Opinion
EV 99-13-CR-01 Y/H.
November 15, 1999.
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
This cause comes before the court on Defendant Juliush Hoseau Cabell's Motion to Suppress, wherein he moves to suppress evidence from his November 29, 1999, trial. The court, having considered the motion and supporting memorandum of law, the Government's response, the parties' oral argument, the applicable law, and for the reasons set forth below, now finds that the motion should be granted.
I. Facts
A. Background
Juliush Hoseau Cabell is a young African American male. Prior to the events of March 12, 1999, Defendant resided with his wife, their two young children, and a young man named Nathan Madison at 105 East Riverside Drive, Evansville, Indiana. (Transcript of Detention Hearing, March 15, 1999, ("Transcript"), at 3, 6). Defendant Cabell had no significant criminal history. His only conviction was for resisting law enforcement, a class A misdemeanor, in 1993. (Transcript at 14, 33).
From August 1, 1997 until March 12, 1999, Defendant had been under observation from the Government for his possible involvement in the drug trade. (Affidavit of Daniel T. Rousseau ("Rousseau Aff."), ¶ 3; Transcript at 16). Based upon these activities, on January 28, 1998, a grand jury indictment was returned and an arrest warrant obtained for the crime of conspiracy to possess with intent to distribute methamphetamine. (See Government Ex. A).
Rather than arrest the Defendant, the Government continued to observe the Defendant's activities and surveill his residence. (Transcript at 17). These observations revealed that Defendant (1) associated with known felons (one of whom was his brother, Troy Meriweather); (2) engaged in alleged drug transactions with a confidential informant (See Rousseau Aff.); (3) allegedly threatened a confidential source (Rousseau Aff., ¶ 8); and (4) allegedly handled a firearm in his driveway (Transcript at 19). On March 11, 1999, the Government obtained a search warrant for the Defendant's residence. (See Government Ex. B).
A picture was introduced at the hearing on the motion to suppress which depicts a young African American male handling a firearm in Defendant's driveway. (See Defendant's Ex. 4). The court is unsure if Rousseau's observation and this picture derive from the same set of circumstances. At any rate, at the hearing, Defendant's wife identified the man in the picture as a family friend. She also testified that the firearm in his arms was, in actuality, a "BB" gun.
Based upon the aforementioned Government surveillance of Defendant and Defendant's residence, Agent Rousseau determined this to be a "high risk" entry. Consequently, Rousseau met with members of the Evansville Special Weapons and Tactics Team Unit ("SWAT Team") and asked for their assistance in executing the warrants.
B. Execution of the Warrants
On March 12, 1999, at approximately 6:30 a.m., Agent Rousseau and eleven members of the SWAT Team attempted to execute both warrants. Clad in black with black helmets, a flame-resistant hood, a bullet-proof vest, and clear goggles, the SWAT Team approached the front door of the Defendant's residence in "stack" formation. The front door consisted of an outer steel door and an inner wooden door. Once the SWAT Team reached the Defendant's front door, an officer screamed "Search Warrant! Search Warrant!" Immediately thereafter, he again screamed "Search Warrant! Search Warrant!" Two seconds later, the SWAT Team began to pry open Defendant's outer front door with a hooligan device. (Transcript at 7; see also Videotape, Joint Ex. A). The door popped open immediately. Seconds later, two officers used a two-man battering ram to open the inner door. (See Videotape, Joint Ex. A). Seven seconds passed between the time the officers screamed "Search Warrant! Search Warrant!" and the time the inner door was forced open. (See Videotape, Joint Ex. A). At this point, a shot was fired from inside the Defendant's residence. The SWAT Team immediately returned fire. Once the shooting ceased, the SWAT Team ordered Defendant out of the house. (Transcript at 12). Approximately 30 seconds to a minute later, Defendant surrendered to the SWAT Team. (Transcript at 12).
It is unknown if other federal agents accompanied Agent Rousseau on March 12, 1999.
C. The State Warrant
The Government and SWAT Team then secured the residence, now a crime scene. (Rousseau Dep. at 14). Hours later, Officer Cook from the Evansville Police Department ("EPD") obtained a search warrant of Defendant's residence for evidence of the crime of attempted murder. (See Government Ex. C). Based upon the evidence seized that day from the state search warrant issued to the EPD, a two-count indictment was returned against the Defendant for using a deadly or dangerous weapon to forcibly resist or interfere with a person assisting a law enforcement officer while such officer was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111(b).
II. Law
A. Knock and Announce Rule
Defendant moves in limine to suppress the evidence seized on March 12, 1999 as a result of the state search warrant for the SWAT Team's failure to comply with the federal "knock and announce" rule, 18 U.S.C. § 3109. Section 3109 embodies the constitutional requirements of the Fourth Amendment's prohibition against unreasonable searches and seizures. United States v. Singer, 943 F.2d 758, 761 (7th Cir. 1991).
Indiana law similarly includes a general requirement that officers knock and announce themselves before entering a dwelling to execute a warrant. See Davenport v. State, 464 N.E.2d 1302, 1305 (Ind. 1984), cert. denied, 469 U.S. 1043, 105 S.Ct. 529 (1984); Crabtree v. State, 479 N.E.2d 70, 73-74 (Ind.Ct.App. 1985); Ind. Code Ann. § 35-33-2-3(b) (West 1986).
By its terms, § 3109 provides that an officer " may break open . . . a house . . . to execute a search warrant if, after notice of his authority and purpose, he is denied admittance . . ." The Seventh Circuit has interpreted this statutory language to mean that an officer may enter a person's residence without his consent only if, after notice of his authority and purpose, he is denied admittance. United States v. Markling, 7 F.3d 1309, 1318 (7th Cir. 1993) (citing United States v. Leichtnam, 948 F.2d 370, 373 (7th Cir. 1991). An officer may dispense with this requirement if exigent circumstances exist to justify his entry. Leichtnam, 948 F.2d at 373.
Defendant argues that the SWAT Team did not wait a legally sufficient time before they entered into Defendant's residence. Because the Government does not argue that exigent circumstances existed to otherwise justify their entry, the only issue for this court to address is whether or not the officers were "refused admittance."
Two Seventh Circuit cases provide guidance on this issue. In United States v. Leichtnam, Wisconsin police officers arrived at defendant's home, carrying a federal search warrant, at 6:00 a.m. Id. at 372. Once at his home, the officers attempted to open defendant's front porch door. Finding it locked, they knocked and announced their presence. They heard no sounds and saw no lights within the house for approximately 15 seconds. They then forced the screen door in. Once inside, they walked across the porch to defendant's front door and knocked and announced their presence. After approximately 20 to 30 seconds, and still noticing no signs of life from within defendant's home, the officers used a two-man battering ram and forced their entry into the defendant's home. The defendant filed a motion to suppress, arguing the police did not wait a legally sufficient period of time before entering his home. The district court denied defendant's motion to suppress. The defendant appealed. The Seventh Circuit held that based upon the facts of the case, the officers acted reasonably in concluding they had been denied admittance and affirmed the judgment of the court. Id. at 374.
In United States v. Markling, police officers conducted serveillance on defendant for his possible involvement in drug trafficking. A confidential informant told the officers that the defendant had been doing business out of a motel room. Markling, 7 F.3d at 1311. Once the officers obtained enough information to obtain a search warrant, they attempted to execute it at his motel room. Id. at 1312. Immediately prior to its execution, the officers stopped two females who had just purchased cocaine from the defendant. One of them told the officers that defendant was very paranoid and, if confronted by the cops, likely to flush all evidence of drugs down the toilet. The police then went to his room and knocked on the door. Hearing nothing for seven seconds, the police used a battering ram to enter his hotel room. The defendant filed a motion to suppress the evidence found in his motel room, arguing the police did not wait long enough before breaking down the door. The district court denied his motion, and he appealed. The Seventh Circuit upheld the decision of the district court, concluding that seven seconds between the time they announced their presence and the time they started to enter his motel room was sufficient to comply with § 3109. Id. at 1318-1319.
Based upon these cases, the court finds that seven seconds — from the time the officers knock and announce their presence to the time they start to break down the door — is a legally sufficient amount of time for the officers to reasonably conclude that they have been constructively denied entry under § 3109. In this case, the SWAT Team screamed "Search Warrant! Search Warrant!" and waited approximately two seconds before they began to pry open Defendant's outer front door. The time differential between seven seconds and two seconds is, in this court's view, significant — so significant, in fact, that the court finds a two-second wait is tantamount to no wait at all. Case law from other jurisdictions confirms this court's conclusion. See the Fifth Circuit's survey of cases in United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998) ("[g]enerally, a delay of five-seconds or less after knocking and announcing has been held a violation of 18 U.S.C. § 3109" (case citations omitted) while "more than 5 seconds "is normally sufficient."). Therefore, the court finds the SWAT Team violated the knock and announce statute, 18 U.S.C. § 3109, on March 15, 1999. To find otherwise would completely eviscerate the knock and announce statute.
B. Fruit of the Poisonous Tree
Evidence seized in violation of 18 U.S.C. § 3109 is subject to suppression. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755 (1968); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190 (1958); United States v. Marts, 986 F.2d 1216 (8th Cir. 1993). Thus, the next issue for the court to address is whether the evidence seized pursuant to the state search warrant is "tainted" or is "fruit" of the prior police illegality — in this case, the SWAT Team's violation of 18 U.S.C. § 3109.
The test for determining whether the evidence is sufficiently tainted as to be excluded is "whether the challenged evidence was `come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Segura v. United States, 468 U.S. 796, 804-805, 104 S.Ct. 3380, 3385 (1984) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct., 407, 417 (1963)). In this case, the allegations which form the basis of the state search warrant, dated March 12, 1999 (see Defendant's Ex. C), arose from the SWAT Team's illegal no-knock entry into Defendant's residence in the early morning hours of March 12, 1999. Consequently, the evidence seized pursuant to the state search warrant was "come at by the exploitation of the initial illegality."
The Government argues that the attenuation doctrine — an exception to the fruit of the poisonous tree doctrine — exists to excuse the SWAT Team's illegal entry into Defendant's residence. Thus, the Government argues, the evidence should be not be suppressed because the connection between the SWAT Team's illegal entry and subsequent seizure of evidence is "so attenuated as to dissipate the taint." Id. at 805 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268 (1939)). The only case the Government cites for this proposition is an Eleventh Circuit case entitled United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1982).
In Bailey, the DEA attempted to interdict the defendant at the Atlanta Airport. After the agents identified themselves and asked for his consent to search his person, he fled across the airport. As the DEA agents attempted to arrest the defendant, a struggle ensued between he and one of the agents. The agents eventually subdued Bailey, arrested him for resisting arrest, searched him incident to arrest, and discovered drugs and money. Id. at 1011-12.
Bailey moved to suppress the search as the fruit of the unlawful arrest. In response, the Government argued that the defendant's conduct after the initial interdiction constituted an intervening illegal act which so attenuated the causal connection that the taint of the unlawful police action had become dissipated. Id. at 1015.
The Eleventh Circuit upheld the district court's ruling. The court noted the close causal connection between the initial illegal stop of the defendant, his flight from the agents, and his subsequent search of his person. Notwithstanding that fact, the court held the fruit of the poisonous tree doctrine did not apply because of the defendant's intervening illegal act. Id. at 1016-17. The court held that "notwithstanding a strong causal connection in fact between the lawless police conduct and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime." Id.
The evidence submitted at the motion to suppress hearing reveals that the SWAT Team failed to adequately identify themselves prior to their entry; they only screamed "Search Warrant! Search Warrant!" twice. Thus, there is no evidence that Defendant knew the persons shouting outside of his residence were in fact law enforcement officers executing a lawful search warrant. Moreover, there is no evidence that Defendant heard the SWAT Team shouts in light of the rapid succession of events that took place prior to the melee. Finally, there is no evidence that Defendant shot in the direction of the officers. In light of this evidence, the Government has not met its burden of showing that Defendant knowingly used a deadly or dangerous weapon to forcibly assault, resist, oppose, impede, and interfere with a law enforcement officer while said officer was engaged in the execution of his official duties, in violation of 18 U.S.C. § 111(b). Further, the Government has not submitted evidence that Defendant violated state law by discharging his gun at his residence (see I.C. 35-41-3-2(b)). For these reasons, the court finds the Government has not met its burden of proving that Defendant committed a new and distinct crime sufficient to dissipate the taint of the SWAT Team's initial illegal entry into his residence. See United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999) (Goverment bears the ultimate burden of persuasion to show that seized evidence is untainted). There being no intervening illegal act to dissipate the taint of the SWAT Team's illegal entry, the court finds the Defendant's motion to suppress should be GRANTED.
That section states: "A person is justified in using reasonable force, including deadly force, against another if he reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on his dwelling or curtilege."
III. Conclusion
For the reasons set forth in the court's opinion, the court grants the Defendant's Motion to Suppress.
IT IS SO ORDERED this 15th day of November, 1999.