Opinion
Crim. No. 00-585-HA
July 13, 2001
Michael W. Mosman, United States Attorney, District of Oregon, Jonathan S. Haub, Assistant United States Attorney, Portland, Oregon, for the Government.
Edward Dunkerly, Ihringer Dunkerly, Vancouver, Washington, for Defendant April Marie Williams.
On the same date that this Opinion and Order was signed, defendant dismissed this counsel. The appointment of new counsel is pending.
OPINION AND ORDER
Pending before this court are motions to suppress filed by defendant April Marie Williams based upon an alleged violation of the "knock and announce" constitutional requirements (doc. # 36) and based upon an alleged illegal sweep by police officers during the execution of a search warrant (doc. # 38). After these motions were filed, the trial in this matter was continued, and all defendants and their counsel were advised to file any other pretrial motions, or any notices of joinder to Williams' motions, by May 18, 2001. See Order of April 10, 2001 (doc. # 44). The other defendants elected to file no other pretrial motions or provide any notice of joinder by that deadline.
Testimony and oral arguments regarding the pending motions were heard in court on June 6, 2001. Leave was granted on that date for defense counsel to supplement the record, or for other defendants to file final pretrial motions, by June 13, 2001. See Order of June 6, 2001 (doc. # 66). On June 14, 2001, April Williams filed a "supplemental" motion to suppress (doc. # 67). For the following reasons, the motions to suppress (docs. # 36, 38, 67) are denied.
BACKGROUND
Defendant April Baxter Williams (a.k.a. April Williams, a.k.a. Michelle Kent; hereinafter "defendant") shared a residence on Cassady Court in Vancouver with co-defendant James Farmer. Farmer was convicted previously in federal court for the manufacture of marijuana and was on probation. He violated his probation, and a probation violation warrant was issued for his arrest.
Members of the Clark-Skamania Drug Task Force obtained a search warrant from a Washington state court judge for the search of the Cassady Court residence for the person of Farmer, and for items of identification to prove or disprove Farmer's identity. On February 17, 2000, Clark County Sheriff's Deputy Detective Mike Johnson, accompanied by several officers, executed the warrant. Upon arriving at the front door of the residence, the officers knocked and announced their purpose.
Defendant's and the government's versions of the subsequent facts differ. Defendant claims that the officers broke the door down simultaneously with, or very shortly after, knocking on the door. However, the government claims that the officers waited for a reasonable length of time, received no response from the occupants, and only then forced entry after repeated blows to the door. The parties disagree upon how much force was required to open the door, but agree that as a result of the force, the door collapsed and folded in half.
The parties also present different accounts of what the officers encountered when they entered the home. Defendant claims that when the officers entered the house, she was coming towards the front door from the living room. The government claims that defendant was in the living room, but was not making any effort to open the door to allow the officers inside.
The officers located Farmer inside the residence and arrested him. The officers then performed a protective sweep of the remainder of the residence. During the sweep, one of the officers saw what he suspected to be approximately one-half pound of marijuana in a bag in the closet of the master bedroom. While in the master bedroom, the officer also saw a triple beam scale and what he believed to be packaging material for marijuana. The officer reported this information to Detectives Mike Johnson and Mary Parsons. Detective Parsons subsequently applied for, and was granted, a warrant for a search of the residence. Under the authority of this later warrant, the aforementioned items were seized.
MOTIONS
Defendant initially asserted two motions: the first sought suppression on grounds that the officers violated the "knock, announce, and wait" constitutional requirements imposed when serving a search warrant; and the second sought suppression on grounds that the officers conducted an illegal sweep of defendant's premises following their entry.
a. Alleged Violation of Knock, Announce, Wait Requirement
Defendant first moves to suppress any and all evidence, and the fruits thereof, seized during the February 17, 2000 search, on grounds that the officers did not comply with the knock, announce, and wait rule under federal and state law. Defendant claims that the officers made forcible entry when they had not been explicitly or implicitly denied entry by the occupants of the house, and that the officers had no reason to believe that evidence was being destroyed, nor that any of the occupants of the home were armed. Under the Fourth Amendment to the United States Constitution, individuals have a right to have the police knock and announce their presence before entering a private residence to execute a valid warrant. Under 18 U.S.C. § 3109, an officer seeking to enter a house to execute a warrant is required to give notice of the officer's purpose and authority, and he or she must be refused entry before forcibly entering the house.
The procedural protections afforded by the knock, announce, and wait requirement are designed to protect against unreasonable searches and seizures under the Fourth Amendment. Richards v Wisconsin, 520 U.S. 385, 394 (1997). Law enforcement officers are excused from the requirement only when exigent circumstances exist to support "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 the crime by, for example, allowing the destruction of evidence." Id. This standard strikes a balance between legitimate law enforcement concerns and the individual privacy interests affected by no-knock entries. Id.
In a case in which the police knocked, announced their presence, and waited approximately a minute before attempting to enter a residence forcefully, the Ninth Circuit recently held that the standards to which police are held in order to protect individuals' privacy rights were met. United States v. Taylor, 239 F.3d 994, 999 (9th Cir. 2001). On the other hand, five seconds is not long enough to satisfy the knock and announce requirement. See United States v. Granville, 222 F.3d 1214, 1218 (9th Cir. 2000). A no-knock entry is justified only when police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile, or destructive to the purposes of the investigation. See United States v. Ramirez, 523 U.S. 65, 71-73 (1998) (the common law rule of announcement is "an element of the reasonableness inquiry under the Fourth Amendment").
This court conducted an evidentiary hearing on the circumstances of the February 17, 2000 search. A neighbor of defendant's testified that he observed the arrival of the police through the window of his nearby house, and that there was no announcement by the officers before they broke down defendant's door. Defendant provided similar testimony. Both the neighbor and defendant claimed that her door collapsed after the first blow against it was struck.
The testimony elicited from officers present during the execution of the warrant differed from this. Each officer testifying recalled that the "knock and announce" was done in accordance with Washington state law. Oregon law enforcement officers testified that this was particularly memorable because Washington law mandates a longer waiting period than is required in Oregon. Each testifying officer also specifically recalled that the door withstood at least 10 or 12 blows before giving way. Several officers testified that they considered relieving the officer applying the ram because he was becoming winded. The testimony also was in harmony regarding what the officers observed in the residence's window, and upon entry.
This court finds that the officers' testimony was consistent, credible and reliable, and that a reasonable, sufficient amount of time elapsed between the officers' announcement of their presence and the time forcible entry was attempted and gained. Accordingly, there was no violation of state or federal "knock and announce" requirements, and this aspect of defendant's motion to suppress is denied.
b. Alleged Illegal Sweep
Defendant also moves to suppress any and all evidence, and the fruits thereof, obtained as a result of the officers' protective sweep in defendant's home, which defendant argues was not justified by the circumstances and excessive. This motion is denied.
Police may perform a protective sweep beyond the immediate area of the arrest if they can articulate facts that would warrant a reasonably prudent officer to believe that the area to be swept harbored an individual posing a danger to those on the scene. Maryland v. Buie, 494 U.S. 325, 334 (1990). The Court in Buie held that
as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Id. at 334.
In United States v. Noushfar, 78 F.3d 1442, 1448 (9th Cir. 1996), the Ninth Circuit quoted Buie and noted that "[a] protective sweep may last `no longer than it takes to complete the arrest and depart the premises.'"
A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. The sweep must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. United States v. Furrow, 229 F.3d 805, 811 (9th Cir. 2000), citing Buie, 494 U.S. at 327. In Furrow, the Ninth Circuit recognized that a search that occurred after arrests were made, and after officers telephoned their superiors, without any evidence that the officers had any concern for their safety or the safety of others, was not a "protective sweep." Furrow, 229 F.3d at 811, citing Buie, 494 U.S. at 334 (protective sweep defined by the Supreme Court by the precautionary nature of the search, the seriousness of the crime involved, and the need for law enforcement to protect themselves by securing the scene and preventing surprise attacks by co-conspirators).
Officers detaining a person who was not under arrest, and without any facts that demonstrated that a reasonably prudent officer would have believed that the scene harbored an individual posing a danger to those present, are not entitled to conduct a "protective sweep." United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000), quoting Buie, 494 U.S. at 334.
The officers' testimony regarding the sweep conducted in defendant's residence is also deemed credible. The officers' belief that the scene posed a potential danger to themselves or others was reasonable, in light of the circumstances present during the execution: the officers were executing a warrant for the apprehension of someone believed to be in the residence, occupants were visible inside the residence but refused to respond to the officers' entreaties at the door, and the scene itself, with multiple rooms, hallways and doorways, presented a danger of surprise attack. There is no dispute that the related sweep into the adjacent rooms and into the bedroom closet was narrowly confined to a cursory visual inspection of those places in which a person might be hiding. The subsequent discovery of an open grocery bag of contraband during this sweep was not improper.
c. Supplemental Motion
Defendant also filed a third, "supplemental" motion following the evidentiary hearing. Much of the supplemental filing falls outside of the scope of what the court and parties discussed while setting June 13, 2001 as the final extension for pretrial submissions. Moreover, the filings were not presented before the expiration of that deadline. Nevertheless, the court has reviewed the supplemental motion and concludes that the additional filing adds little or nothing to the evidence presented in support of suppression. The supplemental motion is denied, as it pertains to either the already-pending motions to suppress, and as it might pertain to new, improperly raised and untimely arguments on behalf of pretrial matters regarding defendant.
CONCLUSION
Under the facts and circumstances presented, this court finds and concludes the police officers acted in good faith, properly obtained and executed multiple warrants, announced their presence and entered defendant's premises reasonably and lawfully, conducted a reasonable and lawful sweep, and in all manners acted properly regarding the search of defendant's premises on February 17, 2000. Accordingly, defendant's motions to suppress (docs. # 36, 38, 67) are DENIED. Defendant's supplemental motion (# 67) is also denied on alternative grounds of untimeliness and because its content falls outside of the subject matter for which leave for the filing was granted.
IT IS SO ORDERED.