P. v. Miller

Filed 9/29/06 P. v. Miller CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant Sandra Miller.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant James Miller.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.

After their motion to suppress evidence was denied, defendants James Miller and his wife Sandra Miller each pled guilty to one count of growing marijuana in violation of Health and Safety Code section 11358. They now appeal, contending the trial court erred in denying the motion to suppress because the officers failed to comply with the knock-notice requirements of Penal Code^[1] section 1531.

FACTUAL AND PROCEDURAL HISTORY

An untested informant advised Drug Enforcement Administration (DEA) agents that the defendants were growing marijuana at their home in Riverside. The agents investigated and found large electric bills for the home and items consistent with marijuana cultivation in the trash. A search warrant was issued by a federal magistrate and served in the early morning hours of January 24, 2005. The agents found a large scale marijuana growing operation in the home.

A. The Knock-Notice Issue

In their opening briefs, defendants argued that the trial court erred in denying their motion to suppress evidence because the agents serving the search warrant failed to comply with section 1531, the California knock-notice law. A DEA agent testified at the motion hearing that the agents waited 20-30 seconds after announcing themselves before forcing entry. (Cf., e.g., People v. Martinez (2005) 132 Cal.App.4th 233, 245 [no Fourth Amendment violation when the officers waited 30-35 seconds].) Defendants argued that the agents violated section 1531, and that a violation of that section required exclusion of the evidence if exclusion was mandated by federal constitutional law. Citing Ohio v. Robinette (1996) 519 U.S. 33, 39, Mrs. Miller argued that exclusion was mandated by federal constitutional law only if the search or seizure is unreasonable in light of the totality of the circumstances.

After the filing of the opening briefs, the Supreme Court decided Hudson v. Michigan (2006) ___ U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (Hudson). In Hudson, the majority held that a violation of Michigan’s knock-and-announce rule did not require suppression under the Fourth Amendment. It concluded, “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-incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.” (Id. at 2168.)

Faced with this holding, defendants concede in their closing briefs, “[e]ven if . . . the agents violated Penal Code section 1531 in serving the search warrant at [defendants’] home, suppression of the evidence obtained during the service of the warrant need not have been ordered.”

We therefore conclude that, even if the officers violated knock-notice requirements, suppression of the evidence seized is no longer the proper remedy for the violation.

B. The Timing of the Execution of the Search Warrant

The search warrant authorized a search after 6:00 a.m. A DEA agent testified that the officers assembled a “couple [of] minutes” before 6:00 a.m. and served the warrant at 6:05 a.m. However, a neighbor testified in some detail that the officers arrived before 5:35 a.m. and were moving toward defendants’ home at that time. The neighbor’s testimony was supported by her business records, and her documented habits in receiving children for child care before 6:00 a.m.

The trial court found that the entry occurred before 6:00 a.m.: “Maybe it’s just two or three minutes before 6 o’clock, but I am persuaded that it occurred before 6 o’clock.” Nevertheless, it applied a reasonableness standard and declined to grant the motion to suppress.

Defendants now argue the evidence must be suppressed because the search occurred before the time authorized in the warrant.^[2] Although we find it unnecessary to decide the issue, their position appears untenable under the reasoning in Hudson.

Setting aside that obstacle, defendant James Miller argues in his reply brief that the timing issue under section 1533 is separate from the issue decided in Hudson, and that the search and seizure was unreasonable because the officers entered at night and before the time specified in the warrant.

Respondent cites Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, and People v. Hoag (2000) 83 Cal.App.4th 1198. In Rodriguez, the court reconsidered its earlier decisions in People v. Watson (1977) 75 Cal.App.3d 592, Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, and People v. Lopez (1985) 173 Cal.App.3d 125, in light of the addition of section 28(d) to the California Constitution by Proposition 8. (Rodriguez, at pp. 1469-1470.) After doing so, the court concluded: “If exclusion of evidence seized in searches violative of nighttime service requirements is not compelled under current federal law, evidence seized in violation of section 1533 should not be excluded if the search is otherwise reasonable in a constitutional sense. Nothing in the record before us suggests anything unreasonable in the nighttime search of the [] residence beyond the statutory violation in executing the warrant at approximately 10:30 p.m., and we therefore conclude the evidence seized in that search need not be excluded.” (Id. at p. 1470.)

In Hoag, the court found a violation of the knock-notice rule, but said: “[T]he essential Fourth Amendment inquiry is whether, under the totality of the circumstances, the policies underlying the knock-notice requirement have nevertheless been served. [Citation.]” (People v. Hoag, supra, 83 Cal.App.4th at p. 1211.)

Thus, we need not decide whether Hudson extends to violations other than violations of the knock-notice rule because the trial court made a finding that the violation was constitutionally reasonable. Exercising our independent judgment, we agree with the trial court’s determination. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We therefore find that the technical violation of the service terms of the warrant was not a constitutional violation which required granting of the suppression motion and suppression of the evidence seized during the search.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RAMIREZ

P.J.

We concur:

/s/ McKINSTER

J.

/s/ MILLER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] Section 1533 states: “Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.

When establishing ‘good cause’ under this section, the magistrate shall consider the safety of the peace officers serving the warrant and the safety of the public as a valid basis for nighttime endorsements.” The warrant itself was admitted into evidence but is not in our record, so it is unknown whether the magistrate made a good cause finding authorizing a 6:00 a.m. entry and search. But, since no issue is raised in this regard, we need not consider it further.