Drug conviction reversed over ‘knock-notice’ failure – Union Tribune

Drug conviction reversed over ‘knock-notice’ failure Posted on October 7, 2003 at 01:04:03 PM [b]Drug conviction reversed over ‘knock-notice’ failure[/b] By Greg Moran UNION-TRIBUNE STAFF WRITER October 7, 2003 An appeals court reversed the drug-selling conviction of a Lemon Grove woman yesterday because sheriff’s deputies did not follow “knock-notice” laws requiring police to announce their presence before conducting a search. In a 2-1 decision, the court ruled the search was illegal because it violated the woman’s constitutional rights against illegal search and seizure and drugs found in her home should not have been allowed as evidence against her. The decision by the San Diego-based 4th District Court of Appeal was certified for publication, meaning it can be cited as precedent in other cases. The case illuminates several issues regarding police searches of homes of people on parole or probation and what procedures have to be followed, said Laurel Nelson Smith, the appeals lawyer for defendant Mildred Murphy. Sheriff’s narcotics investigators went to Murphy’s home the afternoon of Nov. 7, 2001, when a neighbor complained about suspicious activity going on at the residence, according to the decision. When Detective Alberto Santana arrived, he said he witnessed a drug transaction and decided to search Murphy’s home. Murphy was on probation for a previous conviction, and, as a condition of probation, she had agreed to warrant-less searches of her home and property. Such conditions, known as waivers, are common for people on probation. As Santana and his team approached the house wearing bulletproof vests and hats emblazoned with the words “Sheriff’s Narcotics” on them, they encountered a man leaving from a side door. Santana drew his gun and ordered the man to the ground. He testified later that he shouted “Sheriff’s Department! Probation search! Get on the ground!” About five to seven seconds later, Santana and the other investigators entered the house, without knocking. Santana testified at a preliminary hearing he did not identify himself because he believed people in the house would destroy evidence, try to flee or arm themselves. Further, he said, he believed anyone in the house would have heard him yelling out his identification to the man he had just encountered. Once inside, deputies found Murphy at the opposite end of the house in a bedroom with her invalid ex-husband. She admitted selling drugs, and investigators found six baggies containing methamphetamine. Murphy’s lawyer asked that the drug evidence be suppressed before trial, but Superior Court Judge Larrie Brainard denied the request. Brainard ruled that while the investigators had no reason to believe drugs were being destroyed or people were getting ready to flee, the shouting during the arrest of the man outside the home was enough to satisfy the knock-notice requirements. The appeals court disagreed. Associate Justice Cynthia Aaron wrote that the U.S. Supreme Court has ruled that police can enter a home without knocking only as long as it can be clearly shown that announcing their presence would be either dangerous or futile. Aaron, joined by Associate Justice Terry O’Rourke, said that in this case investigators had only a general fear that evidence would be destroyed or someone would try to flee. Thus, they were obligated to knock and announce their presence. In dissent, Associate Justice Patricia Benke said the deputies had complied with the law and it was “not unreasonable” given the circumstances for them to enter unannounced. Murphy pleaded guilty when the evidence was not suppressed and was placed on probation, ordered to spend 210 days with an electronic monitoring bracelet restricting her movements, and fined $550. Deputy Attorney General Heather Wells said the ruling was disappointing and was being reviewed to determine if it would be appealed. Smith, Murphy’s lawyer, welcomed the decision. She said it affirms the rule that police need clear reasons not to announce their presence before conducting a search. “This blanket reason – ‘because evidence might be destroyed’ – is not good enough,” she said. Greg Moran: (619) 542-4586; greg.moran@uniontrib.com Source: http://b4.boards2go.com/boards/board.cgi?action=read&id=1065549843&user=SoCA