Neer

Dana Neer appeals (Pen. Code, § 1538.5, subd. (m)) 1 after pleading guilty to several controlled substance violations. He claims his suppression motion should have been granted because: (1) the warrant issued to search his home was not supported by probable cause; (2) the search pursuant to the defective warrant cannot be salvaged by the good faith exception to the exclusionary rule (United States v. Leon (1984) 468 U.S. 897 [ 82 L.Ed.2d 677 , 104 S.Ct. 3405 ]); and (3) the warrant was executed in violation of the knock-notice requirements of section 1531. We agree with the third contention and conclude the section 1531 violation requires exclusion of the evidence seized in the subsequent search. Consequently, we do not address the first two issues raised by Neer.

I

On October 10, 1983, police officers obtained a search warrant for Neer’s home. About 8:25 that evening, Detective Klein and three other officers arrived to serve the warrant. The porch light was on. Klein, wearing a police raid jacket and hat, approached the house with Officer Stedman. The officers detained Neer, who was working in the front yard, but were then unaware of his identity. Stedman shouted,…

I dissent. The majority continues to churn ancient history, an occupation better left to archeologists and historians than judges.

*1002 I

Ignoring a constitutional amendment (Cal. Const., art. I, § 28, subd. (d)) and compelling recent authority from the California Supreme Court (In re Lance W. (1985) 37 Cal.3d 873 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ]), the majority holds the evidence should have been suppressed in this case because the officers executing the warrant failed to comply with Penal Code section 1531. As the majority recognizes, Duke v. Superior Court (1969) 1 Cal.3d 314 [ 82 Cal.Rptr. 348 , 461 P.2d 628 ] and Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ] require us to conclude the entry into this home violated the Fourth Amendment. (See also People v. Rosales (1968) 68 Cal.2d 299 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ].) In analyzing the application of the exclusionary rule after Lance W, however, my colleagues have refused to follow binding precedent; and I cannot join them.

The California Supreme Court determined in Duke , “we must hold that an entry effected in violation of the provisions of section 844 or its…