People v. Neer

177 Cal. App. 3d 991, 223 Cal. Rptr. 555, 1986 Cal. App. LEXIS 2613

• Court: California Court of Appeal
• Decided: February 24, 1986
• Docket: No. G001782
• Status: Published

Opinions

Opinion

SONENSHINE, Acting P. J.

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 [82 L.Ed.2d 677, 104 S.Ct. 3405]); 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. 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, 161 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; Jeter v. Superior Court, supra, 138 Cal.App.3d 934, 937; 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; People v. Flores, supra, 128 Cal.App.3d 512, 521.) 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.) 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); thirty seconds (Duke v. Superior Court, supra, 1 Cal.3d 314); 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.

Ill

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, held exclusion is still required: “In Duke v. Superior Court (1969) 1 Cal.3d 314, 325, 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 [6 L.Ed.2d 1081, 1093, 81 S.Ct. 1684, 84 A.L.R.2d 933]. 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. Article I, section 28, subdivision (d) does not purport to repudiate Mapp. ” (See also People v. Gastelo, supra, 67 Cal.2d 586, 588.)

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 [58 L.Ed.2d 387, 99 S.Ct. 421].)

Thus, the question addressed in Lance W. was whether “this new constitutional provision . . . mandate[s] the exclusion of evidence obtained in violation of the search and seizure provisions of the federal Constitution (4th Amend.) or the state Constitution (art. I, § 13), under circumstances in which the evidence would be admissible under federal constitutional principles.” (Id., at p. 879, italics added.)

Our case presents a different question. Here there is no United States Supreme Court precedent permitting the introduction of evidence against a criminal defendant after the violation of knock and notice requirements. Put another way, Lance W. involved a situation where the holdings of the California and United States Supreme Courts on the reach of the exclusionary rule were in direct conflict. Proposition 8 requires the admission of evidence if not prohibited by the federal Constitution. Such was the case in Lance W. The same is not true here.

And taken as a whole, the language in the Lance W. majority opinion supports our conclusion. Our state Supreme Court is powerless to mandate exclusion of evidence because of Fourth Amendment violations only when the United States Supreme Court has held otherwise.

“What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (Id., at pp. 886-887.) “The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights, except as required by the Constitution of the United States.” (Id., at p. 887, italics added.) “Implicit in the limitation on the courts’ power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment.” (Id., at pp. 888-889, fn. omitted.) “[S]ection 28(d) was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution . . . .” (Id., at p. 890, italics added.) And the majority in Lance W. “conclude^] that Proposition 8 has abrogated both the ‘vicarious exclusionary rule’ under which a defendant had standing to object to the introduction of evidence seized in violation of the rights of a third person, and a defendant’s right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution.” (Id., at p. 879.)

Drawn into a broader context, the holding of Lance W. signifies this: California cases calling for the exclusion of evidence under article I, section 13, whether redressing a state or federal constitutional violation, have been nullified. However, those California cases which identify a Fourth Amendment violation and conclude the exclusion of evidence is required under the Fourth Amendment, are still sound law in the absence of a contrary United States Supreme Court opinion. Hence, Duke v. Superior Court, supra, 1 Cal.3d 314, 325 and Jeter v. Superior Court, supra, 138 Cal.App.3d 934, 938, remain the law.

We must follow Duke. “The decisions of [the Supreme] [C]ourt are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) “It is not for us to inquire what the law ought to be when the Supreme Court has emphatically informed us what the law is.” (Orange County Water District v. City of Riverside (1959) 173 Cal.App.2d 137, 165-166 [343 P.2d 450].)

There are narrow exceptions to Auto Equity Sales ’ application of the doctrine of stare decisis. But they are not applicable here. For example, a decision correct when rendered loses its force as precedent when a later statute changes the rule. (See, e.g., People v. Valentine (1946) 28 Cal.2d 121, 144 [169 P.2d 1]; Lane & Pyron, Inc. v. Gibbs (1968) 266 Cal.App.2d 61, 66 [71 Cal.Rptr. 817].) This is also true where a statute or constitutional provision is repealed. (See, e.g., In re Jones (1962) 57 Cal.2d 860, 862 [22 Cal.Rptr. 478, 372 P.2d 310].)

California Constitution, article I, section 28, subdivision (d) did affect the doctrine of stare decisis concerning the exclusionary rule. For instance, the relaxed federal rule for testing the sufficiency of search warrant affidavits (Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527, 103 S.Ct. 2317]) now applies in California (see, e.g., Higgason v. Superior Court (1985) 170 Cal.App.3d 929 [216 Cal.Rptr. 817]), despite the requirements of California Constitution, article I, section 13 (see People v. Campa (1984) 36 Cal.3d 870, 880 [206 Cal.Rptr. 114, 686 P.2d 634]). But that conclusion is consistent with Lance W., which specifically eliminates exclusionary rulings based on the state Constitution.

The present situation is not comparable—Duke holds exclusion is required by the Fourth Amendment, not the California Constitution. Even assuming some of the language of the Lance W. majority opinion could be extrapolated to suggest California courts may no longer say the federal Constitution requires the exclusion of evidence, there are two related reasons we decline to so interpret it. First, it is dictum (see People v. Gregg (1970) 5 Cal.App.3d 502, 506 [85 Cal.Rptr. 273]), and persuasive as it may be from our Supreme Court (see Smith v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 412, 418 [128 Cal.Rptr. 572]), it is also contrary to previous holdings the court has not specifically disavowed.⁴ Second, the Lance W. court was not addressing the issue before us and “cases are not authority for propositions not considered. [Citation.]” (People v. Burnick (1975) 14 Cal.3d 306, 317 [121 Cal.Rptr. 488, 535 P.2d 352].) We are not free to disregard Duke based on Lance W.

Moreover, Duke relies on Mapp. To the extent Lance W. can be read to require a United States Supreme Court declaration exclusion is required (see In re Lance W., supra, 37 Cal.3d 873, 885), Duke says Mapp is such a declaration.

Duke is explicit—exclusion is required by the Constitution of the United States. We defer to Duke’s clarity when the alternative is an exploration of Lance W. ’s possible implications. This seems particularly apt when the Lance W. majority itself acknowledges several aspects of article I, section 28, subdivision (d) require resolution. (See In re Lance W., supra, at p. 886, fn. 6.)

Finally, we do not believe, as does our dissenting colleague, United States v. McConney (9th Cir. 1984) 728 F.2d 1195 or other lower federal court cases compel a contrary result. McConney deals with the issue of an exigency under the federal statutory equivalent to section 1531 (18 U.S.C. § 3109). It does not address the exclusionary rule. To hold McConney applies here would be to say federal interpretations of a federal statute now bind California courts in interpreting sections 844 and 1531. But Lance W. makes it clear only the remedy of exclusion has been aflected. (See In re Lance W, supra, 37 Cal.3d 873, 886-887.)⁵

In addition, California courts are not bound by the decisions of lower federal courts even on federal questions. (People v. Bradley, supra, 1 Cal.3d 80, 86.) They are but persuasive authority. To elevate McConney over California Supreme Court cases interpreting sections 844 and 1531⁶ would upend this long-standing rule. Lance W. does not require that.

It is true the Lance W. majority obliquely notes a certain wavering, evidenced by United States v. Leon, supra, 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], in the United States Supreme Court’s fealty to the exclusionary rule.⁷ And it could be argued the prospects for the Fourth Amendment exclusionary rule in this general area of the law are not particularly bright. (See Segura v. United States (1984) 468 U.S. 796 [82 L.Ed.2d 599; 104 S.Ct. 3380].) Nevertheless, in Ker v. California (1963) 374 U.S. 23 [10 L.Ed.2d 726, 83 S.Ct. 1623], the United States Supreme Court analyzed a forced entry pursuant to section 844 to determine whether “the method of entering the home . . . offend [s] federal constitutional standards of reasonableness and therefore vitiate[s] the legality of an accompanying search.” (Id., at p. 38.)

The section 1531 violation mandates suppression of the evidence seized pursuant to the search warrant. Neer’s section 1538.5 motion was erroneously denied. This issue disposes of Neer’s appeal. Therefore, it is unnecessary to wade into the Leon-Sheppard quagmire anew and we express no opinion on the issues concerning the validity of the warrant itself.

The judgment is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion.

Wallin, J., concurred.

1 All statutory references are to the Penal Code unless otherwise specified.

2 Section 1531 provides: “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.”

3 The requirement the occupants refuse admittance before a forced entry is permitted distinguishes section 1531 from section 844. (See People v. Schmel (1975) 54 Cal.App.3d 46, 50-51 [126 Cal.Rptr. 317].) However, the two sections are otherwise comparable and reference to cases interpreting each is appropriate. (See People v. Peterson, supra, 9 Cal.3d 717, 722, fn. 7; Duke v. Superior Court, supra, 1 Cal.3d 314, 323; Greven v. Superior Court (1969) 71 Cal.2d 287, 292, fn. 6 [78 Cal.Rptr. 504, 455 P.2d 432]; People v. Schad (1971) 21 Cal.App.3d 201, 207 [98 Cal.Rptr. 439].)

4 It was unnecessary to decide (see People v. Gregg, supra, 5 Cal.App.3d 502, 506) in Lance W. whether the California Supreme Court retained the power to declare a Fourth Amendment violation required exclusion of evidence.

5 Moreover, we note 18 United States Code section 3109 codifies “ ‘a tradition embedded in Anglo-American law, . . . the reverence of the law for the individual’s right of privacy in his house.’” (Sabbath v. United States (1968) 391 U.S. 585, 589 [20 L.Ed.2d 828, 833, 88 S.Ct. 1755], quoting Miller v. United States (1958) 357 U.S. 301, 313 [2 L.Ed.2d 1332, 1340, 78 S.Ct. 1190]; see also People v. Bradley (1969) 1 Cal.3d 80, 86-87 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Maddox (1956) 46 Cal.2d 301 [294 P.2d 6].)

6 See, e.g., People v. Cook (1978) 22 Cal.3d 67, 98 [148 Cal.Rptr. 605, 583 P.2d 130]; People v. Peterson, supra, 9 Cal.3d 717, 722-724; People v. Hall (1971) 3 Cal.3d 992, 997-998 [92 Cal.Rptr. 304, 479 P.2d 664]; Duke v. Superior Court, supra, 1 Cal.3d 314, 323-325; People v. Bradley, supra, 1 Cal.3d 80, 86-88; People v. Benjamin, supra, 71 Cal.2d 296, 298-299; Greven v. Superior Court, supra, 71 Cal.2d 287, 293-295; People v. Rosales (1968) 68 Cal.2d 299, 302-305 [66 Cal.Rptr. 1, 437 P.2d 489]; People v. Gastelo, supra, 67 Cal.2d 586, 588-589.

On the continuing vitality of Cook’s major holding with respect to misstatements in search warrants, see People v. Truer (1985) 168 Cal.App.3d 437 [214 Cal.Rptr. 869]; People v. Luevano (1985) 167 Cal.App.3d 1123 [213 Cal.Rptr. 764].

7 Interestingly, in a case recognizing the impact of Leon and its companion case, Sheppard [Massachusetts v. Sheppard (1984) 468 U.S. 981 [82 L.Ed.2d 737, 104 S.Ct. 3424], in California, another Court of Appeal dealt with a knock and notice issue as if Proposition 8 had no effect on it. (People v. MacAvoy (1984) 162 Cal.App.3d 746 [209 Cal.Rptr. 34].)

1 Sanchez can be read to suggest the court interpreted Lance W. to hold that lower courts are released from following a more liberal Fourth Amendment determination of the California Supreme Court where the United States Supreme Court has found no violation on similar facts. This would be incorrect. Lance W. implements only that portion of the federal holding refusing to apply the exclusionary rule; the search remains illegal under California’s interpretation of the Fourth Amendment. Thus, while I will recognize that this search violated the Fourth Amendment according to California law, since federal courts would not require suppression (because they would find no violation), I would hold Lance W. bars application of the exclusionary rule.