U.S. v. Dice
| Decision Date | 09 December 1999 |
| Docket Number | No. 98-3092,98-3092 |
| Citation | 200 F.3d 978 |
| Parties | (6th Cir. 2000) United States of America, Plaintiff-Appellant, v. Robert Dice,Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Southern District of Ohio at Columbus, No. 96-00136--John D. Holschuh, District Judge.
Louis M. Fischer, DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, APPELLATE SECTION, Washington, D.C., Robyn Jones, Office of U.S. Attorney, Columbus, OH, for Plaintiff-Appellant.
Gordon Hobson, Steven R. Keller, Fed. Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Southern District of Ohio, Columbus, Ohio, for Defendant-Appellee.
William A. Hasselbach, RITTGERS & MENGLE, Lebanon, Ohio, for Ohio Association of Criminal Defense Lawyers, Amicus Curiae.
Before: JONES, COLE, and GILMAN, Circuit Judges.
This case arises from a battle in the "war on drugs" that the Government lost because it failed to abide by one of the key rules of engagement. Specifically, the district court found a violation of the Fourth Amendment's knock-and-announce rule and excluded evidence seized in the resulting search. Acknowledging its constitutional infraction, the United States challenges the district court's suppression order on more narrow grounds. For the reasons stated below, we AFFIRM.
The seriousness of the resulting suppression order prompts us to set forth in considerable detail the facts adduced before the district court.
On October 31, 1996, Defendant-Appellee Dice was indicted in the United States District Court for the Southern District of Ohio on one count of manufacturing and possessing with intent to manufacture and distribute more than 1,000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1); and one count of maintaining a place to manufacture a controlled substance, in violation of 21 U.S.C. § 856(a)(1). On November 25, 1996, Dice moved to suppress evidence that was seized pursuant to a search warrant, and also moved to suppress oral statements he made during the execution of the warrant. On February 19, 1997, the district court held an evidentiary hearing on the motions to suppress, and on June 19, the court granted both motions. After the court denied the Government's motion for reconsideration, the Government filed a notice for an interlocutory appeal to this Court. On appeal, we are faced with only one question: whether the acknowledged violation of the knock-and-announce rule during the execution of a valid search warrant should result in the suppression of evidence seized in the search following the violation.
On June 2, 1994, a confidential informant told Pike County Police Chief Deputy John R. Hull ("Hull") that Dice's residence--located at 97 Magaw Road-was using a large amount of electricity. The informant further told Hull that Dice was conducting an indoor marijuana cultivation operation. Hull then subpoenaed the utility records for the residence, ascertaining that Dice's monthly utility bills were up to ten times as high as the average home in the area. Hull next conducted daytime surveillance of the residence, observing covered windows, nine air vents on the roof, and missing and buckling shingles on the roof. He also observed two dogs that appeared to be guarding the house.
On June 8, 1994, Agent Tim Gray of the DEA Task Force of Columbus produced a thermal image videotape of Dice's residence. The tape revealed a comparatively large amount of heat escaping through the roof of the residence. At the suppression hearing, Gray testified that this amount of heat was one factor that might indicate the use of a marijuana "grow light."
Armed with this evidence, Hull applied for a search warrant for the residence on June 8. After conducting a hearing on the warrant application at which he considered the proffered evidence, as well as testimony regarding the use of the thermal imager, the Pike County judge issued the warrant that day. In his motion to suppress, Dice challenged the issuance and execution of the warrant, and the veracity of information provided to the judge and contained in the warrant.
On June 8, the Pike County Sheriff's Office obtained assistance from the emergency response team of the Ross County Sheriff's Office to make the actual entry into Dice's residence. The evidence is conflicting regarding how the officers entered the house. Officer David Large, who was part of the entry team, described the approach and entry at the suppression hearing. As they approached the residence, Large testified, the officers announced that they were deputy sheriffs and that they had a search warrant. Another sergeant then knocked on the door, waited "a few" seconds, and on hearing movement in the house, forced the door open. On cross-examination, Large acknowledged that the entry team had no information indicating that Dice was armed or dangerous, and also had no information that anyone in the home was at risk of harm; he also acknowledged that they had not been refused entry into the home. After knocking down the door, a number of officers entered the residence to execute the search warrant. Inside, they discovered a marijuana cultivation operation, with marijuana plants growing throughout the house. Ultimately, the police seized more than 1,900 marijuana plants, as well as grow lights, other gardening, plumbing and electrical equipment used for indoor cultivation of marijuana, and fertilizer.
Dice testified that he was in the kitchen when the officers arrived outside of his house, and had begun to walk into the living room when they entered. He stated that he heard neither an announcement nor a knock at the door; rather, he simply heard his dogs barking loudly, followed by the officers crashing through the door.
In his motion to suppress, Dice challenged the entry as a clear violation of the knock-and-announce rule under the Fourth Amendment.
On initially observing the inside of the residence, the officers arrested Dice and read him a Miranda warning. Dice responded that he wanted to speak to an attorney, at which point the officers ceased questioning him. Nevertheless, after officers requested that he turn on some exhaust fans to cool down the house (which was hot primarily due to the growing operation), and following a statement by one officer that they were "nice plants," Dice began to talk about the quality of his plants and the methods he used to grow them. Although Hull testified that he warned Dice he was violating his request to remain silent, and that the officers re-read him his Miranda rights, another officer brought a tape recorder into the house and taped some of Dice's incriminating statements.
In the district court, Dice challenged the warrant itself, the execution of the warrant, and the alleged Miranda violation. The court rejected Dice's challenge of the warrant,1 and Dice did not appeal this decision.
Regarding the execution of the warrant, the district court credited the testimony of the officers who stated that they knocked on the door and announced their presence and purpose. Nevertheless, based on the officers' testimony that they only waited a "few" seconds after knocking before violently entering the house, the court found that the officers had not provided a reasonable opportunity for Dice to respond to their knock and announcement. In addition, the court found that the government had not proven any of the exceptions to the knock-and-announce rule2. Focusing primarily on the "destruction of evidence" exception, the court concluded that the extensive evidence within Dice's residence could not have been easily destroyed. Moreover, the mere detection of "movement" inside the house and the presence of barking dogs were not sufficient to provide a basis for a reasonable suspicion that evidence was being destroyed. The court therefore concluded that the search was constitutionally unreasonable. It therefore ordered the suppression of all evidence obtained during the execution of the search warrant, including all the physical evidence seized and Dice's statements.
Finally, the district court held that because an officer initiated the conversation in which Dice described his crimes, Dice had not waived his Miranda rights. Dice's statements were thus obtained in violation of the Fifth Amendment. This issue is not on appeal.
Following the suppression order, the Government filed a motion for reconsideration, arguing that despite the knock-and-announce violation, suppression of all the evidence was not the appropriate remedy due to the independent source rule. Finding the evidence to have been a direct result of the violation, the district court rejected this argument and denied the motion.
This Court reviews de novo the district court's legal conclusion regarding the suppression of evidence for a knock-and-announce violation. See United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996).
On appeal, the Government has conceded that the scant amount of time between its knock and entry rendered the entry unreasonable under the Fourth Amendment. Having done so, it nonetheless repeats its position from below that this isolated error amid an otherwise valid search should not lead to suppression of the evidence seized. 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.
Absent certain exigent circumstances, it is unreasonable under the Fourth Amendment for an officer to enter a dwelling without...
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