P. v. Ruiz

Filed 8/6/07 P. v. Ruiz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendants Miguel Angel Ruiz (Ruiz) and Juana Rodriguez Garcia (Garcia) were charged by separate informations with felony possession of cocaine for sale (Health & Saf. Code, 11351) and misdemeanor child endangerment (Pen. Code, 273a, subd. (b)).[1] Ruiz was also charged with felony possession of heroin (Health & Saf. Code, 11350 subd. (a)).

Garcia filed a motion to set aside her information pursuant to sections 995 and 739. The court granted the motion as to the charged violation of section 273a, subdivision (b), but denied the motion as to the charged violation of Health and Safety Code section 11351.

Ruiz filed a motion to suppress evidence pursuant to section 1538.5 based upon violations of the knock-notice rule of section 1531. The trial court granted Garcias request to join in Ruizs motion. The trial court subsequently granted the motion to suppress and then dismissed all counts against Ruiz and Garcia pursuant to section 1385.

The People appeal the superior courts dismissal order pursuant to section 1238, subdivision (a)(7). The People contend that the police in this case did not violate the knock-notice rule. Further, they contend that, even if there was a violation of the knock-notice rule, the evidence was improperly suppressed.

We find that there was no knock-notice violation and that, even if there was, the evidence should not have been suppressed. Accordingly, we will reverse the order of dismissal and remand the matter to the trial court with directions to deny the motion to suppress.

BACKGROUND

Defendants moved to suppress all testimony and evidence pertaining to the . . . search . . . that commenced at approximately 11:19 p.m., on January 19, 2006, at 195 E. Front Street A, Watsonville . . . along with any and all testimony, and any [and] all tangible and intangible evidence, respecting any and all conversations, observations and events that occurred at such time, and all fruits thereof. The motion was based on all authorities incorporated in the notice of the motion; all other pleadings, records, and files; and any evidence to be presented at the suppression hearing.

The Suppression Hearing Testimony

At 11:19 p.m. on January 19, 2006, five police officers from the Watsonville Police Department served a search warrant at 195 East Front Street, Apartment A. Officer Prigge testified regarding the following sequence of events during service of the search warrant. A ruse was created in which one of the officers, Officer Gombos, wore a jacket over her uniform as a disguise and approached the front door. The remaining officers waited at the bottom of a landing that had about five wooden steps. In this position, the officers were about twelve feet away from the doorway. Gombos knocked on the door twice. Somewhere around forty-five seconds after the second knock, Prigge heard the dead bolt unlock and then it sounded like the door opened. After hearing Gombos begin a conversation with Ruiz, Prigge started coming around up the stairs. Gombos stepped out of the way to allow Prigge and the other officers through. Prigge testified, I began announcing myself in Spanish as I came up the stairs onto the front porch landing. His announcements included that we were the police, that we had a search warrant and to open the door. His announcements were made as he was either just hitting the stairs or just about to hit the stairs. The bottom stair was maybe nine, eight feet from the doorway. The announcements were completely finished before Prigge crossed the threshold. Prigge estimated that the door was either open all the way or maybe a foot away from being open all the way before the officers entered. Prigge was the first officer to enter the residence and the other officers followed him up the stairs. Ruiz looked startled and backed away from the door as the police entered the residence. Ruiz did not attempt to close the door after it was opened. Prigge explained that after entering, [I] ordered [Ruiz] to the ground. Im not sure whether he didnt understand me or he was just so stunned, but he didnt get down on the ground by himself so I pushed him down to the floor. The officers then proceeded to search the residence. Garcia and her toddler were the only other people in the residence.

Ruiz also testified regarding the events that occurred during the service of the search warrant. He testified that he was watching television when he heard a knock at the front door. He answered the door for Officer Gombos, but only opened the door just about a foot wide. Through the opening, he could see Gombos, but not any of the officers behind her. He testified, I realized that the police were coming when [Gombos] moved to one side and they said Search, search, and they came up. I heard them say search, search, and thats when [Gombos] moved. Ruiz did not see the police officers before Gombos moved out of the way and explained that he recognized them as police officers, [w]hen they entered, when they pushed the door.

Officer Prigge testified regarding the reasons he chose to employ a ruse to serve the search warrant. He explained that the police had information that cocaine that was supposed to be packaged for ready sales in small bindles were supposed to be located in a cup near the back door in somewhat of a higher place like a ledge or a cupboard. The rest of the narcotics were supposed to be kept somewhere else in the house. Unknown where, though. Prigge testified, It wasnt really the location [of the cocaine] that would raise [a concern about possible destruction of evidence]. Its just my experience that if given time and opportunity, the drugs will generally get flushed. Prigges source of heightened concern for destruction of the evidence in this case, compared to other narcotics search warrants, came from the fact that the home was a two-story residence and that if a person were to run upstairs and barricade themselves in the bathroom, it would give them more time because it would take us more time to get up the stairs.

The Trial Courts Ruling

On April 6, 2006, the trial court granted the motion to suppress. The court first recited its understanding of the facts stating, [Gombos] attracts someone to the door . . . on the basis that theyre inquiring for social purposes . . . and bang, bang, officers are in the door. Were talking a matter of probably a second or two before the officers are in the door and physically on Mr. Ruiz. The court found that the ruse did not meet the knock-notice requirement because [n]one of the factors that the Court would take into consideration that would justify the minimization or avoidance of the knock-notice requirement are present here, with the one exception that this is a . . . narcotics . . . warrant. The court explained that the fact that a warrant is for a narcotics case is not a factor, in and of itself, to justify avoidance or minimization of the . . . knock-notice requirement. The court further explained that theres no indication from the record that these folks are armed, that theres a history of violence in the household, that one of them is on parole, [or] that theres prior felony violations.

On May 1, 2006, the People informed the court that they were unable to proceed. The court ordered the matters dismissed.

ANALYSIS

Standard of Review

The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Knock-Notice Violation

The People contend that use of the ruse to obtain a non-forcible entry into the house substantially complied with the purpose of the knock-notice statute, making the entry lawful. They also contend that the recent decision in Hudson v. Michigan (2006) ___ U.S. ___ [126 S.Ct. 2159] (Hudson), created a bright-line rule and suppression of evidence is not appropriate in cases involving a knock-notice violation where the police have a valid warrant. Defendants respond that the police violated the knock-notice rule by entering the residence before identifying themselves as police and explaining their purpose. They argue that the use of a ruse does not excuse the requirement of knock-notice absent exigent circumstances. Defendants also argue that the decision in Hudson is not a bright-line rule and that the facts of the instant case are distinguishable from Hudson.

The trial court suppressed the evidence pursuant to section 1538.5. Subdivision (a)(1)(B)(iv) of this section provides that a defendant may move for the suppression of any evidence obtained as a result of a search that is unreasonable because the method of execution of the warrant violated federal or state constitutional standards. Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution. (People v. Banks (1993) 6 Cal.4th 926, 934.) [T]he touchstone of the Fourth Amendment is reasonableness. [Citation.] Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. (Ohio v. Robinette (1996) 519 U.S. 33, 39.) The United States Supreme Court has held that the common-law principle of announcement . . . is an element of the reasonableness inquiry under the Fourth Amendment and that the method of an officers entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search or seizure. (Wilson v. Arkansas (1995) 514 U.S. 927, 934.)

Section 1531 states, 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. Section 1531 allows police officers to commit a breaking in order to enter a house once they have provided notice and stated their purpose. This is referred to as the knock-notice rule. (People v. Murphy (2005) 37 Cal.4th 490, 492 (Murphy).)

Recently, the United States Supreme Court explained the purposes and policies of knock-notice rules in Hudson, supra, 126 S.Ct. 2159. The Court found that knock-notice statutes seek to protect three primary interests: (1) [T]he protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident . . . [(2)] [T]he protection of property . . . occasioned by forcible entry . . . [and (3)] [T]hose elements of privacy and dignity that can be destroyed by a sudden entrance. . . . In other words, it assures the opportunity to collect oneself before answering the door. (Id. at p. 2165.)

In Hudson, while serving a valid warrant, the police announced their presence, but waited only a short time - perhaps three to five seconds, . . . before turning the knob of the unlocked front door and entering the residence. (Hudson, supra, 126 S.Ct. at p. 2162.) Inside the residence [l]arge quantities of drugs were found, including cocaine rocks in [the defendants] pocket and [a] loaded gun . . . lodged between the cushion and armrest of the chair in which [the defendant] was sitting. (Ibid.) Hudson asserted that there was a knock-notice violation and moved to suppress the evidence based on a violation of his Fourth Amendment rights. The trial court granted the motion. The Michigan Court of Appeals reversed. Hudson was later convicted of drug possession and the conviction was affirmed on appeal. (Ibid.) The United States Supreme Court upheld the conviction, finding that the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial. . . . Resort to the massive remedy of suppressing evidence of guilt is unjustified. (Id. at p. 2168.) [E]xclusion may not be premised on the mere fact that a constitutional violation was a but-for cause of obtaining evidence. (Id. at p. 2164.) Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house. (Ibid.)

Other knock-notice cases subsequent to Hudsonhave applied its holding as a bright-line rule against suppression of evidence based on knock-notice violations. (See e.g., United States v. Ankeny (2007) ___ F.3d ___, ___ [2007 U.S. App. LEXIS 14350 at pp. 11-12] [The Supreme Court made it clear that, because the knock-and-announce rule protects interests that have nothing to do with the seizure of . . . evidence, the exclusionary rule is inapplicable to knock-and-announce violations.]; United States v. Snow (2006) 462 F.3d 55, 61 [Snow is not entitled to the exclusionary remedy he seeks following the United States Supreme Courts recent decision in Hudson.]; In re Frank S. (2006) 142 Cal.App.4th 145.)

The defendant in In re Frank S. was a parolee who had no legitimate expectation of privacy against warrantless arrests, even in the home. (Id. at p. 151.) The police entered a house the defendant was visiting without providing knock-notice, arrested the defendant, searched him, and found marijuana. (Id. at p. 149.) Defendant conceded that the warrantless search was lawful, but argued that there had been a knock-notice violation. (Id. at p. 151.) The court found that based on Hudson, Officer Pearmans entry in violation of the knock-and-announce rule did not implicate defendant's interest in preventing the government from seeing the drugs in his jacket pocket and exclusion of the evidence is not justified. (Id. at p. 152.)

Hudsons analysis of the objectives of knock-notice provides guidance in the instant case regarding whether defendants Fourth Amendment rights were violated. The California Supreme Court held in People v. Jacobs (1987) 43 Cal.3d 472, 482-483, that actual compliance in respect to the substance essential to every reasonable objective of the statute . . . [citation] is sufficient for compliance with the knock-notice statute. And, the absence of knock-notice does not make the entry unreasonable for Fourth Amendment purposes if the policies underlying the knock-notice requirements were served. (People v. Hoag (2000) 83 Cal.App.4th 1198, 1208.)

Here, the use of a ruse successfully met the objectives of the knock-notice rule detailed in Hudson, supra, 126 S.Ct. at p. 2165. Life and limb were protected because the ruse gave Ruiz notice that someone was at the door and eliminated the need for him to defend himself against a surprise intruder. Property was protected when Ruiz voluntarily opened the door in response to the ruse and the police did not have to force entry. And lastly, privacy and dignity were protected because Ruiz had the opportunity to collect himself before he opened the door.

The California Supreme Court has held that knock-notice consists of three steps and generally requires police to identify themselves, explain their purpose, and demand admittance before they can enter a house to perform a search. (Murphy, supra,37 Cal.4th at p. 495.) In the instant case, the trial court found that after using a ruse to get Ruiz to open the door, the police entered without identifying themselves and explaining the purpose of their demand for admittance. Ruiz testified that he only recognized that the men were police officers as they were entering the residence. However, section 1531 is not violated if entry into a residence does not require a breaking. (People v. Peterson (1970) 9 Cal.App.3d 627, 631.)

The United States Supreme Court addressed the issue of what constitutes a breaking in relation to the federal knock-notice statute, section 3109 of Title 18 of the United States Code, and explained that it  seems to be the same as in burglary: lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house, -- even a closed screen door . . . is a breaking. . . . [citation]  (Sabbath v. United States (1968) 391 U.S. 585, 590, fn. 5.) Significantly, the Court added, We do not deal here with entries obtained by ruse, which have been viewed as involving no breaking. (Id. at p. 590, fn. 7.)

Employment of a ruse to obtain consent to enter is immaterial where officers have a right to enter and search without permission pursuant to a valid search warrant. (People v. McCarter (1981) 117 Cal.App.3d 894, 906 (McCarter).) In McCarter, the police employed a ruse to get the defendant to open the door. When defendant came to the door and inquired who was outside, one of the police officers responded, Mike, and explained that he was a neighbor. (Id. at p. 903.) When there was no further response from inside the house, the police waited 20 to 30 seconds, announced that they were police and had a search warrant, and kicked in the door. (Ibid.) The defendant asserted that the warrant was improperly executed. The appellate court disagreed and explained that use of a ruse was an appropriate method to gain entry and did not require an announcement. (Id. at p. 906.) When the use of a ruse was unsuccessful in that case, the officers then properly announced themselves and entered by force. (Ibid.)

McCarter stands for the proposition that officers may use a ruse to gain entry when they have authority to enter under a valid search warrant. Here, the police had a valid search warrant for defendants home. The use of the ruse to entice Ruiz to open the front door did not invalidate their authority to search the premises under the warrant. Ruiz voluntarily opened the front door, spoke to Officer Gombos, and did not attempt to close the door when the other officers began to enter. Since the officers made their entry into the residence through a door that was voluntarily opened, they did not commit a breaking as defined by the United States Supreme Court, and did not violate section 1531. (See also People v. Rudin, (1978) 77 Cal.App.3d 139, 142; People v. Thompson (1979) 89 Cal.App.3d 425, 431-432; People v. Evans (1980) 108 Cal.App.3d 193, 196.)

We find that the use of a ruse did not violate knock-notice rules in the present case. However, assuming arguendo that there was a knock-notice violation, suppression of the evidence would not be appropriate based on the bright-line rule established in Hudson. In the instant case, as in Hudson, the police possessed a valid search warrant when they entered the residence. Therefore, the alleged violations of the knock-notice rule in the instant case, as in Hudson, werenot the but-for cause of obtaining the evidence. What the knock-and-announce rule has never protected . . . is ones interest in preventing the government from seeing or taking evidence described in a warrant. (Hudson, supra, 126 S.Ct at p. 2165.) Accordingly, we find that the trial court erred in granting the motion to suppress.

Request for Remand

The purpose of section 1538.5 is to avoid the continued relitigation of the question of the admissibility of evidence. (Lorenzana v. Superior (1973) 9 Cal.3d 626, 640 (Lorenzana).) [O]ther theories to support [a] contention that the evidence was [ ] the product of illegal police conduct should be argued on the trial level at the suppression hearing. (Ibid.) People v. Moore (2006) 39 Cal.4th 168, states an exception to the general rule. Remand is appropriate if a change in the law necessarily prevented parties from presenting all pertinent facts and theories at the suppression hearing. (Id. at p. 176.)

The only argument for suppression of the evidence that was raised below was the violation of the knock-notice rule. Defendants now ask this court to remand the matter so that they may address the sufficiency of the warrant and whether there was a pattern of knock-notice violations by Officer Prigge. The issue of the sufficiency of the warrant is unaffected by Hudson and could have been and should have been raised below. Similarly, whether or not defendants could demonstrate a pattern of knock-notice violations by Officer Prigge would not affect the admissibility of the evidence at issue in this case. The change in the law established by Hudson is that suppression of evidence is inappropriate based on a knock-notice violation during service of a search warrant. (See Hudson, supra, 126 S.Ct. at pp. 2170-2171 (conc. opn. of Kennedy, J.).) In the instant case, the entry into the residence was fully described in the initial suppression hearing. Since the change in law did not prevent defendants from presenting other theories at the suppression hearing, the exception in Moore does not apply. To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5. (Lorenzana, supra, 9 Cal.3d at p. 640.) We decline defendants request to remand for another suppression hearing.

DISPOSITION

The order of dismissal is reversed, and the matter is remanded to the superior court with directions to deny defendants motion to suppress evidence.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.

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[1]Further statutory references are to the Penal Code unless otherwise specified.