Supreme Court of California Justia
Docket No. S125572
People v. Murphy

Filed 11/28/05

IN THE SUPREME COURT OF CALIFORNIA

PEOPLE, )

Plaintiff and Respondent,
S125572
v.
Ct.App. 4/1 D040040
MILDRED MURPHY,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCE-217093

We consider whether the circumstances in this case afforded sufficient
exigency to justify a police entry to conduct a search of a residence without
complying with the usual “knock-notice” rule, to prevent destruction of evidence.
We conclude the “no-knock” entry was justified by the circumstances, which
included (1) contemporaneous, ongoing illegal drug sales on the premises, raising
the reasonable inference that more drugs were inside, (2) the officers’ knowledge
that defendant was on probation for a drug offense and had consented to a
warrantless search of her premises, (3) the unplanned noisy confrontation with a
suspect directly outside defendant’s open doorway, and (4) the officers’ loud
announcement of their presence and purpose to the suspect.
The foregoing conclusion makes it unnecessary for us to consider the
People’s alternative argument that the so-called inevitable discovery doctrine
applies here to validate the search despite a possible knock-notice violation, an
1


issue now pending before the United States Supreme Court. (Hudson v. Michigan,
cert. granted June 27, 2005, No. 04-1360.)
FACTS
Defendant Mildred Murphy appeals the denial of her motion to suppress
evidence (Pen. Code, § 1538.5, subd. (m)) after having pleaded guilty to
possessing methamphetamine for sale (Health & Saf. Code, § 11378). The
following uncontradicted facts are taken largely from the Court of Appeal opinion
in this case. Because the question whether sufficient exigent circumstances
existed depends on a close examination of the surrounding facts, we recite those
facts in some detail.
At approximately 1 p.m. on November 7, 2001, on investigating a citizen’s
complaint, Detective Santana of the San Diego County Sheriff’s Department
Street Narcotics Team observed a woman leave defendant’s residence, and drive
away. Santana, suspecting a drug transaction had taken place, stopped the car.
The driver admitted she had obtained methamphetamine from defendant. Santana
decided to conduct a probation search of defendant’s residence. (It is undisputed
that defendant was then on probation and had consented to warrantless searches of
her residence as a condition of her probation.)
While Detective Marlow maintained surveillance of defendant’s residence,
Santana developed an operational plan for the search. He was familiar with the
layout of the house, having had previous contact with defendant. Because Santana
had observed people coming out of defendant’s converted bedroom in the garage,
he decided the search team should enter through the garage.
During the surveillance, Marlow observed defendant greet a man in front of
her house. They walked around the side of the house and reappeared a few
minutes later. It appeared to Marlow that they were exchanging something.
Shortly thereafter, Santana and other members of the search team arrived, wearing
2
plain clothes, but with black bulletproof vests with the word “Sheriffs” on them,
and hats marked with the words “Sheriff’s Narcotics.” Marlow also observed yet
another man near defendant’s garage. Once Santana and the other members of the
search team arrived, Marlow alerted them to this man’s presence.
Santana and the other officers approached this man, later identified as
Thomaselli, who was standing near the corner of the garage clenching something
in one hand. 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 also yelling, “Sheriff’s
Department,” and they all had their guns drawn. Thomaselli was actually
repairing a fence for defendant and was holding some screws in his hand. The
officers at no time observed any interaction between defendant and Thomaselli.
When the officers confronted Thomaselli, Santana heard a dog barking
loudly from inside defendant’s house. At least five to seven seconds later, Santana
and other members of the team entered the residence, without knocking. Santana
said he did not knock because he knew 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’s stakeout had been “compromise[d]”
and feared persons in the residence might arm themselves, destroy evidence, or
flee. Santana testified that he and four or five members of his team entered the
house with their guns drawn.
Upon searching the residence, the officers found defendant at the opposite
end of the house from where they had entered, in a bedroom with her bedridden
ex-husband. Defendant was read her Miranda rights and waived them. She
readily admitted having sold methamphetamine and showed the officers the
3
location of a scale and six baggies that contained the drug. The officers also found
several “pay and owe” sheets in defendant’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 defendant was inside the house, and he told them she was. Thomaselli
did not see them enter the house.
Defendant testified on her own behalf. She was in a back bedroom with the
door shut, caring for her ex-husband, when the officers entered the house. 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,
defendant opened the bedroom door and found one of the officers standing in the
doorway, pointing a gun at her face. He told defendant to put her hands up.
Defendant was charged with possession of methamphetamine for sale
(Health & Saf. Code, § 11378). She pleaded not guilty and filed a motion to
suppress evidence, pursuant to Penal Code section 1538.5, claiming that in
conducting the search, the officers had violated California’s knock-notice
requirements and the Fourth Amendment. The preliminary examination hearing
served also as an evidentiary hearing for the motion to suppress and the probation
revocation.
The court initially found there were no exigent circumstances that would
excuse the officers’ duty to comply with the knock-notice requirements. The court
reasoned that when the officers entered defendant’s residence, they had
insufficient reason to believe drugs were being flushed or otherwise destroyed, or
that anyone in the house was arming himself or herself. In addition, they had no
reason to believe defendant was likely to be armed, and they could see she was not
attempting to flee.
4
The court also determined, however, that the officers’ shouting at
Thomaselli, identifying themselves as sheriff’s deputies, and announcing their
intent to conduct a probation search, sufficiently notified the occupants of the
impending search, thereby satisfying 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 defendant to answer for the methamphetamine
charge and revoked her probation.
Defendant filed a motion to set aside the information, pursuant to Penal
Code section 995, on the ground that the law enforcement officers had violated
knock-notice requirements. The trial court denied the motion. Defendant then
pleaded guilty to possessing methamphetamine for sale. The trial court placed
defendant 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
defendant was eligible for electronic surveillance and revised the 210-day
commitment order accordingly. Defendant filed a timely appeal.
On appeal, the Court of Appeal filed a divided opinion reversing the
judgment. The majority concluded that the evidence seized during the search was
obtained in violation of California’s knock-notice requirements and the Fourth
Amendment, and must therefore be suppressed. We granted the People’s petition
for review and directed the Court of Appeal to vacate the opinion and reconsider
its decision in light of United States v. Banks (2003) 540 U.S. 31 (Banks), which
was decided after it filed its opinion in this case.
5
On reconsideration, a majority of the Court of Appeal again concluded that
the search of defendant’s residence violated California’s knock-notice
requirements and the Fourth Amendment, and that the evidence seized during the
search must be suppressed. Justice Benke again dissented. We again granted
review and will reverse.
DISCUSSION
As a general rule, before entering a house to make an arrest or perform a
search, officers must first identify themselves, explain their purpose, and demand
admittance. (People v. Rosales (1968) 68 Cal.2d 299, 302 (Rosales) [failure to
state purpose invalidated entry]; People v. Maddox (1956) 46 Cal.2d 301, 306
(Maddox) [knock-notice compliance excused where officer had good faith belief
his peril would increase or occupants would flee]; see Penal Code, §§ 844, 1531;
see generally, Annot., Knock-and-Announce Compliance (2001) 85 A.L.R.5th 1
(Annotation).) The purpose of this so-called knock-notice rule is (1) to protect the
privacy of the householder; (2) to safeguard innocent persons on the premises; (3)
to prevent violent confrontations arising from unannounced entries; and (4) to
protect the police themselves from injuries caused by a surprised or fearful
householder. (People v. King (1971) 5 Cal.3d 458, 464, fn. 3.) The rule applies to
entries through unlocked doors as well as “break-in” entries achieved by force.
(Rosales, supra, 68 Cal.2d at p. 303, and fn. 4.)
The People no longer contend that the officers’ conduct substantially
complied with the knock-notice rule, and we do not consider that issue here. (See,
e.g., People v. Hoag (2000) 83 Cal.App.4th 1198, 1208-1212 [maj. opn. by Hull,
J.]; id. at pp. 1219-1229 [dis. opn. by Sims, Acting P.J.].) The People also do not
dispute that the knock-notice rule applies to probation searches. (See People v.
Lilienthal (1978) 22 Cal.3d 891, 900; People v. Mays (1998) 67 Cal.App.4th 969,
973, fn. 4.) The People do contend, however, that exigent circumstances justified
6
the knock-notice violation. As previously noted, they also argue alternatively that
the inevitable discovery doctrine validated the search, an issue we decline to reach.
In the present case, the trial court (magistrate) found no exigent
circumstances existed to excuse the officers' duty to comply with the knock-notice
requirements, as the officers did not know that drugs were being flushed or
otherwise destroyed, or that anyone in the house was arming himself or herself or
attempting to flee. Of course, this finding, to the extent it states a legal
conclusion, is not binding on us. “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, supra, 67 Cal.App.4th at p. 972.)
We have held that failure to comply with the knock-notice rule may be
excused when exigent circumstances exist. For example, in Maddox, supra, 46
Cal.2d 301, an officer acting with reasonable cause to make a narcotics arrest
kicked down defendant’s door after knocking and hearing retreating footsteps.
Although the officer failed to demand admittance or explain his purpose, we
upheld the seizure of narcotics found within. We observed that full compliance
with knock-notice requirements could delay an officer’s entry and thereby “permit
[the] destruction or secretion of evidence . . . .” (46 Cal.2d at p. 305.) Because the
officer in Maddox clearly had the right to enter and invade defendant’s privacy,
“there is no compelling need for strict compliance with the requirements of [Penal
Code] section 844 to protect basic constitutional guarantees.” (Id. at p. 306.)
In Maddox, we framed the applicable test for exigent circumstances this
way: “[W]hen there is reasonable cause to make an arrest and search and the facts
known to [the officer] before his entry are not inconsistent with a good faith
7
belief . . . that compliance with [Penal Code] section 844 is excused, his failure to
comply with the formal requirements of that section does not justify the exclusion
of the evidence he obtains.” (Maddox, supra, 46 Cal.2d at pp. 306-307.) More
recent cases have slightly rephrased that test so that strict compliance with the
knock-notice rule is excused “if the specific facts known to the officer before his
entry are sufficient to support his good faith belief that compliance will increase
his peril, frustrate the arrest, or permit the destruction of evidence.” (People v.
Tribble (1971) 4 Cal.3d 826, 833, italics added; see People v. Dumas (1973) 9
Cal.3d 871, 877; Rosales, supra, 68 Cal.2d at p. 305; People v. Flores (1982) 128
Cal.App.3d 512, 521 (Flores); see also Annot., supra, 85 A.L.R.5th at pp. 179-
182, § 50, citing similar out-of-state cases.)
We have also made clear, however, that no blanket rule exists exempting all
narcotics cases from the knock-notice rule; instead, a specific showing must be
made to justify an unannounced entry or break-in. (Rosales, supra, 68 Cal.2d at p.
305; People v. Gastelo (1967) 67 Cal.2d 586, 587-589.) In other words, the mere
fact that the officers are aware of contemporaneous drug activity on the premises
does not provide per se justification for a no-knock entry.
Nonetheless, we think the People made a sufficient specific showing of
exigent circumstances here. Flores, supra, 128 Cal.App.3d 512, is very close on
point. There, the officers were aware of recent or contemporaneous drug sales on
the premises and obtained a search and arrest warrant. Before entering the
premises, the officers confronted defendant Flores outside, arrested him, and
yelled through the open door “ ‘Police officer with a search warrant. Demand an
entry.’ ” (Id. at p. 518.) Knowing that any drugs on the premises could be quickly
8
destroyed by other persons they knew were inside, the officers entered a few
seconds later, seizing drugs and various other items. (Id. at pp. 518-519.)
The Flores court acknowledged the officers entered without giving the
occupants a reasonable opportunity to permit or refuse peaceable entry. (See
Brown v. Superior Court (1973) 34 Cal.App.3d 539, 543.) But the court found
sufficient exigent circumstances to excuse strict compliance: “[T]he specific facts
known to [the police officer] included the immediately preceding large heroin sale
actively engaged in by [a codefendant] whom he knew was inside the same house
where heroin sales of increasing amounts were completed in four of the past six
days and . . . the yelling at [defendant] just outside the open front door which he
reasonably could consider as having warned those inside of the officers’ presence
and purpose.” (Flores, supra, 128 Cal.App.3d at p. 521.) These two factors,
ongoing drug sales and a loud announcement of the officers’ identify and purpose,
are similarly present in this case.
We also find strong support for our holding in Banks, supra, 540 U.S. 31.
Banks recently clarified the federal constitutional principles governing
nonconsensual entries made without full compliance with knock-notice
requirements. These principles, which seem fully compatible with the California
cases discussed above, necessarily govern our analysis here. (Cal. Const., art. 1, §
28, subd. (d); see In re Lance W. (1985) 37 Cal.3d 873, 884-890.) In Banks, the
officers obtained a search warrant based on an informant’s tip that the defendant
was selling cocaine from his home. The officers arrived at the premises, called out
“ ‘police search warrant,’ ” knocked loudly on the door, and after 15 to 20 seconds
9
broke in with a battering ram. A house search uncovered contraband and other
incriminating evidence. (Banks, supra, 540 U.S. at p. 33.) The Ninth Circuit
Court of Appeal reversed a trial court denial of suppression of the foregoing
evidence, and the high court granted certiorari to consider whether the officers
waited a reasonable time before breaking in. The court upheld the entry and
search. (Banks, supra, 540 U.S. pp. 34-35.)
Unlike the present case, the officers in Banks actually knocked and
formally announced their purpose before breaking in. Yet the Banks court did not
treat that fact as legally significant because “there is no reason to treat a post-
knock exigency differently from the no-knock counterpart” because “the same
criteria” should apply in determining whether the officers could legitimately enter
after knocking or whether a knock and announcement were required in the first
place. (Banks, supra, 540 U.S. at pp. 40, 35.)
The Banks court repeated the previous test for allowing a “no-knock” entry,
namely, that the police must “ ‘have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances, would be
dangerous or futile, or . . . would inhibit the effective investigation of the crime
by, for example, allowing the destruction of evidence.’ ” (Banks, supra, 540 U.S.
at p. 37, quoting Richards v. Wisconsin (1997) 520 U.S. 385, 394.) Banks noted
that, under Richards, “if circumstances support a reasonable suspicion of exigency
when the officers arrive at the door, they may go straight in” without knocking.
(Banks, supra, 540 U.S. at p. 37.)
With respect to the exigency present whenever drugs are involved, Banks
agreed that after waiting 15 or 20 seconds without a response to their knock, the
officers could reasonably suspect that any drug on the premises would be flushed
10
away unless they forcibly broke in. (Banks, supra, 540 U.S. at p. 38.) The court
observed that “when circumstances are exigent because a pusher may be near the
point of putting his drugs beyond reach, it is imminent disposal, not travel time to
the entrance, that governs when the police may reasonably enter . . . .” (Id. at p.
40.)
As noted, a majority of the Court of Appeal in the present case found no
exigent circumstances to excuse the officers from complying with the knock-
notice rule. The majority agreed with the magistrate that the officers provided
insufficient facts to justify their fear that evidence could be destroyed absent
immediate entry. In this regard, the court expressly declined to follow the Flores
rationale (see Flores, supra, 128 Cal.App.3d at p. 521) that contemporaneous sales
on the premises, coupled with the officers’ yelling at one suspect outside the open
door, justified immediate entry to prevent destruction of evidence. As for Banks,
supra, 540 U.S. 31, the Court of Appeal majority attempted to distinguish that
case as one in which the officers actually knocked before entering, seemingly
ignoring Banks’ statement that the same standards it was announcing would apply
in a “no-knock” situation if the requisite “reasonable suspicion of exigency”
existed. (Banks, supra, 540 U.S. at pp. 36-37.)
The dissenting opinion of Acting Presiding Justice Benke in this case
argued that exigent circumstances existed based on defendant’s ongoing or
contemporaneous drug transactions on or near the premises, the officers’ loud
shouting at Thomaselli identifying themselves as officers conducting a probation
search, and their reasonable belief that defendant was thereby amply alerted to
their presence and purpose. As the Benke dissent observed, “[n]ot only would
knocking and waiting for a response from occupants have been futile and risk
destruction of drugs, in this case the officers’ staging plan was in disarray, their
attention necessarily diverted from appellant and entering her house to the chaos
11
of dealing with events outside. . . . Moreover, as the United States Supreme Court
reminds us, we are not at liberty to substitute our views on how the officers should
have responded, but rather we are obligated to view the reasonableness of their
actions through their eyes at the time they are confronted with the alleged
exigency. Under the chaotic circumstances here, it was reasonable for Santana to
choose a course of action that preserved the safety of the officers.
“The majority would have these officers, in the midst of the commotion and
drug dealing around them, with guns drawn, stand at a partially opened sliding
glass door they could not see through (but presumably through which they could
be seen by those inside). There they would be required to knock and count the
seconds, somehow reflecting individually or as a group upon preceding events to
determine how long they should wait. This is not realistic. Nor is it a result
contemplated by existing law.”
We agree with the Court of Appeal dissent that exigent circumstances
excused compliance with the knock-notice rule in this case. The officers
reasonably could assume, based on their knowledge of defendant’s probationary
status allowing warrantless searches and the apparent ongoing and
contemporaneous drug sales on the premises, that some drugs were still present
inside which could be readily destroyed once defendant became aware of the
officers’ identity and intent. The officers could also reasonably suspect that the
commotion occurring immediately outside defendant’s open door, including the
officers’ loud identification of themselves as members of the sheriff’s department
seeking to execute a probation search, and the sound of a barking dog inside the
premises, together would alert defendant to destroy or conceal any drugs on the
premise unless the officers entered without further delay. As the trial court found,
the loud confrontation with Thomaselli was sufficient to put defendant on notice
of the officers’ identity and purpose.
12
We stress, of course, that police officers are not permitted to contrive to
create their own exigency by making loud noises before entering, or even by
loudly announcing their presence and purpose to serve as a pretext for entering
without knocking. But nothing in the record suggest the officers prearranged or
contrived the confrontation with Thomaselli.
Defendant observes that in Banks, supra, 540 U.S. at page 33, the officers
waited 15 to 20 seconds before entering, whereas here the officers entered after a
mere five to seven seconds after announcing their identity and purpose to
Thomaselli. First, the trial court found that “probably” more time had elapsed
than merely five or seven seconds. Second, in the present case, the officers
entered through an unlocked open door. But in Banks, the officers determined to
use a battering ram to break down the defendant’s door and obviously needed
more time to prepare for and execute an entry in such manner. In any event, in the
words of the high court in Banks, supra, 540 U.S. at page 40, “when
circumstances are exigent because a pusher may be near the point of putting his
drugs beyond reach, it is imminent disposal, not travel time to the entrance, that
governs when the police may reasonably enter.”
Defendant also argues that police officers should not be allowed to dispense
with the requirement of an actual knock merely because they have previously
announced their identity and purpose. We agree that even in drug cases, ordinarily
officers executing a search must complete the knock-notice procedure and may not
rely on their announcement as itself creating an exigency justifying immediate
entry. As noted above, however, no evidence exists in this case to suggest the
officers contrived to use their confrontation with Thomaselli as an excuse to avoid
compliance with the knock notice rule.
We conclude that, under the facts in this case, the officers’ entry without
knocking was justified by exigent circumstances.
13
The judgment of the Court of Appeal is reversed.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.

14





DISSENTING OPINION BY MORENO, J.

The majority concludes that exigent circumstances excused the sheriff’s
deputies in the present case from complying with the constitutional requirement,
codified in Penal Code section 1531, that a law enforcement officer may not enter
a residence to execute a search warrant (or conduct a probation search) unless
“after notice of his authority and purpose he is refused admittance.” (Ibid.)1 I
disagree. Although this is a close case, in my view, the commotion that occurred
as the sheriff’s deputies approached the residence may have alerted the occupants
to the presence of the police and their purpose, and thus may have obviated the
need to announce the officers’ authority and purpose, but it did not excuse the
officers from affording the occupants an opportunity to permit or “refuse[]
admittance.”
In People v. Rosales (1968) 68 Cal.2d 299, we recognized that the parallel
“knock-notice” requirement in section 8442 “is designed to protect fundamental
rights. ‘Decisions in both the federal and state courts have recognized, as did the
English courts, that the requirement is of the essence of the substantive protections

1
All further statutory references are to the Penal Code, unless otherwise
noted.
2
Section 844 states that a peace officer may break open the door of a house
to make an arrest “after having demanded admittance and explained the purpose
for which admittance is desired.”
1



which safeguard individual liberty.’ [Citation.] [¶] The statute reflects more than
concern for the rights of those accused of crime. It serves to preclude violent
resistance to unexplained entries and to protect the security of innocent persons
who may also be present on premises where an arrest is made. ‘We are duly
mindful of the reliance that society must place for achieving law and order upon
the enforcing agencies of the criminal law. But insistence on observance by law
officers of traditional fair procedural requirements is, from the long point of view,
best calculated to contribute to that end. However much in a particular case
insistence upon such rules may appear as a technicality that inures to the benefit of
a guilty person, the history of the criminal law proves that tolerance of short-cut
methods in law enforcement impairs its enduring effectiveness. The requirement
of prior notice of authority and purpose before forcing entry into a home is deeply
rooted in our heritage and should not be given grudging application. . . . Every
householder, the good and the bad, the guilty and the innocent, is entitled to the
protection designed to secure the common interest against unlawful invasion of the
house.’ ” (Rosales, supra, 68 Cal.2d at pp. 304-305, fn. omitted.)
In the present case, Detective Alberto Santana approached defendant’s
residence with his team of officers to conduct a probation search knowing that
defendant was actively engaged in selling drugs from the residence. The officers
were wearing bulletproof vests with the word “Sheriffs” printed on them, and
baseball caps that said “Sheriff’s Narcotics.” The focus of the search was the
attached garage, which defendant had converted into a bedroom and had a sliding
glass door on the side.
Rather than approach the front door of the residence, the officers went
through a gate to approach the sliding glass door of the converted garage, but as
they turned the corner, the detective came “face-to-face” with a man “clenching
something in his hand.” The detective, with his gun drawn, said “in a loud voice
2

. . . [a]lmost yelling,” “Sheriff’s Department, probation search, get on the ground.”
He believed that the other members of his team also had their guns drawn and
yelled the same thing. The man, later identified as Michael Thomaselli, had been
repairing the fence and was holding only screws in his hand.
A dog began barking inside the converted garage. Believing their operation
had been “compromised” because “[a]nyone in the residence or in the bedroom
would have heard us” and “could possibly arm themselves, could possibly destroy
evidence or possibly run,” Detective Santana organized his team of officers and,
within five to seven seconds, entered the sliding glass door, which was open,
without knocking. As they entered, the officers yelled “Sheriff’s Department,
probation search.” The sole occupant of the converted garage was the barking
dog. The officers entered the residence proper and crossed the dining room, the
living room, and a hallway before finding defendant and her ex-husband, who is
bedridden, in his bedroom at the rear of the house.
Defendant testified that just before the police arrived, she had gone into her
ex-husband’s bedroom and shut the door. She later heard someone calling her
name and opened the bedroom door to find a sheriff’s deputy pointing a gun at her
and ordering her to raise her hands.
The superior court denied the motion to suppress evidence, erroneously
concluding that the officers had substantially complied with the knock-notice
requirement by announcing their presence and their purpose when they
encountered the worker outside the door of the converted garage, but the court
further found that no exigent circumstances had excused compliance with the
knock-notice requirement: “[T]here are no known exigencies. . . . They don’t
know if there are drugs being flushed, they don’t know that anybody is being
armed. . . . They didn’t have any reason to believe she was armed. They could see
she wasn’t fleeing. They have the place surrounded. There is no exigency.”
3

The Court of Appeal reversed, correctly recognizing that the officers did
not substantially comply with the knock-notice requirement, and concluding, as
did the superior court, that there were no exigent circumstances that excused such
compliance.
The People no longer argue that the officers substantially complied with the
knock-notice requirement, and I agree with the superior court and the Court of
Appeal that there were no exigent circumstances excusing compliance with the
knock-notice requirement. The majority reaches the opposite conclusion that it
was proper for the officers to enter defendant’s residence without giving “notice of
[their] authority and purpose” and being “refused admittance” as required by
section 1531. My disagreement centers upon a single sentence in the majority
opinion, which appears in the paragraph summarizing the majority’s reasoning.
The majority summarizes its reasoning as follows: “The officers
reasonably could assume, based on their knowledge of defendant’s probationary
status allowing warrantless searches and the apparent ongoing and
contemporaneous drug sales on the premises, that some drugs were still present
inside which could be readily destroyed once defendant became aware of the
officers’ identity and intent. The officers could also reasonably suspect that the
commotion occurring immediately outside defendant’s open door, including the
officers’ loud identification of themselves as members of the sheriff’s department
seeking to execute a probation search, and the sound of a barking dog inside the
premises, together would alert defendant to destroy or conceal any drugs on the
premises unless the officers entered without further delay. As the trial court
found, the loud confrontation with Thomaselli was sufficient to put defendant on
notice of the officers’ identity and purpose.” (Maj. opn., ante, at pp. 11-12.)
I agree with the majority that “the loud confrontation with Thomaselli was
sufficient to put defendant on notice of the officers’ identity and purpose.” (Maj.
4

opn., ante, at p. 12.) But section 1531 requires more than just notification of the
officer’s presence and purpose, it further requires that the occupants have “refused
admittance.” The loud confrontation with Thomaselli, therefore, might have made
it unnecessary for the officers to announce their authority and purpose but it did
not permit the officers to enter the residence until they had either been granted or
refused admittance. Such a refusal to admit the officers may be implied, of
course, if the occupants do not respond within a reasonable time following a
demand for entry. (United States v. Banks (2003) 540 U.S. 31, 38; People v.
Gonzalez (1989) 211 Cal.App.3d 1043, 1047.)
I also agree with the majority that “[t]he officers reasonably could assume,
based on their knowledge of defendant’s probationary status allowing warrantless
searches and the apparent ongoing and contemporaneous drug sales on the
premises, that some drugs were still present inside which could be readily
destroyed once defendant became aware of the officers’ identity and intent.”
(Maj. opn., ante, at p. 12.) But as the majority acknowledges, “no blanket rule
exists exempting all narcotics cases from the knock-notice rule . . . . In other
words, the mere fact that the officers are aware of contemporaneous drug activity
on the premises does not provide per se justification for a no-knock entry.” (Maj.
opn., ante, at p. 8.) There always is a risk that the occupants of a residence that
contains drugs may attempt to destroy those drugs as soon as an officer executing
a warrant or conducting a probation search announces his or her presence and
demands admittance. Nevertheless, the officer cannot lawfully enter until the
occupants have either granted or refused admittance or have been given a
reasonable opportunity to do so.
My disagreement with the majority, therefore, hinges upon the following
statement: “The officers could also reasonably suspect that the commotion
occurring immediately outside defendant’s open door, including the officer’s loud
5

identification of themselves as members of the sheriff’s department seeking to
execute a probation search, and the sound of a barking dog inside the premises,
together would alert defendant to destroy or conceal any drugs on the premises
unless the officers entered without further delay.” (Maj. opn., ante, at p. 12.) I
disagree with half of this statement. As noted above, I agree that the officers
reasonably could conclude that the commotion outside the door would alert the
occupants to the presence and purpose of the officers, but I strongly disagree that
the officers had a reasonable basis for concluding that such notice of the presence
and purpose of the officers would lead the occupants “to destroy or conceal any
drugs on the premises unless the officers entered without further delay.” (Ibid.)
The superior court found that the officers had no reason to conclude that
drugs were being destroyed or that the occupants were fleeing or arming
themselves: “They don’t know if there are drugs being flushed, they don’t know
that anybody is being armed. . . . They didn’t have any reason to believe she was
armed. They could see she wasn’t fleeing. They have the place surrounded.” As
the majority acknowledges, we are bound by such findings of fact that are
supported by substantial evidence. (Maj. opn., ante, at p. 7.) Because the officers
had no basis for believing that drugs actually were being destroyed, the majority is
forced to rely upon the mere possibility that this could happen. Such speculation
is not enough. “In the absence of some specific and articulable reasons that set the
present search apart from other narcotics searches, the mere possibility that
occupants were trying to frustrate the search does not excuse compliance with
section 1531. . . . If specific indications of arming or destruction of evidence were
not required, the exigent-circumstances exception would entirely consume the
notice and refusal requirement.” (People v. Gonzalez, supra, 211 Cal.App.3d
1043, 1050.)
6

In Gonzalez, the Court of Appeal ruled that an entry to serve a search
warrant was unlawful when officers in plain clothes knocked on the door of the
defendant’s residence shortly before 1 a.m. A woman’s voice asked “ ‘Who is
it?’ ” The officer answered, “ ‘Riverbank Police Department. Search warrant.’ ”
The officer heard nothing further and, after five seconds, kicked in the door,
hitting the defendant in the shoulder and knocking her to the ground. (People v.
Gonzalez, supra, 211 Cal.App.3d 1043, 1047.) The defendant testified that when
the officer identified himself, she answered, “ ‘just a minute’ ” and peered through
a hole in the door, seeing a man in camouflage pants. She was about to unlock the
door when it flew open. (Ibid.)
The Court of Appeal, in ruling that the entry was unlawful, recognized “the
conflicting policies that are at work in this area”: “On the inside of the door is a
lone woman with two daughters; she lives in an increasingly violent society and
she must decide at 12:50 a.m. whether to throw her door open to a band of armed
men who claim to be police but who are standing on her front porch in scruffy
street clothes. [Citation.] [¶] On the other side of the door stand officers who have
no doubts about their authority and purpose – they know they are not rapists or
killers, and that they are not common thugs despite their dress and the late hour of
their arrival. They believe they have a drug dealer cornered inside, and they know
there is someone behind the door who could let them in but who has not done so.
They know nothing else about what is happening in the house, but they know that
almost anything that is happening behind the closed door is likely to result in
injury to them or destruction of evidence. [¶] The interests at stake on both sides
of the door are quite important; and as the history of the notice and refusal of entry
requirement makes clear the interests are not easily reconciled.” (People v.
Gonzalez, supra, 211 Cal.App.3d 1043, 1049.)
7

Although it certainly is possible that the occupants of the residence in the
present case, having become aware that the police were there, might attempt to
escape or destroy evidence, that possibility always arises as soon as the police
announce their presence and demand entry, as they are required to do. In People
v. Gastelo (1967) 67 Cal.2d 586, 588, Chief Justice Traynor writing for a
unanimous court rejected the Attorney General’s argument that the police need not
comply with section 1531 when executing a search warrant for narcotics because
“narcotics violators normally are on the alert to destroy the easily disposable
evidence quickly at the first sign of an officer’s presence.” We stated: “No such
basis exists for nullifying the statute in all narcotics cases, and, by logical
extension, in all other cases involving easily disposable evidence. The statute
does not contain the seeds of such far-reaching self-destruction.” (People v.
Gastelo, supra, 67 Cal.2d at p. 588.)
Even when the police have good reason to believe that the premises to be
searched contain narcotics, and that the occupants are aware that the police are
present, the police still are required to give the occupants the opportunity to
respond to their demand for entry, unless the police have reason to believe that the
occupants actually are attempting to escape or destroy evidence. This distinction
may be subtle, but it is important. In the present case, there is nothing to indicate
that, even if the occupants had become aware of the presence of the police, they
were attempting to escape or destroy evidence. Accordingly, there were no
exigent circumstances that excused compliance with the requirement that the
officers give the occupants an opportunity to comply with the demand for
entrance.
The majority relies principally upon the Court of Appeal’s decision in
People v. Flores (1982) 128 Cal.App.3d 512, which the majority says is “very
close on point.” (Maj. opn., ante, at p. 8.) The circumstances in Flores were
8

similar to those in the present case but, as explained below, there is a significant
difference that distinguishes Flores from the present case. I also disagree with the
reasoning in Flores. The reasoning in Flores contains a flaw that, in my view, has
led astray the majority in the present case.
In Flores, sheriff’s deputies obtained a search warrant for the defendant’s
residence after a paid informant made a series of controlled purchases of heroin
there. As the officers waited outside, the informant purchased heroin a final time
from the defendant and his accomplice. The defendant then escorted the
informant back to the taxicab in which she had arrived while his accomplice
remained in the house. When the driver of the taxicab, who was a sheriff’s
deputy, revealed that the police were present, the defendant “ran back toward the
house.” Another officer yelled at the defendant to stop and placed him under
arrest and then, as a fellow officer held the defendant, went immediately to the
front door of the residence, which was open with the screen door ajar. He yelled
“ ‘Police officer with a search warrant. Demand an entry’ ” and entered one or
two seconds later. (People v. Flores, supra, 128 Cal.App.3d 512, 518-519.)
The Court of Appeal in Flores held that the entry was lawful, despite the
officer’s failure to wait for a response after announcing his presence and purpose,
reasoning that “[s]trict compliance [with section 1531] is more readily excused
where the police in good faith believe their presence and purpose to enter is
already known to the occupants [citations].” (People v. Flores, supra, 128
Cal.App.3d 512, 521.) This echoed an identical statement in Brown v. Superior
Court (1973) 34 Cal.App.3d 539, 543. The Courts of Appeal in both Flores and
Brown cited in support of this proposition our decision in People v. Rosales,
supra, 68 Cal.2d 299, 302, but we said nothing of the kind in Rosales.
In Rosales, we invalidated an arrest and resulting search because the
officers entered the residence without complying with the knock-notice
9

requirement of section 844. The officers went to the defendant’s residence to
arrest him for a parole violation. As they approached the residence, they looked
through the screen door and saw the defendant in the living room. They entered
and arrested the defendant, telling a girl they passed in the living room that they
were police officers, but failing to announce their purpose or demand entry. We
held that the fact that the officers told the girl that they were police officers was
not sufficient to comply with section 844 because they did not also explain their
purpose and demand admittance: “Such identification alone could constitute
substantial compliance with section 844 only if the surrounding circumstances
made the officers’ purpose clear to the occupants or showed that a demand for
admittance would be futile. There is nothing in the record to show that any of the
occupants or even the girl knew that the officers’ purpose was to arrest the
defendant or understood that they were demanding admittance.” (People
v. Rosales, supra, 68 Cal.2d 299, 302, fn. omitted.) We did not suggest in Rosales
that the circumstance that the occupants of a residence are aware of the presence
and purpose of the police excuses the requirement that the police demand
admittance and permit the occupants to respond to that demand before entering.
To the contrary, we held that the entry in Rosales was unlawful, recognizing that
section 844, like section 1531, “requires that an officer explain his purpose before
demanding admittance, not merely that he identify himself as an officer.” (People
v. Rosales, supra, 68 Cal.2d at p. 302.)
Although I find the reasoning in Flores to be flawed in this respect, I
believe the Court of Appeal may have reached the correct result in that case.
Unlike the present case, the officers in Flores may have had reason to believe that
an immediate entry into the residence was necessary to forestall the imminent
destruction of evidence. As noted above, the defendant in Flores had left his
residence, leaving his accomplice in the house and, upon learning that the police
10

were present, “ran back toward the house.” (People v. Flores, supra, 128
Cal.App.3d 512, 518.) The officer could reasonably have concluded that the
defendant’s purpose in running back to his residence was to destroy evidence or
escape apprehension. Because the defendant’s accomplice remained in the house,
the officer had reason to believe that it was necessary to enter the residence
immediately to prevent the defendant’s accomplice from accomplishing what the
defendant had just been prevented from doing.
The importance of the circumstance in Flores that the defendant ran when
he learned the police were present is demonstrated by comparing the decision in
Flores with the decision in People v. Neer (1986) 177 Cal.App.3d 991. Police
officers approached Neer’s home to execute a search warrant and encountered a
man working in the front yard. They detained the man (who the officers later
learned was Neer), shouting: “ ‘We’re the police department, don’t move . . . we
have a search warrant.’ ” (Id. at p. 994.) One of the officers then went to the front
door, which was open with the screen door closed. Seeing people inside, the
officer identified himself as a police officer, said he had a search warrant, and
immediately entered “because he believed the occupants had heard both
announcements and feared they would flee, destroy contraband or arm
themselves.” (Id. at p. 995.).
The Court of Appeal in Neer held that the narcotics found in the ensuing
search should have been suppressed because no exigent circumstances excused the
officer’s violation of section 1531. The court in Neer concluded that “nothing [the
officer] knew permitted an objectively reasonable belief exigent circumstances
existed.” (People v. Neer, supra, 177 Cal.App.3d 991, 995.) The court added:
“There was no suspicious activity by the occupants . . . . Neer’s detention in the
front yard cannot suffice to excuse compliance with the statute. Section 1531 was
violated.” (Id. at pp. 996-997.)
11

The difference between the decisions in Flores and Neer is that the
defendant in Flores began running when he learned the police were present, while
no similar facts appear in Neer. In this respect, there is no meaningful difference
between Neer and the present case. As in Neer, the officers in the present case
detained a suspect outside the entrance to the residence and, in doing so, may have
alerted the occupants to their presence and purpose. As in Neer, the officers in the
present case immediately identified themselves and their purpose and entered the
residence without giving the occupants an opportunity to respond because they
feared the occupants might arm themselves, destroy evidence, or run. As in Neer,
the officers in the present case violated section 1531.
The facts in the present case are nearly identical to those in Neer and differ
from those in Flores in an important respect. The person the officers encountered
outside defendant’s residence in the present case did not resist or attempt to enter
the residence or otherwise give the officers any reason to believe that destruction
of evidence was imminent. The encounter with the person outside the residence,
at most, served only to alert the occupants of defendant’s residence that the police
were present and intended to conduct a search. This may have obviated the need
for the officers to announce their presence and purpose, but it did not excuse the
officers from complying with the further requirement of section 1531 that they
demand admittance and permit the occupants an opportunity to respond to that
demand.
The decisions in which this court has found that exigent circumstances
excused compliance with knock-notice requirement have all differed markedly
from the present case. In People v. Maddox (1956) 46 Cal.2d 301, police officers
had watched the defendant’s residence for about a month and had seen known
narcotics users visit there. The officers arrested a man soon after he left the
defendant’s residence who told the officers he had just injected heroin while inside
12

the residence. They went to defendant’s door and knocked. A male voice said,
“ ‘Wait a minute’ ” and the officer heard “the sound of retreating footsteps. He
kicked the door open and rushed to the kitchen where he saw defendant with a
spoon in his hand running toward the bedroom.” (Id. at p. 303.)
This court rejected the defendant’s argument in Maddox that the arrest was
illegal because the officer did not comply with the knock-notice requirement of
section 844, stating: “When, as in this case, he has reasonable grounds to believe
a felony is being committed and hears retreating footsteps, the conclusion that his
peril would be increased or that the felon would escape if he demanded entrance
and explained his purpose, is not unreasonable.” (People v. Maddox, supra, 46
Cal.2d 301, 306, italics added.)
In People v. Tribble (1971) 4 Cal.3d 826, exigent circumstances excused
police officers’ failure to comply with the knock-notice requirement where they
were pursuing violent criminals who reportedly were armed and the officers heard
the sounds of running footsteps. The victim in Tribble had been kidnapped and
raped by two men, one of whom said he had a knife. After being released, the
victim reported to the police the license number and description of the vehicle the
men were driving. The vehicle was registered to the defendant. Officer Moen
went to the defendant’s apartment, saw the vehicle parked in the driveway, and
found the victim’s photograph album on top of the vehicle. Two men in a
Volkswagen that had been parked near the defendant’s vehicle “started to back out
and then drove rapidly forward and stopped.” (Id. at p. 833.) Other officers
arrested the two men and recovered a gun. Officer Moen went to the defendant’s
apartment “where he heard what sounded like running footsteps.” (Ibid.) The
officer forced open the door and arrested the defendant.
This court concluded that exigent circumstances excused the officer’s
failure to comply with the knock-notice requirement of section 844: “In the
13

present case, the violent character of the crimes involved, the victim’s report that
her assailants had a knife, the recovery of a gun from the Volkswagen, and the
sound of running footsteps within fully justified Officer Moen’s stated belief that
‘I felt that there was a possibility of bodily injury to myself or my partner if we
hesitated.’ Compliance with section 844 was therefore excused.” (People v.
Tribble, supra, 4 Cal.3d 826 at p. 833, italics added.)
In People v. Dumas (1973) 9 Cal.3d 871, 877, compliance with section
1531 was excused where the police serving a search warrant had been told by an
informant that the defendant possessed several firearms “and that he invariably
answered the door with a loaded gun in this hand.” In People v. Carrillo (1966)
64 Cal.2d 387, 392, an officer who had gone to the defendant’s residence to arrest
him for violating his parole on a narcotics offense, entered through a screen door
without complying with section 844 when he “saw defendant moving quickly
through the kitchen at about the same time that another officer knocked on the
front door.” (Italics added.)
No similar facts appear in the present case. Although the officers had
reason to believe that defendant possessed narcotics and may have become aware
that the officers were present and intended to search, they did not observe anyone
moving quickly within the residence, or hear the sound of running footsteps, or
have information that the occupants were armed. The superior court so found, and
we are bound by its finding of fact as it is supported by substantial evidence.
(Maj. opn., ante, at p. 7.) Even if the commotion that occurred outside the
entrance to defendant’s residence had obviated the need for the officers to knock
on the door and announce their intention to enter and conduct a search, they still
were obligated to wait a short time to permit the occupants to admit them
peacefully, or to refuse them admittance, before they could enter the residence.
(See United States v. Banks, supra, 540 U.S. 31, 33 [officers executing a search
14

warrant “called out ‘police search warrant’ and rapped hard enough on the door to
be heard by officers at the back door,” then waited 15 to 20 seconds before
entering].)
I dissent.
MORENO, J.
WE CONCUR: WERDEGAR, J.

*BLEASE, J.

*
Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
15



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Murphy
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 118 Cal.App.4th 821
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125572
Date Filed: November 28, 2005
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Larrie R. Brainard

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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


1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Laurel Nelson Smith
P.O. Box 398
Cotopaxi, CO 81223-0398
(719) 942-5267

Heather F. Crawford
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 525-4084

2


Opinion Information
Date:Docket Number:
Mon, 11/28/2005S125572

Parties
1The People (Plaintiff and Respondent)
Represented by Heather Ferrick Crawford
Office of the Attorney General
110 W "A" St #1100
San Diego, CA

2Murphy, Mildred (Defendant and Appellant)
Represented by Laurel Margaret Nelson
Attorney at Law
P O Box 398
Cotopaxi, CO


Disposition
Nov 28 2005Opinion: Reversed

Dockets
Jun 16 2004Petition for review filed
  by counsel for resp. (People)
Jun 16 2004Received Court of Appeal record
  1 doghouse
Jun 30 2004Answer to petition for review filed
  by counsel for defendant and appellant (Mildred Murphy)
Jul 21 2004Petition for review granted; issues limited (criminal case)
  The issues to briefed and argued are limited to the following issues: (1) Whether exigent circumstances justified officers' noncompliance with the knock-notice rule in conducting a probation search of defendant's residence, and (2) if not, whether the inevitable discovery doctrine applies to the knock-notice violation? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Aug 10 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Laurel Nelson Smith is hereby appointed to represent appellant on her appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Aug 12 2004Request for extension of time filed
  by respondent The People, asking for a 30-day extension to and including September 19, 2004, to file the opening brief.
Aug 25 2004Extension of time granted
  To September 20, 2004 to file Respondent's Opening Brief on the Merits.
Sep 9 2004Request for extension of time filed
  (in San Diego) by Respondent for 30 days to and including 10-20-2004, to file the opening brief on the merits
Sep 15 2004Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including 10-20-2004.
Oct 20 2004Opening brief on the merits filed
  In San Diego by counsel for Respondent {The People}.
Nov 1 2004Request for extension of time filed
  by Appellant: to file the answer brief on the merits. asking to Dec. 19, 2004.
Nov 3 2004Extension of time granted
  to Dec. 20, 2004 for appellant to file the answer brief on the merits.
Dec 20 2004Request for extension of time filed
  to Jan. 18, 2005, for appellant to file the answer brief on the merits.
Dec 23 2004Extension of time granted
  To January 18, 2005 to file appellant's answer brief on the merits.
Jan 18 2005Answer brief on the merits filed
  By counsel for appellant {Mildred Murphy}.
Feb 7 2005Reply brief filed (case fully briefed)
  Respondent's (People)
Aug 10 2005Case ordered on calendar
  9/13/05 @ 9am - San Francisco
Aug 26 2005Supplemental brief filed
  by respondent [ Filed in San Diego ]
Sep 2 2005Supplemental brief filed
  Appellant's
Sep 2 2005Received:
  Appellant's "Notice of Additional Authority ..."
Sep 13 2005Cause argued and submitted
 
Nov 28 2005Opinion filed: Judgment reversed
  Opinion by Chin, J. -----joined by George, C.J., Kennard & Baxter, JJ. Dissenting Opinion by Moreno, J. -----joined by Werdegar & Blease (CA 3 assigned) JJ.
Dec 13 2005Rehearing petition filed
  Mildred Murphy, appellant. Laurel Nelson Smith, Supreme Court Appointed Counsel.
Dec 14 2005Time extended to consider modification or rehearing
  to and including February 24, 2006
Feb 1 2006Rehearing denied
  Werdegar and Moreno, JJ., are of the opinion the petition should be granted. Chin, J., was absent and did not participate.
Feb 1 2006Remittitur issued (criminal case)
 
Feb 14 2006Received:
  receipt for remittitur from 4 DCA Div. One
May 1 2006Received:
  U.S.S.C. letter dated 4-26-2006, writ of certiorari petition filed 4-24-2006, placed on the docket 4-26-2006 as No. 05-10590.
Jul 5 2006Received:
  U.S.S.C. letter dated June 26, 2006, writ of certiorari denied.

Briefs
Oct 20 2004Opening brief on the merits filed
 
Jan 18 2005Answer brief on the merits filed
 
Feb 7 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website