Hoag

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…

For reasons stated in Justice Hull’s opinion, I concur that defendant has standing to challenge the legality of the search and seizure. I respectfully dissent from the remainder of the lead opinion’s conclusions. I would hold that the officers’ conduct violated the knock-notice rule, the violation is not excused by “substantial compliance,” and no exception to the knock-notice rule permits the unlawfully seized evidence to come in. Therefore, this court should reverse and remand with directions to grant defendant’s motion to suppress the evidence.

I

The lead opinion decides the case against defendant by invoking “substantial compliance.” In other words, granting that a knock-notice violation occurred, the lead opinion brands it a mere technicality which did not frustrate the purposes of the knock-notice rule. I cannot agree. The officers’ violation of knock-notice was not merely technical, and the lead opinion’s novel extension of the “substantial compliance” doctrine is bad law and bad policy.

The California Supreme Court held long ago that when evidence is illegally seized in violation of knock-notice and the violation is not excused by exigent circumstances, the evidence…

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 knocknotice 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.

Defendant lived in Rocklin, California, with his fiancee, 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 baby sitter. Defendant left around 7:00 or 7:15 p.m. and…