Opinion
No. 03-40086-01-SAC
October 14, 2003
MEMORANDUM AND ORDER
In this case, defendant is charged with one count of possession of crack cocaine with intent to distribute, and one count of possession of a firearm during a drug trafficking crime. The case is before the court on defendant's motion to suppress (Dk. 16). The government has responded (Dk. 21), opposing the motion. Having heard the evidence and reviewed the briefs, the court is ready to rule.
Motion to Suppress
Defendant moves the court to suppress all items seized as a result of a search of his residence on March 3, 2003, because the officers failed to knock and announce their presence prior to execution of the search warrant. When the "knock and announce" rule is violated, all evidence that is seized in the ensuing search as derivative evidence is suppressed. United States v. Gallegos, 314 F.3d 456, 459 (10th Cir. 2002).
The government admits that the officers did not knock and announce prior to entering the residence to arrest defendant, but contends that the no-knock entry was justified because the officer in charge reasonably suspected that defendant would destroy evidence otherwise.
Facts
On February 28, 2003, Officer William Chapman of the Topeka Police Department Narcotics Unit received a search warrant for defendant's residence at 1301 S.W. Harrison, Apartment #A 11, in Topeka, Kansas. The warrant, which was issued based upon the affidavit which Officer Chapman prepared, sought cocaine and items for the sale and/or use of cocaine. See Government's Exh. 1.
Officer Culpepper, who was the case officer during execution of the warrant, decided to enter defendant's residence without knocking or announcing the officers' presence, despite the fact that the warrant was not a no-knock warrant. Thus at approximately 9:00 p.m. on March 3, 2003, the officers executed the warrant by using a battering ram which forced open defendant's front door, and without having announced their presence before their entry. Defendant and two other persons were in the residence at the time. During the search, officers found controlled substances.
General law
"Evidence seized by state officers will be suppressed in a federal prosecution if the search violated the Fourth Amendment." United States v. Moland, 996 F.2d 259, 260 (10th Cir. 1993) (citations omitted), cert. denied, 510 U.S. 1057 (1994). The knock-and-announce principles found in common law, namely that officers generally announce their presence and authority before entering a home, are part of the reasonableness inquiry under the Fourth Amendment. See Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995). This is neither an inflexible or rigid rule of announcement, rather it may yield to "countervailing law enforcement interests." Id.
Nevertheless, a showing that the officers' conduct of the search was justified by an exigent circumstance may demonstrate reasonableness for Fourth Amendment purposes. As both the Supreme Court and the Tenth Circuit have recognized, "[o]fficers may . . . be excused from the usual 'knock and announce' rule if exigent circumstances attended the search." United States v. Moore, 91 F.3d 96, 98(10th Cir. 1996); see also Wilson, 514 U.S. at 936. Exigent circumstances include "where there is a threat of physical violence or where evidence would be at risk of destruction in the event of an advertised entry." United States v. Watson, 61 Fed. Appx. 514, 519 (10th Cir. 2003). See Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (exigent circumstances include those which would impede the officers' investigation).
In Richards, the United States Supreme Court considered and rejected the proposition that drug cases per se provide a considerable risk of danger to officers or of destruction of evidence, constituting exigent circumstances. Instead of permitting some hypothetical risk to be sufficient, the Court requires a "determination in each case whether the facts and circumstances of the particular entry justified dispensing with the knock-and announce requirement." 520 U.S. at 394.
Under the controlling rule, "an articulated concern that the target of a search might be alerted in advance to the presence of officers so as to threaten destruction of evidence is an exigent circumstance justifying no-knock procedure." Watson, 61 Fed. Appx. at 520, citing United States v. Dickerson, 195 F.3d 1183, 1186-87 (10th Cir. 1999). Similarly, a defendant's flight as officers approach raises concerns regarding evidence destruction and officer safety, justifying an unannounced forced entry. United States v. Sanger, 44 Fed. Appx. 937, 941 (10th Cir. 2002).
Conversely, generalized concerns are insufficient. For example, in the case of United States v. Flower, 2001 WL 1013317, *3 (D. Kan. 2001), "a policy of never knocking and announcing in methamphetamine lab searches was followed. The policy exist[ed] because there is "always a chance" . . . that officers could be endangered by the hasty disposal of hazardous chemicals. "The court rejected that justification as too generalized to "support a reasonable suspicion that, otherwise, officers would be in peril or evidence would be destroyed." Id., at *3.
The proper focus is on what the officer reasonably believed at the time he decided to dispense with the "knock and announce" requirement. Dickerson, 195 F.3d at 1187. The court's inquiry is thus based upon a reasonable suspicion standard, rather than a probable cause standard. See United States v. Gay, 240 F.3d 1222, 1228 (2001).
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 the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.
Richards, 520 U.S. at 394 (finding that officers had a reasonable suspicion that defendant might destroy evidence if given further opportunity to do so, based upon his apparent recognition of the officers combined with the easily disposable nature of the drugs.)
Present Case
In the present case, the evidence shows specific reasons supporting the officer's reasonable belief that defendant would have destroyed the cocaine at his residence had the officers announced their entry.
First, Officer Chapman knew defendant had previously attempted to dispose of controlled substances when confronted by police officers. His affidavit in support of the search warrant includes two cases in which this occurred during the two years immediately prior to the search. In the first case, officers stopped a car in which defendant was a passenger, smelled marijuana coming from the car, and eventually had defendant step out of the car. The affidavit states:
While talking with Culpepper, officers noticed his speech was slurred and suspected he was concealing something in his mouth. When an officer checked his mouth, the officer observed a plastic bag full of cocaine that the officer estimated to be an eighth of an ounce. Culpepper fought with officers as he attempted to swallow the bag. Eventually Culpepper was able to chew up and swallow the suspected cocaine. Officers were able to recover small pieces of chewed up cocaine that fell from Culpepper's mouth during the fight.
Dk.21, p. 9-10, re: Case # 10406-00.
In the second case, the affidavit completed by Officer Culpepper states that defendant was arrested for felony obstruction based upon the following circumstances:
. . . he was observed placing suspected crack cocaine in his mouth when he observed police approaching on foot. Culpepper was observed making two very distinct swallowing motions and refused to open his mouth. Officers were able to partially open his mouth but could not see anything in there at that time. Officers recovered $400 from one of Culpepper's shoes.
Dk. 21, p. 10, re: Case # 34877-00.
The affidavit includes another case in which a person seated at a table with defendant in his residence grabbed and swallowed the plastic bag as police entered his residence (5761-00), as well as cases in which defendant attempted to flee upon seeing the police, see e.g., cases # J 16753-95, 12804-99. Officer Culpepper testified that defendant's history of flight upon seeing officers was significant because if the officers' presence had been announced, defendant would have had the opportunity to flee with the drugs.
The court notes, however, that the search warrant affidavit also recites earlier cases in which defendant made no apparent attempt to destroy evidence during prior executions of search warrants at his residence. See e.g., cases # 3825-99, 5761-00, J 16753-95.
The evidence additionally shows that Officer Chapman knew that the defendant was in the business of selling small amounts of drugs in easily disposable quantities from his residence. Officer Chapman testified that his confidential informant had bought "pieces" from defendant at his residence on more than one occasion, the most recent having been less than 48 hours before issuance of the search warrant.
According to the officer's testimony, "pieces" are pea-sized amounts of cocaine, approximately 2/10th of a gram, packaged in plastic, tied in a knot, and sold for individual use.
Additionally, Officer Chapman's training and experience, although not alone sufficient to warrant a no-knock entry, is material in determining what he reasonably suspected. Officer Chapman testified that he had been involved in drug investigations since 1995, and that he participated in approximately 200 executions of search warrants a year. He stated that in his experience, the general reaction of those targeted in drug investigations, when they realize officers are approaching, is to flee or attempt to destroy drugs by flushing the substance down the toilet, eating or hiding it, or throwing it out a window.
The court is aware that no-knock entries are commonly justified by events which transpire at or near the scene of the entry. See e.g., Dickerson, 195 F.3d 1183; United States v. Sanger, 44 Fed. Appx. 937. Here, nothing at the scene indicated that defendant or anyone else in his residence was aware that the officers were approaching. Rather, all the facts on which Officer Culpepper relies to justify his no-knock entry were known to him before he obtained the search warrant. This raises the question why Officer Culpepper did not seek a no-knock warrant.
Officer Culpepper answered this query by stating that to his knowledge, there is no such thing as a no-knock warrant under Kansas law, thus the decision to do a no-knock entry is made on a case-by-case basis by the officer in charge. His opinion is supported by law. See Estate of Fuentes ex rel. Fuentes v. Thomas, 107 F. Supp.2d 1288, 1298 (D. Kan. 2000) (noting the absence of any authorization within the law of Kansas which would allow a "no-knock" warrant, citing Kan. Stat. Ann. §§ 22-2501 et seq.) But even if the officer's opinion had been in error, his good faith belief would have been sufficient to show the court that his failure to request a no-knock warrant was not motivated by any intent to subvert the judicial process designed to protect citizens in their homes . Further, even in jurisdictions in which no-knock warrants are authorized and officers seek but do not receive a no-knock warrant, an unannounced entry may be upheld. See Richards, 520 U.S. at 396, n. 7 ("a magistrate's decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.")
On balance, the court finds that Officer Chapman had the requisite reasonable suspicion that knocking and announcing the officers' presence would inhibit the effective investigation of the crime by allowing defendant to destroy evidence. Given his training and experience, Officer Chapman's knowledge of defendant's history of attempting to destroy drugs and/or flee, coupled with his knowledge of defendant's practice of selling easily disposable quantities of drugs from his residence, led him to reasonably suspect that defendant would attempt to destroy drugs if the officers announced their entry. Accordingly, defendant's motion to suppress shall be denied.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 16) is denied.