Opinion
Case No. 04-40068-01-RDR.
October 6, 2004
MEMORANDUM AND ORDER
Defendant is indicted on charges of possessing and receiving firearms, ammunition and explosive materials. The charges arise from a search of a residence that defendant maintained with Caroline Vigil. This case is now before the court upon defendant's motion to suppress.
Defendant's motion to suppress alleges that evidence from the search should be suppressed because the officers executed the search at 4:45 a.m. and failed to knock and announce prior to entering his residence. Defendant contends that this violated the Fourth Amendment's ban on unreasonable searches and seizures.
Facts
The search of defendant's residence was conducted pursuant to a search warrant issued by a state court judge. The affidavit for the search warrant was made by Eric Coffman, a detective with the Junction City-Geary County Drug Task Force. Detective Coffman is a well-experienced police officer with hundreds of hours of drug enforcement training. He and a SWAT team of other state or local law enforcement officers executed the search warrant.
The affidavit for the search warrant begins by describing a 1999 search of another residence defendant maintained with Caroline Vigil. That search was also conducted pursuant to a warrant. According to the affidavit, the search discovered 40 grams of marijuana, three rifles in a gun safe in the bedroom, a handgun between the bed frame and the mattress, and another handgun in a clothes basket in the hallway just outside the master bedroom. According to the affidavit, defendant and Vigil were located between the living room and the kitchen at the time the officers entered the residence.
During the hearing upon the instant motion to suppress, defendant introduced an exhibit containing reports made after the 1999 search. The reports indicate that the officers forcibly entered the home at about 11:30 p.m. after knocking and waiting for a response three separate times. The lights were on in the house. No resistance from defendant or Vigil was reported by the officers.
The search warrant affidavit goes on to detail that on August 12, 2003 an anonymous crime stoppers report was received indicating that there were automatic weapons and "narcotics" in defendant's garage. Almost two months later, on October 7, 2003, a search of defendant's trash found a "small amount" of marijuana and marijuana seeds, as well as cloth patches that might be used to clean firearms.
On the same day, October 7 at 3:10 p.m., pursuant to the affidavit, a search warrant was issued to look for and seize marijuana, drug-related paraphernalia and documents. The affidavit did not request permission to search for firearms, and the warrant does not mention firearms as an item to seize. Detective Coffman testified that he did not believe the officers had probable cause to search for firearms at the residence, but that there was a reasonable suspicion that firearms were kept there.
The affidavit requested a no-knock search warrant "for officer's safety based on Mr. Nielson's past history of possessing firearms and the potential for violence." The affidavit does not describe any past violent acts by defendant or Vigil. The affidavit also does not describe a suspicion that defendant or Vigil were involved in drug trafficking. A no-knock search warrant was issued.
The warrant was executed by a SWAT team the next day, October 8, 2003 at 4:45 a.m. The officers did not knock and announce before forcibly entering the residence. They used a 35-pound battering ram to force open the door. Detective Coffman entered the residence approximately one minute after the first officers made their entry. Coffman testified that when he entered, defendant had no clothes on and Vigil was wearing a bathrobe.
Detective Coffman further testified that he asked for a no-knock warrant because he was concerned that the marijuana he expected to find could be easily destroyed if the officers knocked and announced their presence before entering, and because he was concerned about the danger of the firearms he expected to find. He stated that a fellow officer who participated in the 1999 search told him he suspected that prior to the officers' entry of defendant's house in 1999, someone in the house may have been holding the gun that was found in the clothes basket.
The crime stoppers tip referred to in the affidavit mentioned that narcotics and an automatic weapon could be found in the garage of defendant's residence. The residence did not contain an interior door to the garage, although this fact was not known to the officers prior to executing the warrant.
Standards
In U.S. v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004), Tenth Circuit summarized the standards to apply in this matter.
In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of a crime by, for example, allowing the destruction of evidence. Richards v. Wisconsin, 520 U.S. 385, 394 (1997). Similar consider-ations justify the nighttime execution of a search warrant. See United States v. Tucker, 313 F.3d 1259, 1265-66 (10th Cir. 2002) (nighttime execution reasonable given risk of destruction of evidence, personal injuries to nearby residents, and property damage due to volatile nature of chemicals used to manufacture methamphetamine). In reviewing a challenge to the no-knock or nighttime execution of a search warrant, we review the execution from the perspective of reasonable officers who are legitimately concerned not only with doing their job, but with their own safety. United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997).
"Reasonable suspicion" in the context of a Terry stop has been defined to require "a particularized and objective basis" for suspecting a person of criminal activity. U.S. v. Arvizu, 534 U.S. 266, 273 (2002). It requires more than a mere "hunch," but it need not rise to the level required for probable cause, and "it falls considerably short of satisfying a preponderance of the evidence standard." Id. at 274.
The interests protected by the Fourth Amendment in cases like the one at bar should not be unduly minimized according to the Supreme Court.
While it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly minimized. As we observed in Wilson v. Arkansas, 514 U.S. 927, 930-32 (1995), the common law recognized that individuals should be provided the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry. These interests are not inconsequential.
Additionally, when police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry. . . . The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.
Richards v. Wisconsin, 520 U.S. 385, 393 n. 5. See also, Miller v. United States, 357 U.S. 301, 313 (1958) ("The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.");Jones v. United States, 357 U.S. 493, 498 (1958) ("[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home."); Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (midnight entry into a home was an "extremely serious intrusion"); U.S. v. Callwood, 66 F.3d 1110, 1112-13 (10th Cir. 1995) ("a nighttime search is particularly intrusive"); U.S. v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (recognizing the common law's "strong aversion" to nighttime searches, particularly such searches of a home).
As determined in Richards, the fact that this was a drug investigation does not by itself justify a no-knock approach, although such investigations "may frequently present circumstances warranting a no-knock entry." 520 U.S. at 394. "Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce require-ment." Id.; see also, U.S. v. Colonna, 360 F.3d 1169, 1176 (10th Cir. 2004) (mere likelihood that drugs or weapons will be found in the searched premises alone does not justify a no-knock or nighttime execution of a search warrant); U.S. v. Jenkins, 175 F.3d 1208, 1214 (10th Cir. 1999) (mere likelihood that drugs or weapons will be found will not alone support the reasonableness of a certain waiting period after announcing and prior to entering). Additionally, in cases in which there was some indication that a firearm was present in the residence to be searched, this information alone has been held insufficient to justify the failure to knock and announce. SeeU.S. v. Moore, 91 F.3d 96, 98 (10th Cir. 1996); U.S. v. Bates, 84 F.3d 790, 795 (6th Cir. 1996); U.S. v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993)); see also, U.S. v. Granville, 222 F.3d 1214, 1219 (9th Cir. 2000) (generalized fears that drug dealers keep weapons is not enough to establish exigency required for a no-knock search).
The Tenth Circuit has also stated in past cases that the exceptions to the knock and announce requirement should not swallow the rule. SeeMoore, 91 F.3d at 98; U.S. v. Stewart, 867 F.2d 581, 586 (10th Cir. 1989).
Analysis
Reviews of no-knock entries to execute search warrants are obviously fact-sensitive inquiries. There are many cases in which a defendant's prior history of violence has been a significant factor in justifying a no-knock entry. In this case, there was a prior history of searching defendant's residence without violence or the destruction of evidence. When defendant's residence was searched in 1999, the officers knocked and announced before entering the house. Defendant and Caroline Vigil were awake when the search was conducted. Although they did not answer the door, there is no claim that they attempted to destroy evidence or that they threatened the safety of the officers. In addition, there is no evidence or indication that defendant or his girlfriend had acted violently or threatened violence toward officers or others since 1999. The only evidence referred to in the affidavit to support a no-knock entry for the safety of the officers is the anonymous tip that defendant had automatic weapons in the loft of his garage approximately seven weeks before the search was conducted. Under well-established Tenth Circuit precedent, this is insufficient to justify a no-knock entry.
During the hearing upon the instant motion, there was also reference to an impression that defendant handled a gun just prior to the officers' entry in 1999. This was based upon the idea that a clothes basket is an unusual place to keep a gun. But, it is speculation or a mere hunch that defendant or Vigil handled the gun after learning that the police were entering or seeking to enter their home in 1999. Neither defendant nor Vigil was near the basket when the officers made their entry according to the written reports of the 1999 search.
The threat of destruction of evidence has also been cited as grounds for the no-knock entry. However, this was not a problem during the 1999 entry. In addition, the only objective and particularized information available to the officers was that the narcotics were in the garage in a workbench, some distance from where defendant and Vigil would likely be at 4:45 a.m. There was no allegation of drug trafficking which might provide an additional incentive for or experience in disposing of drug evidence. Nor was there an allegation of any defensive measures against surveillance or measures to detect law enforcement. Once again, the court finds no particularized information to support a no-knock entry on the grounds that evidence would be destroyed if advance notice was given. To permit a no-knock entry under these circumstances would largely do away with a knock and announce requirement in drug cases.
We find the cases cited by the government as analogous to the facts here to be distinguishable. For instance, U.S. v. Berrocal, 2000 WL 1629437 (10th Cir. 10/31/2000) is an unpublished case involving the evening search of the home of a suspected methamphetamine trafficker. While Berrocal may be close to the facts of this case, the time of the search was different, the suspicion of drug trafficking was different, and the knowledge of the officers regarding the location of the drugs was different. U.S. v. Wilson, 899 F.Supp. 521 (D.Kan. 1995) concerned the search of a crack house in which there were persons the officers reasonably suspected as being armed and dangerous. U.S. v. Singer, 943 F.2d 758 (7th Cir. 1991) involved the search of the home of an alleged drug trafficker who was suspected to have possessed firearms and to have made threats.
The court also believes that support for defendant's motion can be found in the result of U.S. v. Banks, 540 U.S. 31, 124 S.Ct. 521 (2003). In Banks, the police had information that the defendant was selling cocaine from his two-bedroom apartment. They arrived at the apartment with a search warrant at 2:00 p.m. They called out "police search warrant," rapped hard on the door, but heard no response. After waiting 15 or 20 seconds, they used a battering ram to open the front door. The defendant was in the shower and testified that he heard nothing until the crash of the door. The Court held that, although "this call is a close one," the police "could fairly suspect that the cocaine would be gone if they were reticent any longer," and therefore the police were justified in entering when and as they did. 124 S.Ct. at 526.
In the case at bar, however, there was no wait or reticence whatsoever, even though the search was conducted at 4:45 a.m., not 2:00 p.m. The police did not knock and wait 15 to 20 seconds. They forced the door open without knocking or announcing first. In spite of the information regarding defendant's possession of an automatic weapon, we do not believe this is a close call. We believe it is clear that the officers had an obligation to knock and announce before executing the search warrant.
The government has asserted that even if adequate grounds for a no-knock entry did not exist in this case, the question is sufficiently close to avoid suppression of the evidence by applying the good faith doctrine under United States v. Leon, 468 U.S. 897 (1984). We disagree. It is the court's impression from the testimony that the no-knock warrant was issued in this case primarily upon the reasonable suspicion that defendant had firearms at the residence. There was also a reasonable suspicion that defendant had marijuana in his garage. But, there was nothing more "particularized" and "objective" to substantiate the kind of reasonable suspicion necessary to support a no-knock entry. Given the holding of the Supreme Court in Richards, and the Tenth Circuit's holdings in Moore and Jenkins, the court believes it was clearly established at the time of the application for the search warrant that the information supplied to the state court judge was insufficient to support a no-knock entry in this case. Cf., U.S. v. Gonzalez, 164 F.Supp.2d 119, 126-27 (D.Mass. 2001) (good faith doctrine applied to deny suppression of evidence from a 1995 search with similar facts, but court states that good faith exception would not be applied to searches on such facts conducted after the Richards decision).
Finally, the government has argued that the court should apply the inevitable discovery doctrine and hold that the suppression of evidence is an improper remedy in this case even if the search was unreasonable because of the failure to knock and announce. The government cites case authority from the Seventh Circuit for this contention. U.S. v. Sutton, 336 F.3d 550 (7th Cir. 2003); U.S. v. Langford, 314 F.3d 892 (7th Cir. 2002) cert. denied, 124 S.Ct. 920 (2003); see also, People v. Stevens, 597 N.W.2d 53 (Mich. 1999) cert. denied, 528 U.S. 1164 (2000). The government also suggests that the independent source doctrine should be applied to the same effect.
The independent source doctrine and the inevitable discovery doctrine are exceptions to the rule that requires the exclusion of evidence obtained as a result of unlawful government conduct. U.S. v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997) cert. denied, 522 U.S. 1140 (1998). Each doctrine requires that the government demonstrate that the evidence would have been found as a result of an investigation independent of the constitutional violation. Id. at 987; see also, U.S. v. Souza, 223 F.3d 1197, 1202-03 1206 (10th Cir. 2000); U.S. v. Griffin, 48 F.3d 1147, 1150 (10th Cir.) cert. denied, 515 U.S. 1168 (1995).
The court does not believe a search pursuant to a search warrant should be viewed as independent from the entry of a residence to execute the search warrant. Without describing their analysis in detail, the court shall follow the majority of courts that have rejected the application of the inevitable discovery or independent source doctrine in this situation. U.S. v. Dice, 200 F.3d 978, 984-85 (6th Cir. 2000); U.S. v. Marts, 986 F.2d 1216, 1219-20 (8th Cir. 1993); U.S. v. Holmes, 183 F.Supp.2d 108, 111 (D.Me. 2002); Gonzalez, 164 F.Supp.2d at 123 fn.2; U.S. v. Shugart, 889 F.Supp. 963, 977 (E.D.Tex. 1995); Mazepink v. State, 987 S.W.2d 648, 657 (Ark.) cert. denied, 528 U.S. 927 (1999);State v. Lee, 821 A.2d 922, 937 (Md. 2003); District of Columbia v. Mancouso, 778 A.2d 270, 275 n. 10 (D.C. 2001); Kellom v. State, 849 So.2d 391, 396 (Fla.App. 2003); People v. Tate, 753 N.E.2d 347, 352 (Ill.App. 2001); State v. Martinez, 579 N.W.2d 144, 148 (Minn.App. 1998); State v. Taylor, 733 N.E.2d 310, 312 (Ohio App. 1999);Commonwealth v. Rudisill, 622 A.2d 397, 400 n. 7 (Pa.Super. 1993); Price v. State, 93 S.W.3d 358, 370-71 (Tex.App. 2002).
Conclusion
The motion to suppress shall be granted.
IT IS SO ORDERED.