People v. Uhler

Opinion

CROSBY, J.

George Uhler pleaded guilty to possessing marijuana for sale but contends the contraband was unlawfully seized. We find the officer substantially complied with the knock-notice provisions of Penal Code section 1531 and suppression would not be available in any event because compliance was excused under the federal “useless gesture” exception.

I

On the afternoon of September 23, 1986, Newport Beach officers went to George Uhler’s residence to execute a search warrant. Officer David Byington, dressed in a marked police raid jacket, approached the front entry and displayed his badge through a closed screen door. Three people were seated on a couch inside, and Byington believed at least two made eye contact with him as he announced his identity and possession of the warrant. He demanded entry; but without waiting for a response, the officer opened the screen door, entered, and ordered everyone to remain seated. No other persons were in the house, but the officers found 150 pounds of marijuana in

[769]

one of the bedrooms. At the hearing on the defense motion to suppress the contraband, Byington did not explain his failure to give the occupants an opportunity to admit him.

II

Penal Code section 1531 authorizes a police officer’s entry into a residence to execute a search warrant “if, after notice of his authority and purpose, he is refused admittance.” Although compliance may be excused by exigent circumstances (see

United States

v.

McConney

(9th Cir. 1984) 728 F.2d 1195, 1206;

People

v.

Neer

(1986) 177 Cal.App.3d 991, 995 [223 Cal.Rptr. 555]), no such claim is made here. Section 1531 is of common law origin and constitutional dimension. Absent exigent circumstances, the Fourth Amendment and article I, section 13 of the California Constitution are generally violated when officers force entry without allowing the occupants the opportunity to admit them. (See