State v. Sanchez

• Decision Date: 20 March 1981
• Docket Number: No. 5036-PR,5036-PR
• Citation: 627 P.2d 676,128 Ariz. 525
• Parties: STATE of Arizona, Appellant, v. Gilbert Leonard SANCHEZ, and Tony Galaz Valenzuela, Appellees.
• Court: Arizona Supreme Court

Page 676

627 P.2d 676

128 Ariz. 525

STATE of Arizona, Appellant, v. Gilbert Leonard SANCHEZ, and Tony Galaz Valenzuela, Appellees.

No. 5036-PR.

Supreme Court of Arizona, In Banc.

March 20, 1981.

Rehearing Denied May 5, 1981.

Stephen D. Neely, Pima County Atty., Barbara LaWall, D. Jesse Smith, Deputy County Attys., Tucson, for appellant.

Bertram Polis, Tucson, for appellees.

GORDON, Justice:

Appellees were indicted by a Pima County Grand Jury for unlawful possession of marijuana for sale and conspiracy in the first degree. Before trial, their motion to suppress evidence seized in the search of a house was granted in Pima County Superior Court on the sole ground that the officers who executed the search warrant failed to comply with the requirements of A.R.S. § 13-3916(B):

"An officer may break into a building, premises, or vehicle or any part thereof, to execute the warrant when:

"1. After notice of his authority and purpose, he receives no response within a reasonable time.

"2. After notice of his authority and purpose, he is refused admittance."

The trial court suppression order was upheld by the Court of Appeals, 128 Ariz. ---, 627 P.2d 698 (No. 2 CA-CR 1840, filed May 28, 1980). We accepted the state's petition for review, taking jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 31.19 17 A.R.S., Rules of Criminal Procedure. We vacate the opinion of the Court of Appeals and reverse the Superior Court order granting appellees' motion to suppress.

Upon receiving information from an anonymous citizen that there was a large quantity of marijuana in a house at 1608 South Highland in Tucson, Arizona, state law enforcement officers began surveillance. The house and surrounding yard were enclosed by a six-foot chain link fence with double gates secured by a chain and padlock. The officers observed that the gates were always kept locked and that people who approached the gates had to wait for someone to come out of the house and open the gates in order to approach the house.

After a day and a half of surveillance, the officers obtained a search warrant for the premises at 1608 South Highland. They approached in three marked vehicles and one unmarked vehicle. Two of the officers wore regular uniforms. The rest wore "police raid jackets," blue blazers with patches on the arms and "police" written across the front. The officers cut the lock securing the chain link fence gates and entered the yard surrounding the house without announcing their authority and purpose. As the officers were entering the yard, appellees walked out of the house onto the front porch. At that time, the officers identified themselves and announced that they had a search warrant.

Appellees contended in their motion to suppress that the fence and gate surrounding the house were "premises" within the meaning of A.R.S. § 13-3916(B), supra. They claim that the officers' failure to announce their authority and purpose before cutting the lock on the chain link fence gates therefore violated the notice requirements of that statute.

The issue before us is whether the word "premises" in A.R.S. § 13-3916(B) encompasses the yard surrounding the house and enclosed by the chain link fence.

The Court of Appeals, in addressing this issue, relied on the scope which Arizona courts have accorded the word "premises" in the context of search warrants. In that regard, we have said, "(a) search of the premises may include property that constitutes a logical part of the residential premises." In Re One 1970 Ford Van, I.D. No. 14GHJ55174, L.No. CB 4030, 111 Ariz. 522, 523, 533 P.2d 1157, 1158 (1975). The Court of Appeals similarly has stated, "(a) search of premises, however, may include all property necessarily a part of the premises and so inseparable as to constitute a portion thereof." State v. Caldwell, 20 Ariz.App. 331, 334, 512 P.2d 863, 866 (1973); accord, State v. Dixon, 125 Ariz. 442, 610 P.2d 76 (App.1980). From this the Court of Appeals concluded that under the circumstances of this case, "premises" would include "a locked gate in a fence surrounding a residence."

One of the circumstances upon which the Court of Appeals based its conclusion was that the gate was always kept locked, which the Court felt indicated that the occupants of the house "had a 'reasonable expectation of privacy' in their front yard * * *. Katz v. United States, 389 U.S. 347, 83 S.Ct. 507, 19 L.Ed.2d 576 (1967)." The Court reasoned that "(c)onversely, had the gate not been locked there would have been no occasion to 'break into' the premises * * * and the knock and announce statute would have been inapplicable until the officers reached the residence."

We first note that we are here concerned with the scope of a knock and announce rule, not with the necessity of obtaining a search warrant because the area was one in which the appellees had a "reasonable expectation of privacy." It is undisputed that the officers had obtained a search warrant.

We also note that very little force is necessary to bring knock and announce rules into force. The United States Supreme Court has held that a statute similar to A.R.S. § 13-3916(B) governed the opening of a closed but unlocked door, explaining:

"An unannounced intrusion into a dwelling what § 3109 basically proscribes is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door."

Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828, 834 (1968). ¹ We have held a former Arizona statute ² imposing the knock and announce rule to be applicable to the pushing open of a door which was neither locked nor completely latched in State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977). We believe, therefore, that the applicability of A.R.S. § 13-3916(B) does not depend on whether the gates on the chain link fence were locked or unlocked.

We agree with the dissent in the Court of Appeals opinion that, in the context of A.R.S. § 13-3916(B), "(t)he meaning of the word ('premises') should not be equated with the area within which a search is authorized by a warrant." The legal concept of "premises" is fluid and depends on the situation and purpose of its use. People v. Atwood, 223 Cal.App.2d 316, 35 Cal.Rptr. 831 (1963). "The word 'premises' does not have a particular meaning beyond that dictated by the circumstances in which it is used. 'Premises' can refer to a single room (citation omitted), a large tract of farmland (citation omitted), or an apartment building or other multiple use building * * *." People v. Muniz, Colo., 597 P.2d 580, 582 (1979).

We recently noted that "(w)here a word in a statute is susceptible of more than one meaning the court must adopt such interpretation as is reasonable." Amphitheater Unified School District # 10 v. Court Commissioner, 128 Ariz. ---, 624 P.2d 1281 (1981). A.R.S. § 1-211(B) instructs that "(s)tatutes shall be liberally construed to effect their objects and to promote justice." We believe that we should interpret the word "premises" in A.R.S. § 13-3916(B) in a way that is reasonable, promotes justice, and effects the objects, or purposes, of that statute.

The right which knock and announce rules provide occupants is the right to be warned that their privacy is about to be legally invaded. State v. Bishop, 288 Or. 349, 605 P.2d 642 (1980). While A.R.S. § 13-3916(B) requires officers to give notice of their authority and purpose before breaking into buildings, premises or vehicles, once proper notice is given, the officers may enter regardless whether the occupant grants them permission to enter, refuses them admittance, or simply does nothing. A homeowner has no right to prevent a law enforcement officer with a valid warrant from entering his home. Payne v. United States, 508 F.2d 1391 (5th Cir.), cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974).

The purposes for requiring notice before officers make forcible entry into an area are generally held to be (1) protecting both occupants and law enforcement officers by preventing violent confrontations which may occur upon unannounced intrusions, (2) protecting individuals' rights of privacy in their homes as well as preventing unexpected exposure of occupants' private activities, and (3) preventing the destruction of property resulting from forced entry. See, e. g., Sabbath, supra; Payne, supra; Bustamante-Gamez, supra; People v. Solario, 19 Cal.3d 760, 139 Cal.Rptr. 725, 566 P.2d 627 (1977); People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 401 N.E.2d 507 (1979); State v. Prudhomme, Minn., 287 N.W.2d 386 (1979); Bishop, supra ; 2 W. LaFave, Search and Seizure, § 4.8(a) (1978). All three of these purposes assume the presence of occupants in the area into which officers intend to forcibly enter. Without occupants, unannounced intrusions would cause no more violence and invade no more privacy than announced intrusions. Without occupants to admit officers voluntarily, destruction of property would not be avoided by prior notice.

Several jurisdictions have held that officers executing search warrants may, without first giving notice of their authority and purpose, make forcible entries into vacant premises. United States v. Brown, 556 F.2d 304 (5th Cir. 1977); United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977); Payne, supra; Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); People v. Ford, 54 Cal.App.3d 149, 126 Cal.Rptr. 396 (1975); Hart v. Superior Court, 21 Cal.App.3d 496, 98 Cal.Rptr. 565 (1971); Erickson v. State, 597 P.2d 344 (Okl.Cr.App.1979). As the Fifth Circuit noted, "it is futile to require police to wait for refusal of admittance to an unoccupied...