SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Cal.3 rd 263, 276; Payton v. New York (1980) 445 U.S. 573
[63 L.Ed.2 nd 639]. (See above)
When armed with a search warrant, officers may use a ruse
to induce the occupants to open the door. This is not a
violation of the knock and notice requirements. (People v.
Rudin (1978) 77 Cal.App.3 rd 139; People v. McCarter
(1981) 117 Cal.App.3 rd 894, 906.)
Also, it is not illegal to use an undercover agent during a
criminal investigation who makes entry upon the
occupant’s invitation, despite the lack of probable cause.
Such a situation does not involve a need to avoid a violent
confrontation. (Hoffa v. United States (1966) 385 U.S.
293 [17 L.Ed.2 nd 374].)
Standing; An Absent Tenant: If the subject to be arrested, or the
owner of a home which is to be searched, is not home at the time
of the execution of the entry, whether or not he or she has
“standing” to contest a failure to comply with the P.C. §§ 844 or
1531 knock and notice requirements is subject to a split of opinion.
(See Hart v. Superior Court (1971) 21 Cal.App.3 rd 496, 500-504.)
In discussing the knock and notice requirements pursuant to
P.C. § 1531 (serving a search warrant), it has been
determined by at least one appellate court that the
defendant did not need to be home to assert standing to
challenge a knock and notice violation, in that defendant
still had a privacy interest in his residence, and an interest
in protecting his fiancée who was home at the time.
(People v. Hoag (2000) 83 Cal.App.4 th 1198.)
Hart v. Superior Court, supra, at pp. 500-504, and federal
authority (United States v Silva (9 th Cir. 2001) 247 F.3 rd
1051, 1058-1059.), are all to the contrary.
© 2012 Robert C. Phillips. All rights reserved
However, entering the house to arrest a subject without
probable cause (or “reasonable grounds,” see below) to
believe the suspect is even home is a Fourth Amendment
violation in itself. (Hart v. Superior Court, supra, at p.
502; “Section 844 by its own terms provides that the entry
can only be made if the person to be arrested is actually
present or if the arrestor has reasonable grounds to believe
he is present.” See also People v. Jacobs (1987) 43 Cal.3 rd
472, 478-479; and United States v. Gorman (2002) 314
F.3 rd 1105; interpreting “reasonable grounds” or “a reason
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