant and Appellant.

G001782.

Court of Appeal, Fourth District, Division 3, California.

Feb. 24, 1986.

As Modified March 7, 1986.

Review Denied May 8, 1986.

Fred W. Anderson and William J. Sarrus, Tustin, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Jay M. Bloom and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

SONENSHINE, Associate Justice.

Dana Neer appeals (Pen.Code, § 1538.5, subd. (m)) ¹ after pleading guilty to several controlled substance violations. He claims his suppression motion should have been granted because: (1) the warrant issued to search his home was not supported by probable cause; (2) the search pursuant to the defective warrant cannot be salvaged by the good faith exception to the exclusionary rule (United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677); and (3) the warrant was executed in violation of the knock-notice requirements of section 1531. We agree with the third contention and conclude the section 1531 violation requires exclusion of the evidence seized in the subsequent search. Consequently, we do not address the first two issues raised by Neer.

I

On October 10, 1983, police officers obtained a search warrant for Neer's home. At about 8:25 that evening, Detective Klein and three other officers arrived to serve the warrant. The porch light was on. Klein, wearing a police raid jacket and hat, approached the house with Officer Stedman. The officers detained Neer, who was working in the front yard, but were then unaware of his identity. Stedman shouted, "We're the police department, don't move ... we have a search warrant."

The front door was open and lights were on inside. Klein approached until he reached the closed screen door. He could see a woman with a child sitting on a couch and a man standing in the kitchen area. Klein identified himself as a police officer and stated he had a search warrant. He "opened the door immediately" and went in. Klein testified he entered because he believed the occupants had heard both announcements and feared they would flee, destroy contraband or arm themselves.

II

Klein's entry violated section 1531. ² First, the facts did not support a reasonable belief exigent circumstances permitted him to force entry. Second, he could not reasonably believe he had been refused entry by the occupants.

The fact Klein faced a screen door through which he could see did not excuse compliance with section 1531. (People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal.Rptr. 835, 511 P.2d 1187.) He sought to justify his precipitous entry by claiming there were exigent circumstances--the occupants would flee, destroy contraband or arm themselves.

Compliance with the requirements of section 1531 is excused if specific facts known to the officer before his or her entry are sufficient to support a good faith belief compliance will increase his or her peril, frustrate the arrest, or permit the destruction of evidence. (People v. Dumas (1973) 9 Cal.3d 871, 877, 109 Cal.Rptr. 304, 512 P.2d 1208; Duke v. Superior Court (1969) 1 Cal.3d 314, 323-324, 82 Cal.Rptr. 348, 461 P.2d 628; People v. Flores (1982) 128 Cal.App.3d 512, 521, 180 Cal.Rptr. 368.) But nothing Klein knew permitted an objectively reasonable belief exigent circumstances existed. (See ibid.) A generalized belief based on the fact this was a narcotics investigation is insufficient. (See People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706; see also People v. Benjamin (1969) 71 Cal.2d 296, 299, 78 Cal.Rptr. 510, 455 P.2d 438.)

Klein's testimony can also fairly be read as stating a belief he had been refused entry. But "[s]ection 1531 permits an officer executing a search warrant to break into the premises only if he [or she] is refused admission after announcing 'his [or her] authority and purpose.' Even where the police duly announce their identity and purpose, forcible entry is not permitted under the statute if the occupants of the premises are not first given an opportunity to surrender the premises voluntarily. [Citation.]" (Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 937, 188 Cal.Rptr. 351.) ³

Implied refusal exists when there is unreasonable delay in responding to the officers' announcement under the circumstances of the case. (See People v. Peterson, supra, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187; Jeter v. Superior Court, supra, 138 Cal.App.3d 934, 937, 188 Cal.Rptr. 351; People v. Gallo (1981) 127 Cal.App.3d 828, 179 Cal.Rptr. 662.) But here, as noted above, there were no specific facts, such as shouting or running, to support an objectively reasonable belief the occupants had refused entry. (See People v. Dumas, supra, 9 Cal.3d 871, 877, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Flores, supra, 128 Cal.App.3d 512, 521, 180 Cal.Rptr. 368.) Klein could not have reasonably believed there had been an implied refusal. He opened the screen door immediately after making the announcement on the porch.

And the record contains no evidence of the amount of time which elapsed between the first and second announcement. There is no convenient test for measuring the length of time necessary to support an implied refusal. It has been held silence for twenty seconds is sufficient where it is known someone is within the residence, suggesting no one intends to answer the door. (People v. Elder (1976) 63 Cal.App.3d 731, 739, 134 Cal.Rptr. 212, disapproved on other grounds in People v. Chapman (1984) 36 Cal.3d 98, 111, fn. 7, 201 Cal.Rptr. 628, 679 P.2d 62.) Thirty seconds has been held sufficient also. (People v. Gallo, supra, 127 Cal.App.3d 828, 179 Cal.Rptr. 662.) By contrast, six seconds (People v. Abdon (1972) 30 Cal.App.3d 972, 106 Cal.Rptr. 879); fifteen seconds (Greven v. Superior Court, supra, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432); thirty seconds (Duke v. Superior Court, supra, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628); and forty-five seconds (People v. Norton (1970) 5 Cal.App.3d 955, 86 Cal.Rptr. 40) have been held inadequate under the circumstances of those cases.

Customarily, we defer to the trial court's determination in such factually grounded matters. (See People v. Pacheco (1972) 27 Cal.App.3d 70, 78, 103 Cal.Rptr. 583, citing People v. Perales (1970) 4 Cal.App.3d 773, 780, 84 Cal.Rptr. 604; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.) However, the record in this case simply does not support a finding there was either an exigency or implied refusal permitting Klein's forced entry. There was no suspicious activity by the occupants and we do not know how much time elapsed between the first announcement and the entry. Neer's detention in the front yard cannot suffice to excuse compliance with the statute. Section 1531 was violated.

III

The more difficult question is whether, after the enactment of California Constitution article I, section 28, subdivision (d) by Proposition 8 in June 1982, a section 1531 violation still calls for the exclusion of the evidence obtained. We conclude it does.

Jeter v. Superior Court, supra, 138 Cal.App.3d 934, 938, 188 Cal.Rptr. 351, held exclusion is still required: "In Duke v. Superior Court (1969) 1 Cal.3d 314, 325 [82 Cal.Rptr. 348, 461 P.2d 628], the California Supreme Court makes clear that an entry effected in violation of the knock and notice requirements of section 1531 renders any subsequent search and seizure unreasonable within the meaning of the Fourth Amendment of the Constitution of the United States and thus requires the exclusion of the evidence obtained under Mapp v. Ohio (1961) 367 U.S. 643, 660 [81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081]. Since the court rested its holding in Duke not on the California Constitution but solely upon the Fourth Amendment to the United States Constitution, the holding is not affected by article I, section 28, subdivision (d) recently added to the California Constitution. That addition, with exceptions not relevant here, provides that 'relevant evidence shall not be excluded in any criminal proceeding ....' To pass muster under the supremacy clause of the United States Constitution this provision must be interpreted as not attempting to modify the binding effect of federal constitutional decisions affecting the admissibility of evidence such as Mapp v. Ohio, supra, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081]. Article I, section 28, subdivision (d) does not purport to repudiate Mapp." (See also People v. Gastelo, supra, 67 Cal.2d 586, 588, 63 Cal.Rptr. 10, 432 P.2d 706.)

Jeter was filed before our Supreme Court announced the effect of article I section 28, subdivision (d) in In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744. Does Lance W. undercut the holding of Jeter concerning the continuing vitality of the exclusionary rule in this context? Unlike our dissenting colleague, we conclude it does not.

Lance W. dealt with different factual and legal issues. The court addressed the continuing vitality of California's vicarious exclusionary rule. Prior to Proposition 8, a California defendant could move to exclude evidence seized in violation of the rights of another. The defendant had standing under the state Constitution to contest violations of the search and seizure provisions of both constitutions. But for purposes of the Fourth Amendment, the United States Supreme Court had drawn the opposite conclusion--exclusion of evidence resulted only if the personal privacy rights of the defendant were invaded. (See, e.g., Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.)

Thus, the question addressed in Lance W. was whether "this new constitutional provision ... mandate[s] the exclusion of evidence obtained in violation...