Opinion
Case No. 00-CR-0073
July 13, 2000
Mario F. Gonzales for Plaintiff.
John A. Cabranes for Defendant.
DECISION AND ORDER
Before me is a Recommendation by Magistrate Judge Patricia J. Gorence, proposing findings of fact and recommending that Miguel Angelo Espinoza's motion to suppress physical evidence be granted. The government filed timely objections to the Recommendation and Espinoza responded. Having reviewed the Recommendation and objections de novo, I see no reason to depart from the factual and legal determinations suggested by Magistrate Judge Gorence. Therefore, I will briefly respond to the objections before adopting the Recommendation in full.
I. SUMMARY OF APPLICABLE LAW AND MAGISTRATE JUDGE'S DECISION
In Wilson v. Arkansas, 514 U.S. 927, 929 (1995), the Supreme Court held that the common-law "knock and announce" principle forms part of the reasonableness inquiry under the Fourth Amendment. The court rested its decision in part on the important interests served by the principle, which include giving people the opportunity to comply with the law before being subjected to a forced entry into their dwellings and avoiding the destruction of property occasioned by forcible entry. Id. at 930-32. InRichards v. Wisconsin, 520 U.S. 385, 393 n. 5 (1997) (citation omitted), the court identified another important interest served by the principle:
Additionally, when police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry. . . . [M]ost search warrants are executed during the late night and early morning hours. 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.
The knock and announce principle generally requires police officers to knock and announce their presence and wait a reasonable time before breaking into a dwelling unless there are exigent circumstances. United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000); see 18 U.S.C. § 3109. If, after knocking and announcing, the officers are refused admittance they may forcefully enter. The phrase "refused admittance" is not restricted to an affirmative refusal. Jones, 208 F.3d at 609. It includes circumstances from which a refusal may be inferred. A refusal may be inferred from a failure to acknowledge the officer's presence or open the door after a reasonable period of time. Id. at 610.
In Jones, the Seventh Circuit's most recent pronouncement on the issue, the court declined to adopt a bright-line rule and said that the period of time that officers must wait before forcibly entering depends on what is reasonable under the circumstances of the particular case. Id. The court there held that a wait of from five to thirteen seconds after knocking and announcing was reasonable. The court justified its ruling by noting that before entering the officers had specific information that the defendant had a gun, that he was a dangerous felon with a lengthy criminal record and that the quantity of drugs possessed by the defendant was such that he could destroy them in a short time. Id. In the present case the magistrate judge concluded that the a wait of five seconds was unreasonable largely because of the complete absence of all the factors on which the reasonableness determination in Jones rested. Here, the officers had no information that the individual was armed, dangerous or had a prior record, and they knew that the quantity of marijuana in the residence was too large to be quickly disposed.
II. GOVERNMENT OBJECTIONS
The government raises several objections to the magistrate judge's conclusion. First, it argues that "the officers executing the search warrant knew that drugs were present within the residence and testified that common sense indicates that firearms are likely to be present." (Gov't's Obj. at 7.) It contends that "requiring a longer waiting period would put officers executing search warrants at undue risk as it would allow a defendant the opportunity to arm himself or destroy valuable evidence." (Id. InRichards, however, the Supreme Court rejected virtually identical arguments: i.e., that a generalized connection between drugs and safety or an assumption that drugs could easily be destroyed were reasons for eliminating the knock and announce rule in drug cases. The Court said:
[W]hile drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. . . . [t]he police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by no-knock entry.Richards, 520 U.S. at 393 (footnote omitted).
The present case presents precisely the situation hypothesized in Richards. Here, there was no indication that execution of the warrant posed special risks to the officers' safety. Further, at least nine police officers were on the scene to insure that the matter be handled safely. Additionally, the drugs sought were "impossible to destroy quickly" because they consisted of fifty or sixty pounds of marijuana. Thus, as in Richards, the government's objection, based as it is on the notion of a general connection between drugs and arms and on the general assumption that drugs can be destroyed quickly, must be rejected.
Second, the government argues that although the magistrate judge stated that she was following Seventh Circuit precedent and not adopting a bright-line rule, she cited "a series of cases in which five seconds appears to be the rule." (Gov't's Obj. at 7.) The magistrate judge, however, clearly did not adopt a bright-line rule. Rather, she reached her conclusion, as the Seventh Circuit directed, by analyzing the particular circumstances of the case and comparing them to the particular facts of other cases. She noted that unlike Jones the officers here had no information that the flat was occupied by a dangerous felon, that a weapon was present or that destruction of evidence was a possibility.
The magistrate judge further noted that, unlike United States v. Markling, 7 F.3d 1309 (7th Cir. 1993), where a seven second wait was held to be reasonable, the officers here did not have information that the defendant was "extremely paranoid" and would flush his drugs down the toilet. She also mentioned that inMarkling the defendant was in a small motel room where he could hear a knock on the door and respond within a few seconds. By contrast, in the present case the targeted property was not a motel room but the lower flat of a duplex, which contained a number of rooms. Moreover, the warrant was executed at midnight at a time when many people are sleeping. In such circumstances a resident could easily take more than five seconds to get dressed much less answer the door. The magistrate judge thus based her conclusion that a wait of five seconds was unreasonable not on a bright-line rule but on the particular circumstances of the case before her, and the government s objection on this score must be rejected.
Third, the government appears to object to the magistrate judge's proposed finding of fact that five seconds elapsed before the forcible entry, asserting: "The magistrate's finding's [sic] that only five seconds elapsed before entry does not take into consideration the testimony of the witnesses or the fact that two doors were breached." (Gov't's Obj. at 8.) There are two problems with this objection.
First, the parties stipulated that Investigator Bauer waited five seconds and broke down the front door. (Recomm. at 4.) The time line the government attaches to its objections even indicates that only five seconds elapsed before the outer door was breached. (Gov't's Obj. App. 1.) Second, the only time period relevant to the question of whether the officers acted reasonably, i.e., waited long enough before forcibly entering, is the five seconds that elapsed before they broke the outer door. The Seventh Circuit has determined that the knock and announce rule applies per dwelling not per door. United States v. Bragg, 138 F.3d 1194, 1195 (7th Cir. 1998). In Bragg, the court stated:
Section 3109 does not say whether its rule applies per dwelling or per door, but two considerations persuade us that the former reading is correct. The first is the function of the statute, which is to afford the occupant notice so that he may open the door peaceably and prevent needless destruction of property, as well as to avert the potentially violent confrontation that could ensue if the occupant mistakes the police for invading criminals. So the statute requires the officer to give "notice of his authority and purpose". If the officer "is refused admittance" — and failure to answer the door is a form of refusal — then the door may be broken to execute the warrant. Notice tells the occupants who is at the door; the opportunity to open the door in response enables the occupants to avert damage to their dwelling. One notice suffices no matter how may doors the building has.Id. at 1195 (citations omitted). Because under Bragg. the knock and announce rule applies per dwelling rather than per door, the only time period that matters regarding whether the officers waited a reasonable time after knocking and announcing is the period before they broke into the dwelling. It makes no difference that after breaking into the dwelling the officers expended additional time breaking into the lower flat. The government's assertion that the officers waited more than five seconds therefore must be rejected.
Fourth, the government asserts that even if the magistrate judge correctly concluded that the officers violated the knock and announce requirement of the Fourth Amendment, the sanction of suppression is too severe a penalty to impose; (Gov't's Obj. at 10.) According to the government, the evidence "could be essential to the conviction of a criminal, while the violation of the Fourth Amendment . . . might have imposed a cost on the criminal that was trivial in relation to the social cost of allowing a guilty criminal to walk." (Gov't's Obj. at 9.)
The government argues a point left open by the Court in Wilson. In Wilson the government argued that exclusion is not a constitutionally compelled remedy where the unreasonableness of a search stems from the failure of announcement. Analogizing to the "independent source" doctrine applied in Segura v. United States, 468 U.S. 796, 805, 813-16 (1984), and the "inevitable discovery" rule adopted in Nix v. Williams, 467 U.S. 431, 440-48 (1984), the government argued that any evidence seized after an unreasonable unannounced entry is causally disconnected from the constitutional violation and that exclusion goes beyond the goal of precluding any benefit to the government flowing from the constitutional violation. See Wilson, 514 U.S. at 937 n. 4. Because the issue was not properly before the court, however, the Supreme Court declined to address it. Id.
The Supreme Court also declined to address the question in United States v. Ramirez, 523 U.S. 65, 72 n. 3 (1998).
Since Wison, however, a number of circuits have squarely addressed and rejected the government's argument. In United States v. Marts, 986 F.2d 1216, 1219 (1993) (footnotes omitted), the Eighth Circuit held that a violation of the knock and announce rule was a sufficiently serious invasion of a constitutional right to warrant invocation of the exclusionary rule:
The government's second basis for arguing that the exclusionary rule should not be applied is that it results in the unreasonable suppression of highly probative and reliable evidence. The government urges that, even if the officers had waited an additional period of time, the exact same search would have been conducted and the exact same evidence would have been seized. Thus, this "technical violation" should not exact the full remedy provided by the law. Longstanding constitutional principles regarding unlawful search and seizure bar the government's use of the fruits of an unlawful search simply because the officers "would have found it anyway." The fact that the evidence is so probative that the government cannot prosecute its case without it is no more persuasive in excusing unlawful conduct. The consequence of this ruling, that allegedly guilty defendants will not be fully prosecuted, is indeed offensive to our concept of the criminal justice system. However, the remedial objectives of the exclusionary rule are well served here, and the rule was appropriately applied by the district court.
The Sixth Circuit also addressed the issue in a case with facts strikingly similar to those in the present case. In United States v. Dice, 200 F.3d 978, 982 (6th Cir. 2000). that court addressed the government's argument as follows:
The Government essentially seeks a rule — derivative of the "independent source doctrine" — that when police officers have a valid warrant, and make a proper knock and announcement, but fail to wait a reasonable time before forcing their way into a residence, the exclusionary rule should not apply to evidence thereafter seized. We can not accept this position because it defies clear precedent in two critical areas of Fourth Amendment law.
The court concluded that adoption of the government's position would emasculate both the knock and announce rule and the independent source rule. According to the Sixth Circuit, the requirement that officers wait a reasonable period of time before breaking into dwellings is a crucial element of the knock and announce rule and removing the exclusionary bar from violations of the rule would "in one swift move gut the constitution's regulation of how officers execute such warrants." Id. at 986. In the court's view, the essence of the independent source rule is the government's showing that evidence was discovered through sources wholly independent of any constitutional violation. Id. at 984. Thus, the court concluded that in cases like the present one where there is but one entry and one search — both illegal because of the knock and announce violation — the evidence seized is clearly not the fruit of a second search independent of the constitutional violation. As for the inevitable discovery doctrine, the Sixth Circuit indicated that the prosecution "can not make such an argument." Id. at 986.
To prevail under that doctrine, the government must show that the evidence inevitably would have been obtained from lawful sources in the absence of the illegal discovery. This requires the government to proffer clear evidence of an independent, untainted investigation that inevitably would have uncovered the same evidence as that discovered through the illegal search. Here, the government has not done this. In fact, the record evinces that there was only one investigation into Dice's activity, and that investigation culminated in the illegal entry we are now scrutinizing.Id. at 986-87 (internal quotation marks and citations omitted).
Thus the Sixth Circuit, like the Eighth, forcefully rejected the argument the government now presents. Further, while not directly addressing the question, the Tenth Circuit affirmed a trial court's suppression of evidence obtained in violation of the knock and announce rule. See United States v. Moore, 91 F.3d 96, 99 (10th Cir. 1996).
Moreover, the Seventh Circuit has articulated a general principle underlying both the inevitable discovery exception to the exclusionary rule and the related doctrine of harmless error, which principle suggests that the Seventh Circuit would not permit the admission of evidence seized after a knock and announce violation of the type that occurred in this case. While recognizing that the discovery of evidence inside a house would likely be inevitable once the police arrive with a warrant,United States v. Jones, 149 F.3d 715, 717 (7th Cir. 1998), the Seventh Circuit indicates that a defendant is entitled to the remedy of exclusion if he can show that the violation of his constitutional right caused "harm [to] the interest (whether in privacy or in a fair trial) that the rights protect," United States v. Stefonek, 179 F.3d 1030, 1036 (7th Cir. 1999), cert. denied, 120 S.Ct. 1177 (2000). Applying the foregoing principle articulated by Chief Judge Richard A. Posner to the present case leads to the conclusion that the evidence seized is barred by the exclusionary rule. The officers violated defendant's Fourth Amendment right to be free of an improperly announced entry into his residence. As discussed earlier, the interests protected by this right are the interest in being given an opportunity to comply with the law, the interest in not having property unnecessarily destroyed by the government, and the interest in having an opportunity to prepare for an entry by strangers into a residence. Richards, 520 U.S. at 393 n. 5. These interests are all aspects of "the interest . . . in privacy . . . that the rights protect." Stefonek, 179 F.3d at 1036. In the present case the officers harmed this interest, thus, under the principle articulated in Stefonek, the defendant is entitled to the remedy of exclusion.
Finally, the government's position that the inevitable discovery doctrine trumps the exclusionary rule in cases of knock and announce violations must be rejected based on the purpose of the exclusionary rule itself as articulated by the Supreme Court. In Stone v. Powell, 428 U.S. 465, 486 (1976), the Court made clear that "[t]he primary justificatior) for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights." If the exclusionary rule is unavailable as a remedy for knock and announce violations it is hard to see how such violations will be deterred. There would appear to be no other effective deterrent. See Steven P. Grossman, The Doctrine of Inevitable Discovery: A Plea for Reasonable Limitations, 92 Dick. L. Rev. 313, 361 (1988) (stating that when the very purpose of the constitutional right violated would be defeated by application of the doctrine of inevitable discovery, even the near certainty of subsequent discovery should not result in the admissibility of the challenged evidence). Thus, the government's objection to the magistrate judge's decision based on the inevitable discovery doctrine must be rejected.
NOW, THEREFORE, IT IS ORDERED that the proposed findings of fact and recommended conclusion in Magistrate Judge Gorence's Recommendation are ADOPTED and the defendant's motion to suppress is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 13 day of July, 2000.