PEOPLE, Plaintiff and Respondent, v. MILDRED MURPHY, Defendant and Appellant, 37 Cal. 4th 490

Opinion CHIN, J. We consider whether the circumstances in this case afforded sufficient exigency to justify a police entry to conduct a search of a residence without complying with the usual “knock-notice” rule, to prevent destruction of evidence.

We conclude the “no-knock” entry was justified by the circumstances, which included (1) contemporaneous, ongoing illegal drug sales on the premises, raising the reasonable inference that more drugs were inside, (2) the officers’ knowledge that defendant was on probation for a drug offense and had consented to a warrantless search of her premises, (3) the unplanned noisy confrontation with a suspect directly outside defendant’s open doorway, and (4) the officers’ loud announcement of their presence and purpose to the suspect.

The foregoing conclusion makes it unnecessary for us to consider the People’s alternative argument that the so-called inevitable discovery doctrine applies here to validate the search despite a possible knock-notice violation, an issue now pending before the United States Supreme Court. (Hudson v. Michigan, cert. granted June 27, 2005, No. 04-1360.) FACTS Defendant Mildred Murphy appeals the denial of her motion to suppress evidence (Pen. Code, § 1538.5, subd. (m)) after having pleaded guilty to possessing methamphetamine for sale (Health & Saf. Code, § 11378).

The following uncontradicted facts are taken largely from the Court of Appeal opinion in this case. Because the question whether sufficient exigent circumstances existed depends on a close examination of the surrounding facts, we recite those facts in some detail. At approximately 1:00 p.m. on November 7, 2001, on investigating a citizen’s complaint, Detective Alberto Santana of the San Diego County Sheriff’s Department Street Narcotics Team observed a woman leave defendant’s residence, and drive away. Santana, suspecting a dmg transaction had taken place, stopped the car.

The driver admitted she had obtained methamphetamine from defendant. Santana decided to conduct a probation search of defendant’s residence. (It is undisputed that defendant was then on probation and had consented to warrantless searches of her residence as a condition of her probation.) While Detective Marlow maintained surveillance of defendant’s residence, Santana developed an operational plan for the search. He was familiar with the layout of the house, having had previous contact with defendant.

Because Santana had observed people coming out of defendant’s converted bedroom in the garage, he decided the search team should enter through the garage. During the surveillance, Marlow observed defendant greet a man in front of her house. They walked around the side of the house and reappeared a few minutes later. It appeared to Marlow that they were exchanging something.

Shortly thereafter, Santana and other members of the search team arrived, wearing plain clothes, but with black bulletproof vests with the word “Sheriffs” on them, and hats marked with the words “Sheriff’s Narcotics.” Marlow also observed yet another man near defendant’s garage. Once Santana and the other members of the search team arrived, Marlow alerted them to this man’s presence. Santana and the other officers approached this man, later identified as Michael Thomaselli, who was standing near the comer of the garage clenching something in one hand.

Santana pointed a gun at Thomaselli and “[i]n a loud voice . . . [a]lmost yelling,” said to him, “Sheriff’s Department. Probation search. Get on the ground.” The other members of the team were also yelling, “Sheriff’s Department,” and they all had their guns drawn. Thomaselli was actually repairing a fence for defendant and was holding some screws in his hand. The officers at no time observed any interaction between defendant and Thomaselli. When the officers confronted Thomaselli, Santana heard a dog barking loudly from inside defendant’s house.

At least five to seven seconds later, Santana and other members of the team entered the residence, without knocking. Santana said he did not knock because he knew that “anyone in the residence or in the bedroom would have heard us” yelling at Thomaselli. Santana testified that “seeing the sliding glass window was opened and a dog was barking, we continued in.” Santana believed the team’s stakeout had been “compromise[d]” and feared persons in the residence might arm themselves, destroy evidence, or flee. Santana testified that he and four or five members of his team entered the house with their guns drawn.

Upon searching the residence, the officers found defendant at the opposite end of the house from where they had entered, in a bedroom with her bedridden ex-husband. Defendant was read her Miranda rights and waived them. She readily admitted having sold methamphetamine and showed the officers the location of a scale and six baggies that contained the drug. The officers also found several “pay and owe” sheets in defendant’s house. Thomaselli testified that when he encountered the officers, they ordered him to the ground, at gunpoint.

After he was on the ground, the officers asked him whether defendant was inside the house, and he told them she was. Thomaselli did not see them enter the house. Defendant testified on her own behalf. She was in a back bedroom with the door shut, caring for her ex-husband, when the officers entered the house. She heard someone calling her name and was disturbed because she did not know who it was. Prior to hearing her name called, she did not believe she had heard anyone say anything about police or probation.

After she heard her name called, defendant opened the bedroom door and found one of the officers standing in the doorway, pointing a gun at her face. He told defendant to put her hands up. Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378). She pleaded not guilty and filed a motion to suppress evidence, pursuant to Penal Code

section 1538.5, claiming that in conducting the search, the officers had violated California’s knock-notice requirements and the Fourth Amendment. The preliminary examination hearing served also as an evidentiary hearing for the motion to suppress and the probation revocation. The court initially found there were no exigent circumstances that would excuse the officers’ duty to comply with the knock-notice requirements.

The court reasoned that when the officers entered defendant’s residence, they had insufficient reason to believe drugs were being flushed or otherwise destroyed, or that anyone in the house was arming himself or herself. In addition, they had no reason to believe defendant was likely to be armed, and they could see she was not attempting to flee.

The court also determined, however, that the officers’ shouting at Thomaselli, identifying themselves as sheriff’s deputies, and announcing their intent to conduct a probation search, sufficiently notified the occupants of the impending search, thereby satisfying knock-notice requirements. The court observed that the officers’ entry occurred “at least five to seven seconds [after they shouted at Thomaselli], I think it was probably longer, certainly from Mr.

Thomaselli’s testimony.” The court opined that this was “plenty of time once that notification is made for someone to come to the door and find out what the heck is going on.” The court denied the motion to suppress on the ground that the officers had substantially complied with knock-notice requirements. The court also found the evidence was sufficient to hold defendant to answer for the methamphetamine charge and revoked her probation. Defendant filed a motion to set aside the information, pursuant to Penal Code

section 995, on the ground that the law enforcement officers had violated knock-notice requirements. The trial court denied the motion. Defendant then pleaded guilty to possessing methamphetamine for sale. The trial court placed defendant on probation for a period of three years on the condition that she serve 210 days in custody, and fined her $550. The court later determined that defendant was eligible for electronic surveillance and revised the 210-day commitment order accordingly. Defendant filed a timely appeal. On appeal, the Court of Appeal filed a divided opinion reversing the judgment.

The majority concluded that the evidence seized during the search was obtained in violation of California’s knock-notice requirements and the Fourth Amendment, and must therefore be suppressed. We granted the People’s petition for review and directed the Court of Appeal to vacate the opinion and reconsider its decision in light of United States v. Banks (2003) 540 U.S. 31 [157 L.Ed.2d 343, 124 S.Ct. 521] (Banks), which was decided after it filed its opinion in this case.

On reconsideration, a majority of the Court of Appeal again concluded that the search of defendant’s residence violated California’s knock-notice requirements and the Fourth Amendment, and that the evidence seized during tire search must be suppressed. Justice Benke again dissented. We again granted review and will reverse. DISCUSSION As a general rule, before entering a house to make an arrest or perform a search, officers must first identify themselves, explain their purpose, and demand admittance. (People v.

Rosales (1968) 68 Cal.2d 299, 302 [66 Cal.Rptr. 1, 437 P.2d 489] (Rosales) [failure to state purpose invalidated entry]; People v. Maddox (1956) 46 Cal.2d 301, 306 [294 P.2d 6] (Maddox) [knock-notice compliance excused where officer had good faith belief his peril would increase or occupants would flee]; see Pen.

Code, §§ 844, 1531; see generally Annot., Knock-and-Announce Compliance (2001) 85 A.L.R.5th 1 (Annotation).) The purpose of this so-called knock-notice rule is (1) to protect the privacy of the householder; (2) to safeguard innocent persons on the premises; (3) to prevent violent confrontations arising from unannounced entries; and (4) to protect the police themselves from injuries caused by a surprised or fearful householder. (People v.

King (1971) 5 Cal.3d 458, 464, fn. 3 [96 Cal.Rptr. 464, 487 P.2d 1032].) The rule applies to entries through unlocked doors as well as “break-in” entries achieved by force. (Rosales, supra, 68 Cal.2d at p. 303 & fn. 4.) The People no longer contend that the officers’ conduct substantially complied with the knock-notice rule, and we do not consider that issue here. (See, e.g., People v. Hoag (2000) 83 Cal.App.4th 1198, 1208-1212 [100 Cal.Rptr.2d 556] (maj. opn. of Hull, J.); id. at pp. 1219-1229 (dis. opn. of Sims, Acting P.

J.).) The People also do not dispute that the knock-notice rule applies to probation searches. (See People v. Lilienthal (1978) 22 Cal.3d 891, 900 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Mays (1998) 67 Cal.App.4th 969, 973, fn. 4 [79 Cal.Rptr.2d 519].) The People do contend, however, that exigent circumstances justified the knock-notice violation. As previously noted, they also argue alternatively that the inevitable discovery doctrine validated the search, an issue we decline to reach.

In the present case, the trial court (magistrate) found no exigent circumstances existed to excuse the officers’ duty to comply with the knock-notice requirements, as the officers did not know that drugs were being flushed or otherwise destroyed, or that anyone in the house was arming himself or herself or attempting to flee. Of course, this finding, to the extent it states a legal conclusion, is not binding on us. “In reviewing a ruling on a motion to suppress evidence, we defer to the trial court’s findings of fact, whether express or implied, if those findings are supported by substantial evidence.

We independently determine the relevant legal principles and apply those principles in evaluating the reasonableness of the search based on the facts as found by the trial court.” (People v. Mays, supra, 67 Cal.App.4th at p. 972.) We have held that failure to comply with the knock-notice rule may be excused when exigent circumstances exist. For example, in Maddox, supra, 46 Cal.2d 301, an officer acting with reasonable cause to make a narcotics arrest kicked down defendant’s door after knocking and hearing retreating footsteps.

Although the officer failed to demand admittance or explain his purpose, we upheld the seizure of narcotics found within. We observed that full compliance with knock-notice requirements could delay an officer’s entry and thereby “permit [the] destruction or secretion of evidence . . . .” (46 Cal.2d at p. 305.) Because the officer in Maddox clearly had the right to enter and invade defendant’s privacy, “there is no compelling need for strict compliance with the requirements of [Penal Code]

section 844 to protect basic constitutional guarantees.” (Id. at p. 306.) In Maddox, we framed the applicable test for exigent circumstances this way: “[W]hen there is reasonable cause to make an arrest and search and the facts known to [the officer] before his entry are not inconsistent with a good faith belief . . . that compliance with [Penal Code]

section 844 is excused, his failure to comply with the formal requirements of that

section does not justify the exclusion of the evidence he obtains.” (Maddox, supra, 46 Cal.2d at pp. 306-307.) More recent cases have slightly rephrased that test so that strict compliance with the knock-notice rule is excused “if the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence.'1'’ (People v. Tribble (1971) 4 Cal.3d 826, 833 [94 Cal.Rptr. 613, 484 P.2d 589], italics added; see People v.

Dumas (1973) 9 Cal.3d 871, 877 [109 Cal.Rptr. 304, 512 P.2d 1208]; Rosales, supra, 68 Cal.2d at p. 305; People v. Flores (1982) 128 Cal.App.3d 512, 521 [180 Cal.Rptr. 368] (Flores); see also Annot., supra, 85 A.L.R.5th at pp. 179-182, § 50, citing similar out-of-state cases.) We have also made clear, however, that no blanket rule exists exempting all narcotics cases from the knock-notice rule; instead, a specific showing must be made to justify an unannounced entry or break in. (Rosales, supra, 68 Cal.2d at p. 305; People v.

Gastelo (1967) 67 Cal.2d 586, 587-589 [63 Cal.Rptr. 10, 432 P.2d 706].) In other words, the mere fact that the officers are aware of contemporaneous drug activity on the premises does not provide per se justification for a no-knock entry. Nonetheless, we think the People made a sufficient specific showing of exigent circumstances here. Flores, supra, 128 Cal.App.3d 512, is very close on point. There, the officers were aware of recent or contemporaneous drug sales on the premises and obtained a search and arrest warrant.

Before entering the premises, the officers confronted defendant Flores outside, arrested him, and yelled through the open door, “ ‘Police officer with a search warrant. Demand an entry.’ ” (Id. at p. 518.) Knowing that any drugs on the premises could be quickly destroyed by other persons they knew were inside, the officers entered a few seconds later, seizing drugs and various other items. (Id. at pp. 518-519.) The Flores court acknowledged the officers entered without giving the occupants a reasonable opportunity to permit or refuse peaceable entry. (See Brown v.

Superior Court (1973) 34 Cal.App.3d 539, 543 [110 Cal.Rptr. 107].) But the court found sufficient exigent circumstances to excuse strict compliance: “[T]he specific facts known to [the police officer] included the immediately preceding large heroin sale actively engaged in by [a codefendant] whom he knew was inside the same house where heroin sales of increasing amounts were completed in four of the past six days and ... the yelling at [defendant] just outside the open front door which he reasonably could consider as having warned those inside of the officers’ presence and purpose.” (Flores, supra, 128 Cal.App.3d at p. 521.) These two factors, ongoing drug sales and a loud announcement of the officers’ identity and purpose, are similarly present in this case.

We also find strong support for our holding in Banks, supra, 540 U.S. 31. Banks recently clarified the federal constitutional principles governing non-consensual entries made without full compliance with knock-notice requirements. These principles, which seem fully compatible with the California cases discussed ante, necessarily govern our analysis here. (Cal. Const., art. I, § 28, subd. (d); see In re Lance W. (1985) 37 Cal.3d 873, 884-890 [210 Cal.Rptr. 631, 694 P.2d 744].) In Banks, the officers obtained a search warrant based on an informant’s tip that the defendant was selling cocaine from his home.

The officers arrived at the premises, called out “ ‘police search warrant,’ ” knocked loudly on the door, and after 15 to 20 seconds broke in with a battering ram. A house search uncovered contraband and other incriminating evidence. (Banks, supra, 540 U.S. at p. 33.) The Ninth Circuit Court of Appeal reversed a trial court denial of suppression of the foregoing evidence, and the high court granted certiorari to consider whether the officers waited a reasonable time before breaking in.

The court upheld the entry and search. (Banks, supra, 540 U.S. at pp. 34-35.) Unlike the present case, the officers in Banks actually knocked and formally announced their purpose before breaking in.

Yet the Banks court did not treat that fact as legally significant because “there is no reason to treat a post-knock exigency differently from the no-knock counterpart” because “the same criteria” should apply in determining whether the officers could legitimately enter after knocking or whether a knock and announcement were required in the first place. (Banks, supra, 540 U.S. at pp. 40, 35.) The Banks court repeated the previous test for allowing a “no-knock” entry, namely, that the police must “ ‘have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.’ ” (Banks, supra, 540 U.S. at p. 36, quoting Richards v.

Wisconsin (1997) 520 U.S. 385, 394 [137 L.Ed.2d 615, 117 S.Ct. 1416].) Banks noted that, under Richards, “if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in” without knocking. (Banks, supra, 540 U.S. at p. 37.) With respect to the exigency present whenever drugs are involved, Banks agreed that after waiting 15 or 20 seconds without a response to their knock, the officers could reasonably suspect that any drug on the premises would be flushed away unless they forcibly broke in. (Banks, supra, 540 U.S. at p. 38.) The court observed that “when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter . . . .” (Id. at p. 40.) As noted, a majority of the Court of Appeal in the present case found no exigent circumstances to excuse the officers from complying with the knock-notice rule.

The majority agreed with the magistrate that the officers provided insufficient facts to justify their fear that evidence could be destroyed absent immediate entry. In this regard, the court expressly declined to follow the Flores rationale (see Flores, supra, 128 Cal.App.3d at p. 521) that contemporaneous sales on the premises, coupled with the officers’ yelling at one suspect outside the open door, justified immediate entry to prevent destruction of evidence.

As for Banks, supra, 540 U.S. 31, the Court of Appeal majority attempted to distinguish that case as one in which the officers actually knocked before entering, seemingly ignoring Banks’ s statement that the same standards it was announcing would apply in a “no-knock” situation if the requisite “reasonable suspicion of exigency” existed. (Banks, supra, 540 U.S. at pp. 36-37.) The dissenting opinion of Acting Presiding Justice Benke in this case argued that exigent circumstances existed based on defendant’s ongoing or contemporaneous drug transactions on or near the premises, the officers’ loud shouting at Thomaselli identifying themselves as officers conducting a probation search, and their reasonable belief that defendant was thereby amply alerted to their presence and purpose.

As the Benke dissent observed, “[n]ot only would knocking and waiting for a response from occupants have been futile and risk destruction of drugs, in this case the officers’ staging plan was in disarray, their attention necessarily diverted from appellant and entering her house to the chaos of dealing with events outside. . . .

Moreover, as the United States Supreme Court reminds us, we are not at liberty to substitute our views on how the officers should have responded, but rather we are obligated to view the reasonableness of their actions through their eyes at the time they are confronted with the alleged exigency.

Under the chaotic circumstances here, it was reasonable for Santana to choose a course of action that preserved the safety of the officers. “The majority would have these officers, in the midst of the commotion and drug dealing around them, with guns drawn, stand at a partially opened sliding glass door they could not see through (but presumably through which they could be seen by those inside). There they would be required to knock and count the seconds, somehow reflecting individually or as a group upon preceding events to determine how long they should wait. This is not realistic.

Nor is it a result contemplated by existing law.” We agree with the Court of Appeal dissent that exigent circumstances excused compliance with the knock-notice rule in this case. The officers reasonably could assume, based on their knowledge of defendant’s probationary status allowing warrantless searches and the apparent ongoing and contemporaneous drug sales on the premises, that some drugs were still present inside which could be readily destroyed once defendant became aware of the officers’ identity and intent.

The officers could also reasonably suspect that the commotion occurring immediately outside defendant’s open door, including the officers’ loud identification of themselves as members of the sheriff’s department seeking to execute a probation search, and the sound of a barking dog inside the premises, together would alert defendant to destroy or conceal any drugs on the premises unless the officers entered without further delay. As the trial court found, the loud confrontation with Thomaselli was sufficient to put defendant on notice of the officers’ identity and purpose.

We stress, of course, that police officers are not permitted to contrive to create their own exigency by making loud noises before entering, or even by loudly announcing their presence and purpose to serve as a pretext for entering without knocking. But nothing in the record suggests the officers prearranged or contrived the confrontation with Thomaselli. Defendant observes that in Banks, supra, 540 U.S. at page 33, the officers waited 15 to 20 seconds before entering, whereas here the officers entered after a mere five to seven seconds after announcing their identity and purpose to Thomaselli.

First, the trial court found that “probably” more time had elapsed than merely five or seven seconds. Second, in the present case, the officers entered through an unlocked open door. But in Banks, the officers determined to use a battering ram to break down the defendant’s door and obviously needed more time to prepare for and execute an entry in such manner.

In any event, in the words of the high court in Banks, supra, 540 U.S. at page 40, “when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.” Defendant also argues that police officers should not be allowed to dispense with the requirement of an actual knock merely because they have previously announced their identity and purpose.

We agree that even in drug cases, ordinarily officers executing a search must complete the knock-notice procedure and may not rely on their announcement as itself creating an exigency justifying immediate entry. As noted ante, however, no evidence exists in this case to suggest the officers contrived to use their confrontation with Thomaselli as an excuse to avoid compliance with the knock-notice rule. We conclude that, under the facts in this case, the officers’ entry without knocking was justified by exigent circumstances. The judgment of the Court of Appeal is reversed. George, C.

J., Kennard, J., and Baxter, J., concurred.