THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD HOAG, Defendant and Appellant, 83 Cal. App. 4th 1198

Opinion HULL, J. In this matter we conclude a party who is absent at the time of a search of his home nevertheless has a sufficient privacy interest in the premises to assert a knock-notice violation. However, we also conclude that, under the circumstances of this case, the police officers executing a search warrant on defendant’s home substantially complied with the knock-notice requirements of Penal Code

section 1531 despite failing to wait a sufficient time before entering to permit any occupant therein to respond. Consequently, the search was not unreasonable within the meaning of the Fourth Amendment. Following denial of his suppression motion, defendant pleaded guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and was placed on three years’ probation. He appeals challenging only the denial of his suppression motion. (Pen. Code, § 1538.5, subd. (m).) We affirm.

Facts and Procedural History Defendant lived in Rocklin, California, with his fiancée, Elizabeth Cunnagin, and their five-year-old daughter. On the evening of December 8, 1997, Cunnagin had to study for finals in her nursing classes and defendant took the couple’s child to a babysitter. Defendant left around 7:00 or 7:15 p.m. and was expected to return in half an hour. While defendant was away, five Placer County Sheriff’s deputies served a search warrant on the residence. They opened a wooden gate and walked up to the front door.

A deputy knocked on the door and announced “Sheriff’s Department, search warrant, we demand entry.” Hearing no response, he knocked and gave notice again. There was still no response. Another deputy tried the door handle and, finding the door unlocked, opened it slightly. The deputies entered together. They estimated 15 to 20 seconds had elapsed between their first knock and their entry. The deputies found Cunnagin sitting on or getting up from a couch in the living room. She was surrounded by books and papers and appeared to be doing homework.

According to the officers, music was playing, but not loudly; it was not audible from outside. There was a dog present, probably in the garage, which the deputies put in a bathroom so they could conduct the search without distraction. Cunnagin testified she did not hear the deputies open the gate to the residence and did not hear a knock or announcement before the deputies entered. The first thing she heard was the click of her front doorknob. The deputies seized, handcuffed, and questioned Cunnagin, but did not arrest her. No contraband was found in the house, but marijuana was found in the garage.

Defendant returned home and opened his garage door to find three deputies inside conducting a search. He was placed in custody and thereafter charged with possession of marijuana for sale. (Health & Saf. Code, § 11359.) Defendant moved to suppress the evidence obtained in the search of his residence on the ground the deputies violated Penal Code

section 1531, rendering the subsequent search “unreasonable” under the Fourth Amendment to the United States Constitution. The trial court denied the motion, concluding defendant’s absence from the residence deprived him of the right to challenge the alleged knock-notice violation. At defendant’s request, the court went on to rule that 15 to 20 seconds was not long enough for the deputies to have waited to satisfy the knock-notice requirement under the circumstances presented. Defendant thereafter pleaded guilty to the charged offense and was placed on three years’ probation.

Discussion I Defendant’s Right to Challenge the Knock-notice Violation The United States Supreme Court has declared as a matter of federal constitutional law: “[T]he common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.” (Wilson v. Arkansas (1995) 514 U.S. 927, 930 [115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, 980] (Wilson).) Long before Wilson, the California courts had applied a Fourth Amendment standard to knock-notice questions. (Duke v. Superior Court (1969) 1 Cal.3d 314, 325 [82 Cal.Rptr. 348, 461 P.2d 628]; Greven v.

Superior Court (1969) 71 Cal.2d 287, 290 [78 Cal.Rptr. 504, 455 P.2d 432]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [63 Cal.Rptr. 10, 432 P.2d 706]; see People v. Rosales (1968) 68 Cal.2d 299, 304-305 [66 Cal.Rptr. 1, 437 P.2d 489] [Pen. Code, § 844 (arrest warrants)].) Under the Fourth Amendment, a person may challenge the legality of a search or seizure only if he can show a personal interest in the privacy of the place searched or the item seized; he may not vicariously challenge the alleged violation of another’s interests. (Rakas v.

Illinois (1978) 439 U.S. 128, 132-138 [99 S.Ct. 421, 424-428, 58 L.Ed.2d 387, 393-398] (Rakas).) California follows the Rakas rule. (Cal. Const., art. I, § 28, subd. (d); In re Lance W. (1985) 37 Cal.3d 873, 879 [210 Cal.Rptr. 631, 694 P.2d 744].) In assessing a defendant’s right to challenge a particular Fourth Amendment violation, it is useful to consider the interests sought to be protected by the rule at issue. California courts have identified the following rationale for knock-notice: “ ‘

(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 where an arrest is made [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. Peterson (1973) 9 Cal.3d 717, 723 [108 Cal.Rptr. 835, 511 P.2d 1187]; People v.

Aguilar (1996) 48 Cal.App.4th 632, 637 [55 Cal.Rptr.2d 716].) The United States Supreme Court in Wilson stressed an additional factor not spelled out in the California rationale but lying at the root of the knock-notice rule in English common law: the law’s abhorrence of the unnecessary “ ‘destruction or breaking of any house ....’” (Wilson, supra, 514 U.S. at p. 931 [115 S.Ct. at pp. 1916-1917, 131 L.Ed.2d at p. 981].) We are aware of no post -Wilson California decisions which have considered an absent party’s right to challenge a knock-notice violation under the Fourth Amendment.

However, at least three sister state decisions have considered the issue. Of these, Mazepink v. State (1999) 336 Ark. 171 [987 S.W.2d 648] (Mazepink) is the most persuasive. In Mazepink, the Arkansas Supreme Court held squarely in reliance on Wilson and the United States Supreme Court’s prior definition of “legitimate expectation of privacy” (Rakas, supra, 439 U.S. 128 [99 S.Ct. 421, 58 L.Ed.2d 387]), that a defendant who was absent when the police searched his residence nevertheless had the requisite privacy interest to raise a knock-notice claim.

The Mazepink court first quoted the Rakas discussion of what constitutes a legitimate expectation of privacy: “ ‘Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

One of the main rights attaching to property is the right to exclude others, . . . and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.’ ” (Mazepink, supra, 987 S.W.2d at p. 651, quoting Rakas, supra, 439 U.S. at p. 143, fn. 12 [99 S.Ct. at p. 431, 58 L.Ed.2d at p. 401], italics omitted.) The court then reasoned that in light of Rakas the defendant had a legitimate expectation of privacy in his residence regardless of whether he was there when the police arrived: “It seems irrelevant under these circumstances 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 [the persons who were present at the time of entry].” (Mazepink, supra, 987 S.W.2d at p. 652.) The court also noted that on the facts of the case the “destruction of property” factor described in Wilson gave the defendant an additional claim to standing because the police had forced entry into his house, damaging the property. (Mazepink, supra, 987 S.W.2d at pp. 651-652.) Here, as in Mazepink, defendant had a legitimate expectation of privacy “grounded in his right to exclude others [,] to be free of illegal police invasion of his privacy in his residence . . . [and] to expect not only privacy for himself, but for his family and invitees . . . .” (Mazepink, supra, 987 S.W.2d at p. 652; see also People v.

Peterson, supra, 9 Cal.3d at p. 723 [purposes of knock-notice include “ ‘the protection of innocent persons who may also be present on the premises where an arrest is made . . .’ ”].) Defendant had a sufficient personal interest in the safety of the mother of his child, who was present when the officers entered his residence, to allow him to challenge the mode of entry. Furthermore, defendant has a right to be protected from the unnecessary destruction of his property. Of course, in Mazepink, the police literally broke into the defendant’s home.

However, the level of defendant’s protected interest in the premises does not depend on the fortuity of whether the police actually break down his door (see People v. Rosales, supra, 68 Cal.2d at p. 303; People v. Hobbs (1987) 192 Cal.App.3d 959, 965-966 [237 Cal.Rptr. 742] [entry through unlocked but closed door is a “breaking” under Pen. Code, § 1531]), just as his right to assert the gamut of privacy interests in his residence under the Fourth Amendment does not depend on the fortuity of whether he happens to be present when the police arrive.

The People cite three federal appellate decisions which held or suggested that parties not present when the police search their residences may not assert a violation of the federal “knock and announce” statute (18 U.S.C. § 3109). (See U.S. v. Zermeno (9th Cir. 1995) 66 F.3d 1058, 1062 (Zermeno); U.S. v. Valencia-Roldan (9th Cir. 1990) 893 F.2d 1080, 1081, fn. 1 (Valencia-Roldan); United States v. DeLutis (1st Cir. 1983) 722 F.2d 902, 908 (DeLutis).) However, these lower federal court decisions are not binding on this court (People v.

Neer (1986) 177 Cal.App.3d 991, 1000-1001 [223 Cal.Rptr. 555]) and, in light of Wilson, are not persuasive. Furthermore, DeLutis and Valencia-Roldan predate Wilson and do not consider the defendants’ claims in light of the Fourth Amendment. (Valencia-Roldan, supra, 893 F.2d at p. 1081, fn. 1; DeLutis, supra, 722 F.2d at p. 908.) Zermeno, though published after Wilson, equally fails to consider the Fourth Amendment’s reasonableness test. (Zermeno, supra, 66 F.3d at p. 1062.) Finally, none of the decisions are persuasive even in light of preWilson law.

DeLutis, the earliest of the cited decisions, relies on a rationale for the federal “knock and announce” statute which is less comprehensive than the California courts’ rationale for Penal Code

section 1531, which is grounded in Fourth Amendment concerns. (DeLutis, supra, 722 F.2d at p. 908; compare Sabbath v. United States (1968) 391 U.S. 585 [88 S.Ct. 1755, 1757-1758, 20 L.Ed.2d 828, 833] [18 U.S.C. § 3109’s purposes are to protect the “individual’s right of privacy in his home” and “to safeguard officers”], with People v.

Peterson, supra, 9 Cal.3d at p. 723 [The purposes of knock-notice additionally include “ ‘the protection of innocent persons who may also be present on the premises where an arrest is made’ ” and “ ‘the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice’ ”].) DeLutis’s statutory rationale also fails to mention the law’s desire to safeguard residents against the unnecessary destruction of their property. (Cf.

Wilson, supra, 514 U.S. at p. 931 [115 S.Ct. at pp. 1916-1917, 131 L.Ed.2d at pp. 980-981].) Valencia-Roldan, the second in time of the cited decisions, offers no reasoning or authority for its holding, merely asserting it baldly in a footnote. (Valencia-Roldan, supra, 893 F.2d at p. 1081, fn. 1.) Finally, Zermeno relies exclusively on DeLutis and Valencia-Roldan and provides no additional analysis. (Zermeno, supra, 66 F.3d at p. 1062.) For all the above reasons, we conclude defendant had a reasonable expectation of privacy in the residence searched sufficient to allow him to assert a knock-notice violation.

II Knock-notice Violation Defendant contends the trial court correctly concluded the officers waited an unreasonably short time before entering the residence. He further contends neither the inevitable discovery rule nor the independent source rule provides a basis for avoiding suppression of the evidence seized from his Because we disagree with defendant’s first contention, it is unnecessary to consider the other. As we shall explain, any knock-notice violation, under the circumstances presented, did not render the subsequent search unreasonable within the meaning of the Fourth Amendment.

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 substantial evidence. We then 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 [21 Cal.Rptr.2d 785].) Penal Code

section 1531 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.” Entry through an unlocked but closed door is a “breaking” within the meaning of this statute. (People v. Rosales, supra, 68 Cal.2d at p. 303.) An unreasonable delay in responding to a knock and announce is tantamount to a refused admittance. (People v.

Elder (1976) 63 Cal.App.3d 731, 739 [134 Cal.Rptr. 212].) The trial court made two findings of fact pertinent to this matter: (1) the officers waited 15 to 20 seconds after first knocking before entering the residence, and (2) the officers had no reason to believe there was anyone present in the residence at the time of entry. Implicit in these express findings is an additional finding that the officers did in fact knock and announce their presence and purpose before entering. These findings are supported by substantial evidence.

From the foregoing, the trial court concluded there had been a violation of knock-notice. In light of the trial court’s factual findings, its determination of a knock-notice violation is necessarily premised on the length of time the officers waited before entry. In effect, the court concluded a 15-to-20-second delay, under the circumstances, did not amount to a refused admittance, i.e., the officers did not give the occupant a sufficient time to respond. Assuming the trial court was correct in this regard, the inquiry does not end there. “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 [25 Cal.Rptr.2d 524, 863 P.2d 769].) Exclusion is mandated under the federal Constitution only if the search or seizure was unreasonable in light of the totality of the circumstances presented. (See Ohio v. Robinette (1996) 519 U.S. 33, 39 [117 S.Ct. 417, 421, 136 L.Ed.2d 347, 354-355, 148 A.L.R.

Fed. 739].) Although a violation of knock-notice could render a search unreasonable within the meaning of the Fourth Amendment (see Wilson, supra, 514 U.S. at p. 930 [115 S.Ct. at p. 1916, 131 L.Ed.2d at p. 980]), not every technical violation will have this effect (People v. Tacy (1987) 195 Cal.App.3d 1402, 1415-1416 [241 Cal.Rptr. 400]). California appellate courts have recognized the concept of substantial compliance in appropriate circumstances. (See People v.

Jacobs (1987) 43 Cal.3d 472, 482-483 [233 Cal.Rptr. 323, 729 P.2d 757].) “ ‘Substantial compliance means “ ‘actual compliance in respect to the substance essential to every reasonable objective of the statute,’ as distinguished from ‘mere technical imperfections of form.’ ” ’ (People v. Jacobs[, supra,] 43 Cal.3d [at p.] 483 [233 Cal.Rptr. 323, 729 P.2d 757]; italics in original.) The essential inquiry is whether under the circumstances the policies underlying the knock-notice requirements were served. (Ibid.)” (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1227 [266 Cal.Rptr. 473].) In People v.

Tacy, supra, 195 Cal.App.3d 1402, police officers approached an apartment to serve a search warrant. The front door of the apartment was open and only a screen door separated the officers from the occupants. The officers were dressed in police clothing and one or more had guns drawn. They made eye contact with a resident lying on a couch, identified themselves and informed the resident of the warrant and their intent to search the residence.

They directed the occupant to remain on the couch and entered. (Id. at pp. 1406-1407.) Under these circumstances, and despite the failure of the officers either to knock or to allow the occupant an opportunity to admit them, the court found substantial compliance with the knock-notice requirement. (Id. at p. 1421.) According to the court, any invasion of privacy was minimal and the purposes underlying the knock-notice requirement were in no way frustrated. (Ibid.) In People v. Trujillo, supra, 217 Cal.App.3d 1219, six officers approached the door to a residence to execute a search warrant.

One officer knocked four times and announced, “ ‘San Jose police, we have a search warrant.’ ” He heard movement inside but there was no response to the knock. He knocked again and, 18 seconds after the first knock, kicked in the door. (Id. at p. 1224.) The court concluded the officers had not waited a sufficient time to constitute a refused admittance under the circumstances. (Id. at pp. 1226-1227.) However, the court also found there had been substantial compliance with the knock-notice requirement.

The court explained that the dual policies of the knock-notice requirement—to prevent injury to police or citizens and to protect privacy interests—were served under the circumstances presented. (Id. at pp. 1227-1228.) According to the court: “[U]nder all the circumstances, the police delayed entry long enough after knocking and announcing themselves and their purpose to protect defendant’s reduced expectation of personal privacy, even though the delay was not long enough to amount to an implicit refusal of entry.” (Id. at p. 1228.) The concept of substantial compliance, as reflected in the foregoing cases, is consistent with general principles of Fourth Amendment analysis.

As explained previously, the federal high court held in Wilson that a violation of knock-notice is part o/the reasonableness inquiry under the Fourth Amendment. (Wilson, supra, 514 U.S. at p. 930 [115 S.Ct. at p. 1916, 131 L.Ed.2d at p. 980].) There, police officers armed with a warrant opened the unlocked screen door of the defendant’s residence and entered while identifying themselves and stating they had a warrant.

The state trial court denied the defendant’s suppression motion, and this was affirmed on appeal. (Id. at p. 930 [115 S.Ct. at p. 1916, 131 L.Ed.2d at p. 980].) However, the United States Supreme Court reversed, explaining: “Our own cases have acknowledged that the common-law principle of announcement is ‘embedded in Anglo-American law,’ [citation], but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment. We now so hold.

Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.” (Id. at p. 934 [115 S.Ct. at p. 1918, 131 L.Ed.2d at p. 982], fn. omitted.) . In Richards v. Wisconsin (1997) 520 U.S. 385 [117 S.Ct. 1416, 137 L.Ed.2d 615] (Richards), the court reiterated that knock-notice is a part of the reasonableness inquiry of the Fourth Amendment.

The Wisconsin Supreme Court had concluded police officers are never required to knock and announce when executing a search warrant in a felony drug matter because of the inherent risks and the potential for destruction of evidence. (520 U.S. at pp. 388-392 [117 S.Ct. at pp. 1419-1420, 137 L.Ed.2d at pp. 621-622].) In rejecting this per se approach, the federal high court explained the circumstances of a given search may nullify the concerns expressed by the Wisconsin Supreme Court: “[W]hile drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree.

For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly.

In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry.” (520 U.S. at p. 393 [117 S.Ct. at p. 1421, 137 L.Ed.2d at p. 623].) “As Richards makes clear, Wilson neither announced an absolute knock- and-announce rule nor created categorical exceptions to the rule for felony drug cases.” (Aponte Matos v. Toledo Davila (1st Cir. 1998) 135 F.3d 182, 190.) The court held only that a knock-notice violation “is part of the Fourth Amendment inquiry—not the end of it.” (U.S. v.

Fields (2d Cir. 1997) 113 F.3d 313, 323.) In Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453 [245 Cal.Rptr. 617], the court considered whether a violation of Penal Code

section 1533, which requires a showing of good cause for inclusion in a search warrant of a provision for nighttime service, requires suppression. Earlier decisions so held. (See Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 332 [174 Cal.Rptr. 576]; People v. Watson (1977) 75 Cal.App.3d 592, 597-600 [142 Cal.Rptr. 245].) However, in light of

article I,

section 28, subdivision (

d) of the state Constitution and existing federal law, the court held suppression is not mandated. (Rodriguez v.

Superior Court, supra, 199 Cal.App.3d at p. 1469.) Rather, considering the violation of the nighttime service requirement in light of the totality of the circumstances, the court concluded: “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 the present matter, although there was a technical violation of the knock-notice requirement in that the officers did not wait a sufficient time before entering, the essential Fourth Amendment inquiry is whether, under the totality of the circumstances, the policies underlying the knock-notice requirement have nevertheless been served. (Trujillo, supra, 217 Cal.App.3d at p. 1227.) As indicated previously, the purposes underlying the knock-notice requirement have been identified as “ ‘(1) the protection of the privacy of the individual in his home . . . ; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice . . . ; and (4) the protection of police who might be injured by a startled and fearful householder.’ ” (People v.

Peterson, supra, 9 Cal.3d at p. 723; see also People v. Aguilar, supra, 48 Cal.App.4th at p. 637.) Another relevant consideration is the law’s abhorrence of the unnecessary destruction of private property. (Wilson, supra, 514 U.S. at p. 931 [115 S.Ct. at pp. 1916-1917, 131 L.Ed.2d at p. 981].) Under the facts of this case, none of these policy concerns is implicated. The officers approached the front door of the residence and knocked and announced their presence and purpose twice. They waited 15 to 20 seconds before proceeding further.

They turned the handle on the unlocked door and opened it slightly before opening it all the way and entering. The officers did not rush the occupant or destroy property. There is nothing in the record to suggest either the occupant or the officers were ever at risk. “ ‘To the extent that the [knock-notice] rule prevents violence, its utility is exhausted when the actual announcement is made. . . . [¶] The interest in preventing the unnecessary destruction of private property is clearly not present when officers enter through an unlocked door. . . . [¶] . . .

The simple fact is that a homeowner has no right to prevent officers armed with a warrant . . . from entering his home. At the most, the “refusal of admittance” requirement gives him a few moments to decide whether or not he will open the door himself. [Citation.] [¶] . . . [L]ittle, if anything is gained by permitting the occupant to open the door to an entry that he cannot legally resist.’ ” (People v. Uhler (1989) 208 Cal:App.3d 766, 770 [256 Cal.Rptr. 336], quoting United States v.

Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 11-12.) While 15 to 20 seconds might be too short of a wait for “a house of gargantuan proportions” or a search “during a time normally associated with sleeping” (see People v. Elder, supra, 63 Cal.App.3d at p. 739), here the residence was only 1,500 to 1,800 square feet in size and the search occurred in the early evening. “If an acknowledging voice from within had responded, 20 seconds may have been too short a time to wait.” (Ibid.) However, the officers here heard nothing; no sound of feet approaching the door and no voice suggesting a response was forthcoming.

Under the totality of the circumstances presented in this matter, we conclude the officers substantially complied with the knock-notice requirement and suppression of the evidence was properly denied. Disposition The judgment is affirmed. MORRISON, J. I concur. I agree the knock-notice (or knock and announce) rule, although codified in California (Pen. Code, §§ 844 [arrests], 1531 [search warrants]), reflects a common law rule which is an aspect of what is reasonable under the Fourth Amendment. (Wilson v.

Arkansas (1995) 514 U.S. 927, 930 [115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, 980] (Wilson).) Prior to Proposition 8, the California Supreme Court came to a similar conclusion. (Greven v. Superior Court (1969) 71 Cal.2d 287, 290 [78 Cal.Rptr. 504, 455 P.2d 432]; see Duke v. Superior Court (1969) 1 Cal.3d 314, 325 [82 Cal.Rptr. 348, 461 P.2d 628].) The rule protects privacy of individuals in their homes, protects innocent guests, prevents violent confrontations between peace officers and citizens, and protects “ ‘police who might be injured by a startled and fearful householder.’ ” (People v.

Peterson (1973) 9 Cal.3d 717, 723 [108 Cal.Rptr. 835, 511 P.2d 1187].) But this does not mean every search which violates the knock-notice rule requires exclusion of evidence. I agree with Justice Hull that the severity of a knock-notice violation must be assessed before concluding the Fourth Amendment has been violated. Wilson held knock-notice forms a component of the Fourth Amendment reasonableness calculation, but did not hold all knock-notice violations were Fourth Amendment violations. The dissenting opinion fails to address this point.

The lead opinion does not hold that substantial compliance excused the knock-notice violation, only that it serves to avoid the need to apply the draconian remedy of excluding relevant evidence from the trial. In other words, it takes more than a close call, that is, waiting a few more seconds, to create a search that is unreasonable under the Fourth Amendment. The use of the term “substantial compliance” is confusing as it obscures the Fourth Amendment analysis.

Only after a court finds a violation of the knock-notice statute does the question whether there was an unreasonable search under the Fourth Amendment arise. The phrase “substantial compliance” sometimes conflates two distinct questions. Did the search violate the knock-notice statute and did other facts excuse the violation? In this case, an unexcused statutory knock-notice violation occurred. But that does not mean that there was an unreasonable search that would compel the exclusion of relevant evidence.

Even if the facts did show a Fourth Amendment violation, I write separately to explain another ground for affirmance: inevitable discovery. The trial court did not address this principle, although it was briefed and argued by the district attorney in the trial court. In 1982 the People of the State of California amended the California Constitution to require that except for a statute passed by two-thirds of the Legislature, and exceptions not here applicable, “relevant evidence shall not be excluded in any criminal proceeding[.]” (Cal. Const., art.

I, § 28, subd. (d).) This state constitutional provision, the “Right to Truth-in-Evidence,” cannot trump exclusionary rules that are compelled by the Constitution of the United States. (In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744].) The application of inevitable discovery to knock-notice violations was briefed before the United States Supreme Court by the California Attorney General, but the court declined to decide the point. (Wilson, supra, 514 U.S. at p. 937, fn. 4 [115 S.Ct. at p. 1919, 131 L.Ed.2d 984].) The question has not been decided by the California Supreme Court in any post-Proposition 8 decision.

While the California Supreme Court has held, generally, that violation of knock-notice. makes a search “ ‘unreasonable’ ” (Duke v. Superior Court, supra, 1 Cal.3d at p. 325; Greven v. Superior Court, supra, 71 Cal.2d at p. 290), these cases predate Proposition 8 and also predate the seminal United States Supreme Court decision explaining the inevitable discovery doctrine, Nix v. Williams, decided in 1984. (Nix v. Williams (1984) 467 U.S. 431, 442-443 [104 S.Ct. 2501, 2508-2509, 81 L.Ed.2d 377] (Nix).) Cases are not authority for propositions not considered. (Hart v.

Burnett (1860) 15 Cal. 530, 598.) I am aware that People v. Neer (1986) 177 Cal.App.3d 991 [223 Cal.Rptr. 555] concluded, over a vigorous dissent, a knock-notice violation requires exclusion, even after the passage of Proposition 8. However, Neer did not consider the inevitable discovery issue. To the extent the Neer majority opinion implies a California Court of Appeal cannot apply Proposition 8 to reach a result contrary to a California Supreme Court decision predating Proposition 8 (Neer, 177 Cal.App.3d at p. 999), I disagree.

There is also one Fourth District Court of Appeal opinion to the contrary, but the decision, as even defendant concedes in his brief, contains no analysis of the question. (See Loverde v. Superior Court (1984) 162 Cal.App.3d 102, 104, 105 [208 Cal.Rptr. 134] [prosecution conceded error in applying doctrine].) The issue is open for decision. Opponents of the application of inevitable discovery to knock-notice violations argue it eviscerates the knock-notice rule. I disagree. The rule stands; only the remedy differs. Given the clear command of

article I,

section 28, subdivision (

d) of our Constitution, we are not free to favor the exclusionary remedy over other remedies. As stated by our Supreme Court, “[T]he members of this court have diverse views regarding the importance and proper scope of the exclusionary rule as it has developed over the years.

Faced with a constitutional amendment adopted by initiative, however, we are obliged to set aside our personal philosophies and to give effect to the expression of popular will, as best we can ascertain it, within the framework of overriding constitutional guarantees.” (In re Lance W., supra, 37 Cal.3d at p. 879.) There are ways to deter illegal conduct by peace officers without letting criminals escape punishment, including training, discipline, consent decrees and civil damage actions. (See, e.g., Bivens v. Six Unknown Fed.

Narcotics Agents (1971) 403 U.S. 388 [91 S.Ct. 1999, 29 L.Ed.2d 619].) In California, “The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing [constitutional] rights, except as required by the Constitution of the United States.

Whether they are wise in that decision is not for our determination; it is enough that they have made their intent clear.” (In re Lance W., supra, 37 Cal.3d 873, 887.) The dissent argues that “an unenforceable rule—one whose violation has no adverse consequences for the violator—is in effect no rule at all.” (Dis. opn., post, at p. 1233.) This is true, but the exclusion of relevant evidence is not the only and not even the most effective technique to enforce the statutory and constitutional “knock-notice” rule.

We, the judiciary, cannot claim that we and we alone wield the only power or possess the only wisdom to enforce rules. Under the federally mandated exclusionary rule, the “fruits” of illegal conduct by peace officers are excluded, to deter Fourth Amendment violations. (Wong Sun v. United States (1963) 371 U.S. 471, 484-486 [83 S.Ct. 407, 415-417, 9 L.Ed.2d 441, 453-454]; Mapp v.

Ohio (1961) 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933].) Exclusion is not always required. “A ‘fruit’ may be admitted if there was an independent source for it; it would have been found anyway; or the path from the illegality to the ‘fruit’ is too ‘attenuated.’ ” (People v.

Neely (1999) 70 Cal.App.4th 767, 785 [82 Cal.Rptr.2d 886].) The second of these exceptions is referred to as the inevitable discovery rule. “The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections.

This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.” (Nix, supra, 467 U.S. 431, 442-443 [104 S.Ct. 2501, 2508, 81 L.Ed.2d 377, 386-387].) Nor, however, is it to be put in a worse position. (Id. at pp. 443-445 [104 S.Ct. at pp. 2508-2510, 81 L.Ed.2d at pp. 387-388]; see People v.

Neely, supra, 70 Cal.App.4th at p. 787 [“the desire to punish and deter misconduct by government agents must not be overvalued”].) “Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” (Nix, supra, 467 U.S. at p. 446 [104 S.Ct. at p. 2510, 81 L.Ed.2d at p. 389].) The rule poses a factual causation question: Would the evidence have been found, absent the illegal conduct? “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received.” (Nix, supra, 467 U.S. at p. 444 [104 S.Ct. at p. 2509, 81 L.Ed.2d at pp. 387-388], fn. omitted.) As Judge Richard Posner recently explained: “Concern with the frequent disproportionality of the sanction of exclusion has led judges to create exceptions to the exclusionary rule, itself a rule of federal common law (that is, of judge-made law) rather than a part of the Fourth Amendment itself and so amenable to judge-made adjustment. . . . [T]he exception that is most pertinent to this case goes by the name of ‘inevitable discovery’ and refuses to suppress evidence seized in an unconstitutional search if it is shown that the evidence would ultimately have been seized legally if the constitutional violation had not occurred. [Citations.] In other words, just as careless or even willful behavior is not actionable as a tort unless it causes injury, [citation], so there must be a causal relation between the violation of the Fourth Amendment and the invasion of the defendant’s interests for him to be entitled to the remedy of exclusion.

In a case of inevitable discovery, the defendant would by definition have been no better off had the violation of his constitutional rights not occurred, because the evidence would in that event have been obtained lawfully and used lawfully against him.” (U.S. v. Stefonek (7th.

Cir. 1999) 179 F.3d 1030, 1035.) The United States Supreme Court has not suggested the inevitable discovery rule applies to some, but not other, exclusionary rules and, in particular, it has left open the application of the exception to situations involving violations of the knock-notice rule. (Wilson, supra, 514 U.S. at p. 937, fn. 4 [115 S.Ct. at p. 1919, 131 L.Ed.2d at p. 984]; see United States v.

Ramirez (1998) 523 U.S. 65, 72, fn. 3 [118 S.Ct. 992, 997, 140 L.Ed.2d 191, 198-199] [reserving whether “there was sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression”].) I know of no principled reason not to apply the general rule that inevitably discovered evidence may not be excluded in such cases.

The dissent would apply decisions predating Nix, supra, 467 U.S. 431 [104 S.Ct. 2501, 81 L.Ed.2d 377], but offers no reason why the later-announced inevitable discovery rule of Nix does not apply in knock-notice cases, except that it has never been done before. Here, assuming the decision of the trial court was correct, the error was not waiting long enough after knocking.

Had the officers waited a few seconds longer, the trial court would have found they were justified in concluding the house was empty or occupants were impliedly refusing admittance, or at least, that the officers waited long enough to trigger the “substantial compliance” rule, not passed on by the trial court. (See People v. Trujillo (1990) 217 Cal.App.3d 1219, 1227-1228 [266 Cal.Rptr. 473].) But there is no question the officers were going to enter. What difference would those few seconds have made to the search? None.

It is undisputed the only occupant of the house was not poised to destroy the evidence in those few moments which would have made the difference between compliance and noncompliance with the knock-notice rule. Elizabeth Cunnagin was surprised and “seemed a little hurt” when she learned what the deputies found. Defendant’s theory in the trial court was Cunnagin had nothing to do with the drugs, and “There was nothing to indicate that she had been attempting to destroy evidence.” Accordingly, the evidence was not discovered because of the knock-notice violation, it would have been found anyway.

Its discovery and seizure were “inevitable.” I am joined in my view by persuasive dicta from a federal circuit court and by the decisions of the Michigan Supreme Court. Judge Easterbrook found it unnecessary to decide the issue in a recent case, where even as a team of officers battered in the front door of a house, another team apprehended the defendant on the back lawn. But he said, “A causal link between unlawful police conduct and a seizure is necessary but not sufficient to justify the exclusion of reliable evidence.

The inevitable discovery doctrine [citation], and the independent source doctrine, [citation], show that violations of the fourth amendment do not automatically lead to suppression even when the constitutional wrong plays a causal role in the seizure (at least, in the timing of the seizure).

Because the exclusionary rule ‘detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions’, [citation], the Supreme Court is unwilling to sanction its use in marginal cases. [Citation.] Wilson reserved the question whether (and, if so, how) the inevitable-discovery and independent-source exceptions to the exclusionary rule apply to searches deemed unreasonable only because officers armed with a warrant failed to make a proper announcement at the door. [Citation.] It is hard to understand how the discovery of evidence inside a house could be anything but ‘inevitable’ once the police arrive with a warrant; an occupant would hardly be allowed to contend that, had the officers announced their presence and waited longer to enter, he would have had time to destroy the evidence.” (U.S. v.

Jones (7th Cir. 1998) 149 F.3d 715, 716-717, italics omitted.) I agree with all but the last passage: Because it is undisputed in this case the only occupant was unaware of—and thus unprepared to destroy—the contraband, we do not have occasion to consider the application of the exclusionary rule, the independent source doctrine or the inevitable discovery doctrine, to a case where an occupant would have had a chance to destroy evidence of his criminality. The Michigan Supreme Court, in post-Wilson decisions, has applied the inevitable discovery exception to knock-notice violations. In People v.

Stevens (1999) 460 Mich. 626 [597 N.W.2d 53] (Stevens), the police had a search warrant, knocked, waited 11 seconds, then forced their way in. (Stevens, 597 N.W.2d at p. 56.) The court found “excluding the evidence puts the prosecution in a worse position than it would have been in had there been no police misconduct. Therefore, the inevitable discovery exception to the exclusionary rule should be available.” (Id. at p. 62.) “Even though the method of entry into the dwelling violated the knock-and-announce principles, the evidence inevitably would have been discovered.

There are both state and federal sanctions for such violations that serve as deterrents for police misconduct that are less severe than the exclusion of the evidence. Additionally, exclusion of the evidence will put the prosecution in a worse position than if the police misconduct had not occurred. Therefore, we hold that the trial court erred in granting the defendant’s motion to suppress the evidence because of the violation of the Fourth Amendment.” (Id. at p. 64.) The court in Stevens mentions U.S. v.

Marts (8th Cir. 1993) 986 F.2d 1216, 1219, which predates Wilson, supra, 514 U.S. 927 [115 S.Ct. 1914, 131 L.Ed.2d 976], Marts states, “The government urges that, even if the officers had waited an additional period of time, the exact same search would have been conducted and the exact same evidence would have been seized. Thus, this ‘technical violation’ should not exact the full remedy provided by the law.

Longstanding constitutional principles regarding unlawful search and seizure bar the government’s use of the fruits of an unlawful search simply because the officers ‘would have found it anyway.’ ” This reads Nix out of existence; the decision makes no effort to explain why the inevitable discovery rule should not apply. Marts is followed by Mazepink v. State (1999) 336 Ark. 171 [987 S.W.2d 648], certiorari denied sub nom. Arkansas v. Mazepink (1999) 528 U.S. 927 [120 S.Ct. 321, 145 L.Ed.2d 250], which is unpersuasive for the same reason: It ignores the holding and rationale of Nix.

The Michigan courts have adhered to Stevens in subsequent cases. (People v. Vasquez (1999) 461 Mich. 235 [602 N.W.2d 376] [after remand]; see also People v. Howard (1998) 233 Mich.App. 52, 61 [595 N.W.2d 497, 502] [“We do not believe this timing error rises to the level of unreasonable police conduct”], leave to app. den. by People v. Howard (Mich. 1999) 603 N.W.2d 247.) I agree the evidence was found following a knock-notice violation. That violation was minor and did not render the search unreasonable within the meaning of the Fourth Amendment.

Even if such violation made the search unreasonable, this court has a duty to apply the inevitable discovery exception to such violations, pursuant to Nix, supra, 467 U.S. 431 [104 S.Ct. 2501, 81 L.Ed.2d 377], The evidence would have been discovered regardless of the knock-notice violation. Exclusion of evidence here would result in a defense windfall and would serve no deterrent purpose. Because it is not required by the United States Constitution, exclusion would violate the clear command of the California Constitution.

Because I concur with Justice Hull as to the lack of a Fourth Amendment violation, and because in my view even with such a violation the evidence was not subject to exclusion, it is not necessary for me to express any view as to the standing issue. The trial court properly denied the motion to suppress, therefore the judgment should be affirmed. The facts are taken from the transcript of the hearing on defendant’s motion to suppress evidence (Pen. Code, § 1538.5). Cunnagin denied she had music playing, insisting she needed silence to study.

The trial court made no factual finding as to this conflict in the evidence. Of the other two out-of-state decisions, Com. v. Carlton (1997) 549 Pa. 174 [701 A.2d 143] involved a defendant who produced evidence showing he used the searched residence as his address and the court concluded he had demonstrated the requisite privacy interest to raise a knock-notice claim. However, the court based this holding on Pennsylvania law without discussing Wilson or the Fourth Amendment. (Com. v. Carlton, supra, 549 Pa. at pp. 179-180 [701 A.2d at pp. 145-146].) In Righter v.

State (Del. 1997) 704 A.2d 262, the defendant lived in his mother’s apartment but did not own it, pay rent, or do maintenance and the court concluded he had no property interest sufficient to allow him to raise a knock-notice challenge.

The defendant had conceded his absence from the residence at the time of the police entry deprived him of any other basis for claiming a Fourth Amendment violation. (Id. at pp. 266-267.) Following briefing on appeal, we directed the parties to submit supplemental letter briefs on the following: “The trial court found that the officers waited approximately 15 to 20 seconds from the first knock and announcement at defendant’s door to the moment they entered his residence.

Under the totality of the circumstances, did the trial court err by concluding as a matter of law that this was an unreasonably short time to wait before entering?” We also requested supplemental letter briefs on whether, assuming a knock-notice violation, the evidence seized at the residence was a suppressible fruit of that violation or whether the evidence would have been discovered anyway.

Because the trial court found defendant did not have a sufficient privacy interest in the premises to permit him to seek suppression of the evidence, it had no reason to consider whether suppression was an appropriate remedy under the circumstances. The dissent argues Tacy and Trujillo are inapposite because, in both cases, the officers were aware somebody was inside when they forced entry. According to the dissent, this matter is controlled by Jeter v. Superior Court (1983) 138 Cal.App.3d 934 [188 Cal.Rptr. 351], because there, as here, the police were not aware anyone was present when they entered.

The dissent’s analysis—lining up the prior cases and deciding which one is closest factually—suggests an unwillingness to confront the legal principles at issue. In Jeter, the court merely concluded the officers violated Penal Code

section 1531 when they knocked and announced, waited a “ ‘few seconds,’ ” knocked and announced again, waited “ ‘five or ten seconds’ ” and then entered. (Jeter, supra, 138 Cal.App.3d at pp. 936-937.) The court applied the pre-Wilson California rule that a violation of Penal Code

section 1531 alone renders the search unreasonable under the Fourth Amendment. (Jeter, supra, 138 Cal.App.3d at p. 938.) The court did not consider any other factors in assessing reasonableness of the search and did not discuss substantial compliance. Cases are not authority for propositions not considered therein. (McKeon v. Mercy Healthcare Sacramento (1998) 19 Cal.4th 321, 328 [79 Cal.Rptr.2d 319, 965 P.2d 1189].) Under both the substantial compliance doctrine and, as we shall explain, proper Fourth Amendment analysis, the dissent’s reliance on Jeter is misplaced.

The dissent accuses us of undertaking a post hoc analysis of whether the policies underlying the knock-notice requirement were implicated by the search in this matter. That is simply untrue. Unlike the dissent, which apparently considers it dispositive that the officers waited only 15 to 20 seconds before entering, we consider under the totality of the circumstances that the officers approached the front of the residence, they knocked and announced twice, they opened the door using the handle rather than breaking down the door, and they did not rush the occupant.

This is not an after-the-fact rationalization but a description of the reasonable means by which the officers initiated their search. Although we indicate there is nothing to suggest the officers or occupant were ever at risk, this is based on the officers’ conduct leading up to the entry, which was not threatening, rather than what transpired thereafter.

The suggestion that we have somehow created a “hindsight-makes-right” rule is nothing more than an attempt in vain to draw attention away from the dissent’s refusal to consider the totality of the circumstances presented in this matter to determine if the search was reasonable.