30-second "knock notice" case in California

Declan McCullagh declan at well.com
Fri Nov 7 06:56:48 PST 2003

THE PEOPLE, Plaintiff and Respondent, v. JEAN MICHEL RABADUEX, Defendant 
and Appellant.



November 4, 2003, Filed

PRIOR HISTORY:  [*1]  APPEAL from a judgment of the Superior Court of San 
Joaquin County No. TF030882A. Richard Guiliani, Judge.


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.


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.




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.


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.


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.


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.)


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"].)


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

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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.

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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 

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

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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.

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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.)

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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.)

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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. 

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.



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 


The judgment is affirmed.

Blease, Acting P.J., and Davis, J., concurred.

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