People v. Morgan

Opinion

CROSBY, J. —John Allen Morgan pleaded guilty to possession of cocaine for sale after his motion to suppress evidence was denied. Claiming an unannounced police entry into his home was unlawful, he appeals. We agree and reverse.

I

At 2 a.m. on November 20, 1985, a neighbor telephoned police to report loud noises and shattering glass at Morgan’s San Clemente home. Officer Lervold and Sergeant Falk received the dispatch and arrived at the residence, á house with attached garage, within minutes. The property was [819]surrounded by a six-foot fence with a locked gate. They heard, but could not see, someone yelling at the rear of the home.

The officers raised the closed but unlocked garage door, walked through the garage, and entered the rear yard through a side door. Once there, they saw a slightly open French door, with a shattered pane, and broken glass on the ground. Lervold approached the door and illuminated the room inside with his flashlight. A man was sitting on a mattress swaying in place, and the room was in disarray: A chest of drawers was overturned; and a lamp, ashtrays, and money were scattered on the floor. The drawers and their contents had not been disturbed, however. Suspecting a burglary was in progress, the officers entered the home and handcuffed the man.

A third officer responding to the dispatch searched for other persons. He found Morgan, who said he lived there. The officer asked for identification and followed Morgan into a bedroom. En route he observed in plain sight in the living room a partially burned marijuana cigarette, unbumed marijuana residue, a “cocaine sifter” with a white crystalline substance on it, a paper bindle containing a white substance, and a tablespoon with a white powder on it. In an open drawer in the bathroom he noticed a small vial, razor blades, “coke spoon,” mirror, parts of another cocaine sifter, a nearly empty plastic baggie with a white powdery substance, and other plastic baggies.

Morgan was arrested at the scene for possession of a controlled substance for sale. Based on the officers’ observations, a search warrant was obtained and the drugs and paraphernalia seized.

In the superior court Morgan moved to suppress the evidence seized from his home. Among other arguments, he maintained the officers did not have probable cause to suspect a burglary was in progress when they entered the garage and violated the knock-notice provisions of Penal Code section 844 in so doing. Citing the uncontradicted testimony that the officers believed a burglary was being committed based on their observations in the enclosed backyard, i.e., the slightly open door and the broken glass, the superior court found there was sufficient cause to enter the home without complying with section 844 and denied the motion.