THE PEOPLE, Plaintiff and Respondent, v. JEAN MICHEL RABADUEX, Defendant
and Appellant.
C041818
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
November 4, 2003, Filed
PRIOR HISTORY: [*1] APPEAL from a judgment of the Superior Court of San
Joaquin County No. TF030882A. Richard Guiliani, Judge.
DISPOSITION: Affirmed.
CORE TERMS: knock-notice, Fourth Amendment, knock, privacy, homeowner,
motion to suppress, occupant, door, infringed, announce, search warrant,
waited, bedroom, wait, deputy, electronic surveillance, destruction of
property, refused admittance, conversation, suppression of evidence,
execute, seizure, morning, search and seizure, privacy interest, police
entry, destruction, invaded, violent, right to privacy
COUNSEL: Peter Dodd, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Jo Graves, Senior Assistant Attorney General, Susan
Rankin Bunting, Acting Supervising Deputy Attorney General, Patrick J.
Whalen, Deputy Attorney General, for Plaintiff and Respondent.
JUDGES: ROBIE, J.; Blease, Acting P.J., and Davis, J., concurred.
OPINIONBY: ROBIE
OPINION: Defendant Jean Michel Rabaduex was charged with 199 offenses
arising out of his sexual acts with and electronic surveillance of his
live-in girlfriend's daughter. Defendant moved to suppress evidence
obtained from a search of his house because "the police did not comply with
knock and announce principles, particularly by failing to wait a sufficient
period of time after 'knock-notice' to infer a constructive refusal to
enter." The court denied defendant's motion. He subsequently pled guilty to
all counts and was sentenced to 35 years in prison.
On appeal, defendant contends the trial court erred in denying his motion
to suppress. [*2] Defendant argues that because police had reason to know
the only person at home was asleep, it was unreasonable for them to enter
the house only 30 seconds after first announcing their presence.
Because the only person home at the time of the entry was defendant's
girlfriend, we conclude defendant failed to show the violation of his
Fourth Amendment rights necessary to require suppression of the evidence
against him. Accordingly, the trial court did not err in denying
defendant's motion to suppress, and we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
I
Background
In September 2001, Deborah S. was living at a house in Tracy with her
14-year-old daughter C.S. and defendant. Defendant had lived with Deborah
S. for about eight years but was not married to her and was not C.S.'s father.
In late September 2001, defendant's nephew Richard moved into the house.
During his stay, Richard saw defendant touching C.S. inappropriately.
Richard also discovered that hidden cameras had been installed in C.S.'s
bedroom and bathroom. Richard found videotapes in defendant's bedroom
depicting defendant and C.S. engaging in sexual intercourse. Richard then
contacted [*3] the Tracy Police Department.
A search warrant was issued for the house, and the resulting search, which
was conducted on September 20, 2001, led to the seizure of numerous items,
including two computers and various videotapes. The two computers contained
over 1,000 images depicting child pornography. Police also determined that
the video surveillance cameras set up in C.S.'s bedroom and bathroom were
connected to a monitor in defendant's room.
Several days after the search, officers interviewed C.S. C.S. initially
told officers that she began having sex with defendant when she was about
12 years old. At the preliminary hearing, C.S. testified that she began
having sex with defendant when she was 14. She stated that she loved
defendant and that he was the only father she had ever known.
II
Suppression Hearing
Deborah S. is employed as a nurse and had worked the night shift before the
morning of the search. On the morning of the search, Deborah S. arrived
home at 8:30 a.m. and went to bed about 10:30 a.m. Before going to bed, she
spoke with defendant three or four times by telephone. The last call she
received from defendant that morning was at 9:43 a.m.
Deborah [*4] S. testified that she sleeps in the master bedroom at the top
of the stairs with the door closed and that her dog sleeps in the room with
her and barks whenever someone knocks on the door. There is a sign taped
over the doorbell which reads, "Day sleeper. Do not ring doorbell."
Deborah S. claimed that on the day police executed the search warrant, she
neither heard the police knocking nor her dog barking. She awoke from the
sound of her home alarm system and opened the bedroom door to find police
officers on the landing outside her bedroom.
A defense investigator testified that she went to the house with Deborah S.
and waited inside the bedroom with the dog while defendant's lawyer rang
the doorbell and knocked on the door. The investigator testified that the
dog barked in response to both the knock and the doorbell.
The parties stipulated that C.S. had given officers the key to the house on
the morning the warrant was executed. The parties also stipulated that the
police asked C.S. if anyone was home, and C.S. said, "'My mom, she's
sleeping.'" The prosecutor did not argue that C.S. gave the police consent
to enter the house.
Detective Daniel Schnepple of the Tracy Police Department [*5] testified
that on September 20, 2001, at approximately 11:30 a.m., he and more than
one-half dozen other officers approached defendant's two-story house.
Detective Schnepple recalled noticing a sign about a day sleeper. Detective
Shawn Steinkamp knocked on the door very loudly with his bare hand and
yelled, "Tracy Police Department. Search warrant. Demand entry." Detective
Steinkamp waited approximately five to eight seconds and then knocked again
and repeated the announcement. The officers waited approximately 20 more
seconds before entering the house with the key C.S. had given them.
Detective Schnepple testified that the total time from the first knock to
entry was roughly 30 to 35 seconds.
After entering the house, the officers looked around downstairs for
approximately 35 to 45 seconds, maybe longer, then continued upstairs to
find Deborah S. coming out of the master bedroom wearing a T-shirt and
removing a sleep mask from her face. Detective Schnepple testified that
Deborah S. appeared to be fumbling with earplugs; however, he never
actually saw any earplugs. Deborah S. testified that she never wears
earplugs because she needs to hear the phone ring in case of emergency. [*6]
The trial court found that officers waited approximately 30 to 35 seconds
after knocking and announcing their presence before entering the house and
concluded this was a sufficient wait during the middle of the day. The
court observed, "it may be that the officers constructively at least should
have known that there was a sleeping person there," but the court concluded
the officers did not have to wait longer based on that fact. The court
stated: "Should the police have . . . waited five minutes because that's
how much time it takes a sleeping person who happens to sleep in a certain
clothing configuration to get downstairs? No. You know, it's the
reasonableness of the police conduct to meet the policy generally of
noticing people that police are about to come into their house. Not of this
person specifically."
The trial court expressed reservation about allowing more time for people
with "do not disturb" or "day sleeper" signs to respond to police seeking
to execute search warrants, noting that drug dealers might place such signs
on their doors to buy themselves more time to destroy the evidence of their
crimes. The court concluded that the police "have to wait the appropriate
[*7] time" and that "the cases have fixed that somewhere around 30
seconds," which the court found was the amount of time the police waited in
this case. Accordingly, the court denied defendant's motion to suppress.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress
because the court improperly concluded officers waited a reasonable time
after knocking and giving notice of their presence and purpose before
entering the house to execute the search warrant. Defendant contends that
waiting only 30 to 35 seconds was unreasonable because officers knew the
occupant of the house was likely to be asleep and they had no reason to
make a quick entry. We conclude, however, that because the person who was
at home at the time of the entry was defendant's girlfriend, and not
defendant himself, the alleged knock-notice violation did not provide any
basis for suppressing evidence against defendant. Therefore, the trial
court did not err in denying defendant's motion to suppress.
I
Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we defer to
the trial court's findings of fact, both express and implied, if supported
by [*8] substantial evidence. However, we independently apply the
pertinent legal principles to those facts to determine as a matter of law
whether there has been an unreasonable search or seizure. (People v.
Miranda (1993) 17 Cal.App.4th 917, 922.)
II
The Knock-Notice Rule
Penal Code section 1531, which applies to the execution of search warrants,
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." "[A]n entry effected in violation of the provisions of this
statute renders any following search and seizure unreasonable within the
meaning of the Fourth Amendment." (Garcia v. Superior Court (1973) 29 Cal.
App. 3d 977, 980, 106 Cal. Rptr. 98.) As the United States Supreme Court
has declared, "the common-law knock and announce principle forms a part of
the Fourth Amendment reasonableness inquiry." (Wilson v. Arkansas (1995)
514 U.S. 927, 930 [131 L. Ed. 2d 976, 980, 115 S. Ct. 1914].) There is no
dispute in this case that the officers [*9] seeking to search defendant's
house gave notice of their authority and purpose, or that they "broke" into
defendant's house within the meaning of Penal Code section 1531 when they
used the key C.S. gave them to open the door. (See People v. Flores (1968)
68 Cal.2d 563, 567, 68 Cal. Rptr. 161, 440 P.2d 233 [entry by means of a
key constitutes a "breaking" within the meaning of Penal Code section
1531], overruled on other grounds in People v. De Santiago (1969) 71 Cal.2d
18, 28, fn. 7, 76 Cal. Rptr. 809, 453 P.2d 353.) The issue here is whether,
when the police entered the house, they had been "refused admittance."
"Section 1531 permits an officer executing a search warrant to break into
the premises only if he is refused admission after announcing 'his
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." (Jeter v. Superior Court (1983) 138 Cal. App. 3d
934, 937, 188 Cal. Rptr. 351, italics added. [*10] )
There need not be an explicit refusal of admittance before officers are
entitled to enter a house to execute a search warrant. "The failure to
respond within a reasonable time under the circumstances may constitute a
refusal within the meaning of the statute." (People v. Gallo (1981) 127
Cal. App. 3d 828, 838, 179 Cal. Rptr. 662.) "There is no convenient test
for measuring the length of time necessary to support an implied refusal."
(People v. Neer (1986) 177 Cal. App. 3d 991, 996, 223 Cal. Rptr. 555.)
"[T]he test is whether 'the circumstances were such as would convince a
reasonable man that permission to enter had been refused.'" (United States
v. Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 11, quoting McClure v.
United States (9th Cir. 1964) 332 F.2d 19, 22; see also People v. Neer,
supra, 177 Cal. App. 3d at p. 996 [question is whether there are "specific
facts, such as shouting or running, to support an objectively reasonable
belief the occupants had refused entry"].)
III
Defendant's Right to Raise the Alleged Knock-Notice Violation
Because it was Deborah S., not [*11] defendant, who was at home when the
police allegedly entered the house without waiting to be refused
admittance, we asked the parties to brief the issue of whether defendant
had "standing" to challenge the alleged failure of the police to comply
with knock-notice requirements. Defendant contends the "standing" issue
cannot be raised for the first time on appeal and, in any event, "a
temporarily absent resident [has] 'standing' to object to an unannounced
entry into the premises." The People contend that phrasing the issue in
terms of "standing" "only confuses the analysis." According to the People,
"the pertinent inquiry is whether this particular search . . . was
reasonable as to defendant, an absent resident with no ownership interest
in the property." n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The record of the suppression hearing is actually silent as to whether
defendant had an ownership interest in the house. Deborah S. testified the
mortgage on the house was in her name, and she qualified for the mortgage
based on her income alone. While this evidence supports the inference that
Deborah S. alone owned the house, it does not compel that conclusion. In
any event, for reasons set forth below, the ownership issue is irrelevant.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*12]
For the reasons set forth below, we conclude that because the alleged
knock-notice violation in this case was not a violation of defendant's
Fourth Amendment rights, his motion to suppress was properly denied.
"'Fourth Amendment rights are personal rights which . . . may not be
vicariously asserted.'" (Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [58
L. Ed. 2d 387, 394, 99 S. Ct. 421], quoting Alderman v. United States
(1969) 394 U.S. 165, 174 [22 L. Ed. 2d 176, 187, 89 S. Ct. 961].) "[S]ince
the exclusionary rule is an attempt to effectuate the guarantees of the
Fourth Amendment [citation], it is proper to permit only defendants whose
Fourth Amendment rights have been violated to benefit from the rule's
protections." (Rakas, at p. 134 [58 L. Ed. 2d. at p. 395].) Thus, the
question in a case such as this is "whether the challenged search . . .
violated the Fourth Amendment rights of [the] criminal defendant who seeks
to exclude the evidence obtained during [the search]. That inquiry in turn
requires a determination of whether the disputed search and seizure has
infringed an interest of the defendant which the [*13] Fourth Amendment
was designed to protect." (Id. at p. 140 [58 L. Ed. 2d. at p. 399].)
With the question before us properly framed, we reject defendant's
assertion that the issue cannot be raised for the first time on appeal. The
issue we confront -- whether the challenged search violated defendant's
Fourth Amendment rights -- is not new; it is the fundamental issue
presented by defendant's motion to suppress. Subdivision (a)(1)(B)(iv) of
Penal Code section 1538.5 authorizes a defendant to "move . . . to suppress
as evidence any tangible or intangible thing obtained as a result of a
search or seizure" when "[t]he search or seizure with a warrant was
unreasonable because . . . [P] [t]he method of execution of the warrant
violated federal or state constitutional standards." As the moving party,
it was defendant's burden to prove the police entry violated his
constitutional rights. (See People v. Moreno (1992) 2 Cal.App.4th 577,
582.) If he failed to carry this burden, then the motion to suppress was
properly denied, regardless of the reason for the trial court's ruling.
"'"No rule of decision is better or more firmly [*14] established by
authority, nor one resting upon a sounder basis of reason and propriety,
than that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon
any theory of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the trial court to
its conclusion." [Citation.]'" (People v. Zapien (1993) 4 Cal.4th 929, 976,
846 P.2d 704, quoting D'Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 19, 112 Cal. Rptr. 786, 520 P.2d 10.)
Under the foregoing rule, "a respondent [on appeal] may assert a new theory
to establish that an order was correct on that theory 'unless doing so
would unfairly prejudice appellant by depriving him or her of the
opportunity to litigate an issue of fact.'" (Bailon v. Appellate Division
(2002) 98 Cal.App.4th 1331, 1339.) Relying on this exception, defendant
contends "this court does not have all the facts necessary to make a
determination as to whether [he] lacked 'standing' to object to the failure
of the police to comply with knock-and-announce rules" [*15] because
"trial counsel was not put on notice of the 'standing' issue so as to be
able to develop whether [defendant] was within earshot or 'eyeshot' of the
home."
We disagree. In his written motion to suppress, defendant vaguely asserted
that the police entry into the house violated knock-notice requirements
because police entered "without giving adequate notice to the resident
therein." In its written opposition to the motion, the prosecution asserted
the search occurred "while the defendant was at work" and while Deborah S.
was at home. At the subsequent hearing, defendant offered no evidence to
dispute the assertion that he was at work. Instead, defendant's motion was
premised on the ground that police did not give Deborah S., the "sleeping
occupant [who] they knew or should have known was present in that home and
asleep time to get down and answer the door." Furthermore, the evidence
showed that from the time she arrived home from work at about 8:30 a.m.
until 9:43. a.m., when she started to get ready for bed, Deborah S.
received several telephone calls from defendant -- suggesting he was
nowhere near the house. Under these circumstances, defendant's belated
suggestion [*16] that he might have been able to prove he was "within
earshot or 'eyeshot' of the home" when the police arrived about 11:30 that
morning does not persuade us that defendant was denied a fair opportunity
"to develop the pertinent facts" before the trial court.
Having concluded the issue is properly before us, we turn to the question
of whether defendant's Fourth Amendment rights were violated by the police
conduct in this case.
Four primary reasons underlie the knock-notice rule in California: "'"(1)
The protection of the privacy of the individual in his home [citations];
(2) the protection of innocent persons who may also be present on the
premises . . . [citation]; (3) the prevention of situations which are
conducive to violent confrontations between the occupant and individuals
who enter his home without proper notice [citations]; and (4) the
protection of police who might be injured by a startled and fearful
householder."'" (People v. Hoag (2000) 83 Cal.App.4th 1198, 1203.)
Additionally, the privacy interest underlying the knock-notice rule has
several aspects. "First, [the knock-notice rule] protects the homeowner
from the outrage of having his ' [*17] castle' suddenly and violently
broken into. [Citations.] . . . [P] Second, the rule may prevent
embarrassing circumstances resulting from the unexpected exposure of
private activities. [Citations.]" (United States v. Bustamante-Gamez,
supra, 488 F.2d at pp. 11-12.) Third, because officers must wait to be
refused admittance even under circumstances where immediate entry will not
require the destruction of property, the "refused admittance" aspect of the
knock-notice rule gives the homeowner an opportunity to consent to the
entry of his or her home, rather than suffering the indignity of having law
enforcement officers both enter and search without his or her permission. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 By referring to the homeowner's consent, we do not mean to suggest that
the search pursuant to the warrant is transformed into a search pursuant to
the homeowner's consent. The consent to which we refer is the homeowner's
consent -- or rather, his opportunity to consent -- to the officers' entry
to the property not to the search of it.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*18]
As we have explained, the alleged knock-notice violation here was the
failure of police to wait a reasonable time before entering the house.
Assuming for the sake of argument the police did not wait a sufficient
amount of time, and their premature entry into the house infringed on the
privacy interests protected by the knock-notice rule, those interests were
not those of defendant, because he was not home at the time and therefore
was in no position either to be embarrassed by a premature entry or to let
the police into the house in response to their demand. The only occupant of
the house at the time of the search was Deborah S. The infringement on
Deborah's rights to avoid embarrassing circumstances and to have a
reasonable opportunity to let the police in, however, provides no basis for
the suppression of evidence to be used against defendant. To successfully
suppress evidence against him, defendant had to show that his Fourth
Amendment rights were violated by the actions of the police. He failed to
do so.
We note that our conclusion is at odds with the conclusion in People v.
Hoag on the same point. In Hoag, the court noted the rule that a defendant
moving [*19] to suppress evidence "may not vicariously challenge the
alleged violation of another's interests." (People v. Hoag, supra, 83
Cal.App.4th at p. 1203.) Nonetheless, under circumstances similar to those
in this case, n3 the court concluded that the defendant, who was not home
at the time of the police entry, had the right to challenge the alleged
knock-notice violation that occurred in his absence. (Id. at pp.
1203-1207.) The court based its conclusion on the defendant's "personal
interest in the safety of the mother of his child, who was present when the
officers entered his residence," and on the defendant's "right to be
protected from the unnecessary destruction of his property." (Id. at p. 1205.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
N3 In Hoag, sheriff's deputies served a search warrant on the defendant's
home one evening while he was away. (People v. Hoag, supra, 83 Cal.App.4th
at p. 1202.) A deputy knocked and announced, "'Sheriff's Department, search
warrant, we demand entry.'" (Ibid.) After hearing no response following a
second knock and announcement, a second deputy turned the door handle and
the deputies entered. (Ibid.) The entry occurred approximately 15 to 20
seconds after the deputies' first knock. (Ibid.) Deputies found the
defendant's fiance inside studying. (Id. at pp. 1201-1202.) They searched
the residence and found marijuana in the garage. (Id. at p. 1202.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*20]
We disagree with the Hoag court that the right to be protected from the
unnecessary destruction of property provides a basis for a suppression
motion based on a knock-notice violation where no such destruction occurs.
To the extent knock-notice requirements protect a homeowner's right to
avoid the unnecessary destruction of his property, that right is not even
implicated -- let alone infringed -- when police entry occurs through an
unlocked door (as in Hoag) or, as here, through a locked door opened with a
key. Of course, such an entry may infringe the homeowner's right to
privacy, or some other interest protected by knock-notice requirements. If
that is the case, however, then the analysis properly focuses on whether
the infringement of those other interests justifies the suppression of
evidence. We can perceive no valid basis for holding that a person whose
property is not damaged in the slightest by a premature entry in violation
of knock-notice requirements is nonetheless entitled to the suppression of
evidence seized following the entry because one of the purposes of
knock-notice requirements in the abstract is the protection against the
unnecessary destruction of property. [*21]
We find the decision of the Arizona Court of Appeals in State v. Papineau
(1985) 146 Ariz. 272 [705 P.2d 949] persuasive on this point. In Papineau,
"officers waited five to ten seconds after knocking and announcing before
entering, and . . . they entered [through an unlocked door] only after
hearing 'rustling' movements within," while the defendant was not home.
(Id. at p. 950.) In concluding the defendant had no "standing" to assert
the knock-notice violation, the appellate court succinctly wrote: "Only one
whose own rights have been violated may seek the remedy of exclusion.
[Citation.] 'The right which knock and announce rules provide occupants is
the right to be warned that their privacy is about to be legally invaded.'
[Citation.] Also important are avoidance of violent confrontations
attendant to unannounced entries, prevention of destruction of property,
and preventing unexpected exposure of private activities. [Citations.]
Entry through an unlocked door involves no destruction of property. While
those present may have felt their privacy unjustifiably invaded and while
the entry may have heightened the risk of violent confrontation, only
[*22] those present would have rights that would be violated. One not
present at the entry would lose nothing. No rights of the defendant having
been invaded, he has no standing to assert the illegality of the entry."
(Id. at pp. 950-951, italics omitted.)
As we have noted, the question in a case such as this is "whether the
disputed search and seizure has infringed on an interest of the defendant
which the Fourth Amendment was designed to protect." (Rakas v. Illinois,
supra, 439 U.S. at p. 140 [58 L. Ed. 2d. at p. 399].) An entry that does
not destroy any property does not infringe on the defendant's right to
avoid the unnecessary destruction of his property. Therefore, if such an
entry is to provide a basis for the suppression of evidence, suppression
can be justified only because the entry infringed on some other interest
protected by knock-notice requirements.
We also disagree with the Hoag court's conclusion that an absent
defendant's "personal interest in the safety of [another] who was present
when the officers entered his residence" provides a valid basis for a
suppression motion based on a knock-notice violation. (People v. Hoag,
supra, 83 Cal.App.4th at p. 1205.) [*23] In reaching that conclusion, the
Hoag court relied on the decision of the Arkansas Supreme Court in Mazepink
v. State (1999) 336 Ark. 171 [987 S.W.2d 648]. In Mazepink, the court
concluded that because "at least one person was present to comply with the
officers' request for entry so that they could execute their search
warrant," "[i]t seems irrelevant . . . that Mazepink was not actually
present at the time of entry; his standing to seek exclusion of the
evidence obtained after the search is grounded in his right to exclude
others and to be free from illegal police invasion of his privacy in his
residence. Furthermore, Mazepink's legitimate expectation of privacy in his
residence encompasses the right to expect not only privacy for himself, but
for his family and invitees, including his live-in girlfriend . . . and her
daughter." (Id. at p. 652.) Thus, the Mazepink court concluded that the
defendant's legitimate expectation of privacy for himself and for his
family and invitees in his home gave him the right to assert that a
knock-notice violation that occurred in his absence violated his Fourth
Amendment rights.
In support of its conclusion, [*24] the Mazepink court cited the United
States Supreme Court's decision in Alderman v. United States, supra, 394
U.S. 165, 179, fn. 11 [22 L. Ed. 2d at p. 190]. (Mazepink v. State, supra,
987 S.W.2d at p. 652.) Alderman, however, did not involve a knock-notice
violation, but instead involved illegal electronic surveillance. In
Alderman, the court reiterated that "Fourth Amendment rights are personal
rights which, like some other constitutional rights, may not be vicariously
asserted," and went on to conclude that a defendant "would be entitled to
the suppression of government evidence originating in electronic
surveillance violative of his own Fourth Amendment right to be free of
unreasonable searches and seizures . . . if the United States unlawfully
overheard conversations of [the defendant] himself or conversations
occurring on his premises, whether or not he was present or participated in
those conversations." (Alderman v. United States, supra, 394 U.S. at pp.
174, 176 [22 L. Ed. 2d at pp. 187-188].) The court explained that the
defendant's presence was not necessary to render the electronic
surveillance [*25] a violation of his Fourth Amendment rights because
"[t]he rights of the owner of the premises are as clearly invaded when the
police [illegally] enter and install a listening device in his house as
they are when the entry is made to undertake a warrantless search for
tangible property; and the prosecution as surely employs the fruits of an
illegal search of the home when it offers overheard third-party
conversations as it does when it introduces tangible evidence belonging not
to the homeowner, but to others." (Id. at pp. 179-180 [22 L. Ed. 2d at p.
190].)
That the Fourth Amendment protects a person against the unlawful electronic
surveillance of his house, even when he is absent, does not mean, as the
Mazepink court concluded, that the person has "the right to expect . . .
privacy . . . for his family and invitees," (Mazepink v. State, supra, 987
S.W.2d at p. 652) such that a knock-notice violation that occurs in the
person's absence necessarily constitutes a violation of his Fourth
Amendment rights. Again, we point out that the pertinent question in a case
such as this is "whether the disputed search and seizure has infringed
[*26] an interest of the defendant which the Fourth Amendment was designed
to protect." (Rakas v. Illinois, supra, 439 U.S. at p. 140 [58 L. Ed. 2d at
p. 399], italics added.) The court in Alderman did not hold that a
defendant has a legitimate interest in the privacy of others present in his
house. Rather, the court held that unlawful electronic surveillance of a
house violates the homeowner's legitimate right to privacy in his own
house, even when the "fruit" of the unlawful search is a conversation that
occurs between two other people when the homeowner is not even home.
Furthermore, the legitimate expectation of privacy a person has for himself
in his own house -- which was the interest at issue in Alderman -- is not
implicated by a knock-notice violation that occurs when the person is
absent. The Alaska Court of Appeals offered a cogent explanation of this
point in State v. Johnson (Alaska.Ct.App. 1986) 716 P.2d 1006. In Johnson,
the appellate court concluded the trial court had erred in suppressing
evidence against two defendants (Robert Johnson and Michael Davey) who were
not present when the knock-notice violation occurred. [*27] (Id. at p.
1010.) In explaining its conclusion, the court noted "the purposes of knock
and announce requirements [are] as follows: [P] '(1) to protect the
occupant's right to privacy . . .; (2) to safeguard the police who might be
mistaken for prowlers and be shot . . .; and (3) to protect other persons
who might be injured by violent resistance to unannounced entries. . . .'"
(Id. at p. 1009, quoting Davis v. State (Alaska 1974) 525 P.2d 541,
544-545.) The court then explained: "Since Johnson and Michael Davey were
not present, they were not vulnerable to injury as a result of any violent
resistance [the occupant] might have interposed to the officers' entry.
Johnson and Michael Davey had the same interest as any other citizen in
preventing injury to the police officers. Thus, if the knock and announce
rules were intended to protect them, it must be because of the first
purpose announced in Davis, protection of the occupant's right to privacy.
We assume, for purposes of this case, that Robert Johnson and Michael Davey
had privacy interests protected by the fourth amendment in materials stored
on the premises. Johnson argues [*28] that this privacy interest is
identical to the privacy interest protected by the knock and announce
rules. We disagree. As the Oregon Supreme Court pointed out in State v.
Valentine, 264 Or. 54, 504 P.2d 84 (1972), cert. denied, 412 U.S. 948, 93
S. Ct. 3001, 37 L. Ed. 2d 1000 (1973), 'The only right of privacy protected
by the announcement requirement is the right to know who is entering, why
he is entering, and a few seconds to prepare for his entry.' Id. at 87. The
knock and announce rules are not intended to protect an absent co-tenant's
possessory and privacy interests in items stored on the premises. The
requirement that the police obtain a warrant and limit their search to the
scope of the warrant protects these interests. Consequently, since the
knock and announce rules were not enacted to protect the rights of those
who are not present when a warrant is executed, it necessarily follows that
they cannot complain of a violation of those rules." (State v. Johnson,
supra, 716 P.2d at pp. 1009-1010.)
Johnson illustrates the proposition that the privacy interests infringed by
a knock-notice violation are not [*29] the same as the privacy interest
infringed by an invalid search that should not have occurred at all. In
determining whether a knock-notice violation warrants the suppression of
evidence, it is critical to focus on the interests protected by
knock-notice requirements and whether any of those interests belong to the
defendant seeking suppression. The Mazepink court failed to do this, and
the Hoag court adopted the Mazepink court's faulty reasoning. Thus, we
cannot follow Hoag on this point.
IV
Conclusion
In summary, we conclude the search of the house did not violate defendant's
Fourth Amendment rights because defendant was not present when the police
made their allegedly premature, but nondestructive, entry into the house,
and therefore no interest of defendant was infringed by the entry.
Accordingly, the trial court did not err in denying defendant's motion to
suppress.
DISPOSITION
The judgment is affirmed.
Blease, Acting P.J., and Davis, J., concurred.
