People v. Tacy

• Decision Date: 03 November 1987
• Docket Number: No. H002369,H002369
• Citation: 241 Cal.Rptr. 400,195 Cal.App.3d 1402
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Frances Louise TACY and William Douglas Cannon, Defendants and Respondents.

Page 400

241 Cal.Rptr. 400

195 Cal.App.3d 1402

The PEOPLE, Plaintiff and Appellant, v. Frances Louise TACY and William Douglas Cannon, Defendants and Respondents.

No. H002369.

Court of Appeal, Sixth District, California.

Nov. 3, 1987.

Review Denied Jan. 28, 1988.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Martin S. Kaye, Super. Deputy Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., San Francisco, for appellant.

Rose & Arnold Law Corp., Ronald W. Rose, Mark A. Arnold, Carleen R. Arlidge, John M. Wadsworth, Jean O. Harris, San Jose, for respondent Tacy.

William W. Burns, Los Gatos, for respondent Cannon.

BRAUER, Associate Justice.

The People appeal from an order of the superior court which denied their motion to reinstate a criminal complaint. (Pen.Code § 1238, subd. (a)(9).) The sole question confronting us is whether police officers, in executing a search warrant, sufficiently complied with the "knock-notice" requirements of Penal Code section 1531. We conclude that they did, and we therefore reverse.

Penal Code section 1531 reads thus: "The officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance."

I.

In July of 1985 Detective Kevin Kyle was a member of the Specialized Crimes Action Team (S.C.A.T.) in Santa Clara County. That team specialized in enforcement of the narcotics laws. Kyle, in an undercover capacity, became acquainted with one Fawn Tate, from whom he purchased methamphetamine and other drugs on several occasions. On July 29, 1985, Kyle asked Tate to procure for him an eighth of an ounce of methaphetamine, and provided her with $180 in bills, the serial numbers of which had been recorded.

At Tate's direction, Kyle drove her to a certain apartment complex in Campbell. Tate pointed out Apartment 1 as her destination. She left the car with the marked funds, entered Apartment 1, and returned a few minutes later bearing a plastic bag containing methampetamine. She told Kyle that her suppliers were a sister and brother named "Frankie" and "Doug." Equipped with this information Kyle prepared an affidavit, and secured from the municipal court a warrant to search Apartment 1. The search warrant was issued on August 2, 1985, apparently during regular business hours.

Then the plot thickened. In the late afternoon of August 2, 1985, an informant told Kyle that Tate had recently learned Kyle was a cop. Learning this, Kyle sent a police officer to surveil Tate's residence. Then Kyle telephoned Tate and talked with her. From the discussion he concluded that Tate did indeed know he was a cop. Immediately after the telephone conversation the surveilling officer advised Kyle that Tate was driving away from her residence. Fearing that Tate was on her way to warn the occupants of Apartment 1, Kyle gave instructions to have her arrested for sales of methamphetamine. The arrest was promptly made, and Tate was brought to the police department. According to Kyle, Tate's arrest occurred "between an hour and two hours" before the search warrant was served. ¹

At 9:46 p.m. on the same date (August 2, 1985) Kyle and five other police officers repaired to Apartment 1. They came equipped with the search warrant and its supporting affidavit. Two of the officers were in regulation uniform. Kyle himself was "wearing a blue windbreaker that has a badge stenciled on the left chest and I don't recall exactly what the words are on the front of the jacket. On the back it says 'Santa Clara Police.' I had my police badge positioned at the top of the jacket just below my neck. I was wearing my police-duty belt and Levi's [sic ] to the best of my recollection." According to Kyle, the remaining officers "were dressed in a fashion very similar to the way I was dressed."

Kyle had his revolver drawn. He did not recall whether the other officers also had drawn their weapons, but he testified that "it's standard practice for us to have them drawn." On direct examination he described the entry thus:

"Q. And how did you proceed?

"A. I approached the residence with several other officers and I approached the front and only door and found it standing open. As soon as I stood in front of the door I made contact with a person in the living room directly on the other side of that door and made eye contact with that person.

"Q. Was there a door there?

"A. There was a door, yes, but it was open and there was a screen door that was closed.

"Q. Now, when you approached the screen door you said you could see someone in the house?

"A. Yes.

"Q. And was it a man or a woman?

"A. It was a man.

"Q. And what was he doing?

"A. He was laying [sic ] on the couch viewing television.

"Q. And what did you do?

"A. I made eye contact with that person, identified myself as a police officer, stated that I held a search warrant for the premises and would be entering to execute same.

"Q. Did he make any moves?

"A. No, he was directed not to.

"Q. Did you ask him if you could come in?

"A. No.

"Q. And when you directed him not to move, did he obey?

"A. Yes.

"Q. And you entered the house?

"A. That's correct."

On cross-examination Kyle testified to the following:

"Q. Now, as you approached the door, where--you did state that you knocked on the door, did you not?

"A. I did not.

"Q. You didn't knock?

"A. No.

"Q. Okay. How is it that you drew your attention to Mr. Cannon? How did you draw Mr. Cannon's attention to you?

"A. As I recall, as soon as I appeared in the doorway his attention was directed in my direction and from that point on we had eye contact.

"Q. Did you state anything to him at that time and if you did I'd like to know specifically what you stated.

"A. Yes. I stated that I was a police officer and that I possessed a search warrant for the premises and I told him to remain exactly where he was.

"Q. All right. And then what did you do?

"A. I opened the screen door and entered the residence.

"Q. How long did you wait before giving your announcement and entering?

"A. Just as long as it took me to open the door after I had already said all of the above things.

"Q. So we are basically talking a matter of seconds between the end of your announcement and the entry?

"A. Yes."

Cannon was handcuffed, and remained on the couch. A search of the apartment revealed (1) a substantial quantity of methamphetamine packaged in baggies; (2) a substantial amount of currency, including the $180 Kyle had given Fawn Tate five days earlier; and (3) a checkbook and driver's license belonging to appellant Tacy. While the search was in progress Tacy, appellant Cannon's sister, appeared on the scene, and she too was arrested.

II.

The foregoing facts were presented to a magistrate at a hearing which combined a preliminary examination with a motion to suppress evidence. At the conclusion of the hearing the magistrate refused to commit the defendants. She expressly found that there had been substantial compliance with Penal Code section 1531. Nevertheless, relying on People v. Neer (1986) 177 Cal.App.3d 991, 223 Cal.Rptr. 555, she ruled that there had been "a violation of 1531 because there was a refusal to request admission." She further ruled that no exigency existed "because of the delay in time and the fact that Tacy [sic: Tate] [was] already in custody at the time of the execution of the search warrant." The motion to suppress evidence was granted, Tacy and Cannon were discharged, and bail was exonerated.

The superior court agreed, apparently for different reasons. The judge conceded that the conduct of the officers "certainly would serve some of the purposes of the knock notice statute in what you are trying to do is prevent a violent reaction. The identity is not an issue because the police officer is standing there in uniform. [p] But knock notice contains a refusal requirement which is not a perfunctory requirement. It is part of the statute, and unless compliance is excused, there has to be compliance. [p] And there's no way, shape or form that there is any type of compliance with the refusal requirement in this case, nor is there any showing that there is exigency which justified dispensing it. [p] On the state of the law, I'm not going to comment on the wisdom of it, but on the state of the law, I don't see how this particular conduct can be deemed substantial compliance. The motion to reinstate the complaint is denied."

III.

"On review under [Penal Code] section 871.5, the superior court is bound by the magistrate's findings if they are supported by substantial evidence. But it is the duty of the superior court, and ours as well, to measure those facts, as found by the magistrate, against the constitutional standard of reasonableness. The constitutional issue is solely a question of law and if the magistrate mistakenly concluded that a search was unconstitutional that conclusion is also erroneous 'as a matter of law.' " (People v. Salzman (1982) 131 Cal.App.3d 676, 684, 182 Cal.Rptr. 748.)

IV.

In People v. Neer, supra, 177 Cal.App.3d 991, 223 Cal.Rptr. 555, police officers procured a search warrant for Neer's home. Four officers went to the premises to serve the warrant. They detained Neer in the front yard, but at that point they were unaware of his identity. One of the officers shouted: " 'We're the police department, don't move ... we have a search warrant.' " (Id., at p. 994, 223 Cal.Rptr. 555.) An officer named Klein, wearing a police raid jacket and hat, approached the front door. "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...