United States v. Tavares, 99-3654

• Citation: 223 F.3d 911
• Decision Date: 15 February 2000
• Docket Number: No. 99-3654,99-3654
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. SANTOS GARCIA TAVARES, DEFENDANT - APPELLANT. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 911

223 F.3d 911 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. SANTOS GARCIA TAVARES, DEFENDANT - APPELLANT.

No. 99-3654

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 15, 2000

Filed: August 31, 2000

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before Beam and John R. Gibson, Circuit Judges, and Pratt, ¹ District Judge.

John R. Gibson, Circuit Judge.

Santos Garcia Tavares conditionally pled guilty to possessing a firearm in violation of 18 U.S.C. 922(g) (1994 & Supp. IV 1998), reserving the right to appeal the district court's denial of his motion to suppress evidence obtained in connection with a search of his house by state and federal authorities on March 6, 1998. Because the searching officers violated 18 U.S.C. 3109 (1994), we reverse and instruct the district court to vacate Tavares's guilty plea and grant his motion to suppress.

On the morning of March 6, 1998, Sergeant Michael Drews of the St. Paul Police Department contacted the Drug Enforcement Agency and spoke with Agent Glenn Haas. Drews told Haas that Sergeant Greg Lind, also with the S.P.P.D., was in the process of requesting that a state judge sign a search warrant authorizing a "no-knock" entry for a residence at 492 Ada Street, St. Paul, Minnesota. Drews explained that an individual had been seen at the residence whose associations could be traced to individuals connected to a DEA investigation. In response, Haas contacted Ed Bauer, his group supervisor, and Tim McCormick, the resident DEA agent in charge of the local office. The three went to the S.P.P.D. to determine whether a search of 492 Ada Street would interfere with the DEA investigation. When Lind arrived with the signed warrant, Haas read it. Based on information Lind provided, Haas determined the search would not interfere with the DEA investigation, and his supervisors agreed. With the DEA's approval, Lind decided to go forward with the search. Haas testified that the DEA agents volunteered their assistance because there was a potential of finding a large amount of drugs in the house, and if that occurred, the case might be prosecuted in federal court. Lind needed the help, so he accepted the offer. Lind then briefed the officers and agents who would be executing the search as to the house's location and the plan for the initial entry.

At 1:30 p.m that same day, the officers and agents executed the search warrant. Four federal agents participated. Haas and Agent Dan Faflack, a Customs Agent on the DEA Task Force, were part of the entry team. Bauer and McCormick were posted outside. Lind, the lead person on the entry team, used a ram to force his way into the house. He did not knock and announce his presence before entering. Tavares, who was present during the search, was handcuffed by Lind and placed on the living room couch. In an upstairs bedroom closet, Lind found a .45 caliber semiautomatic handgun and a fully-loaded .45 caliber clip. However, no drugs were discovered.

I.

When a district court denies a motion to suppress evidence, we will uphold the court's findings of fact unless clearly erroneous. See United States v. McMurray, 34 F.3d 1405, 1409 (8th Cir. 1994). However, we review the court's application of law to those facts de novo. Id. "We affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made." United States v. Murphy, 69 F.3d 237, 240 (8th Cir. 1995) (internal quotations omitted). Because the district court erred in interpreting the law and in applying it to the facts of this case, we reverse.

II.

Tavares argues that the district court erred in concluding that 18 U.S.C. 3109 did not apply to the officers' and agents' conduct in executing the search warrant. The statute provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.

18 U.S.C. 3109.

A.

Section 3109 applies "[w]hen federal officers are a significant part of a search conducted pursuant to a state warrant . . . ." United States v. Murphy, 69 F.3d 237, 242 (8th Cir. 1995); see United States v. Moore, 956 F.2d 843, 847 n.3 (8th Cir. 1992). Accord United States v. Brown, 52 F.3d 415, 418, 420 (2d Cir. 1995) (search executed by state and federal officers pursuant to a state warrant made the search subject to federal rules). In Moore, we stated that "[f]ederal agents may not circumvent more restrictive federal requirements by arranging for state officers to search under state law," 956 F.2d at 847 n.3.²

In the case before us, the facts related to the issue of federal involvement are not in dispute. The search warrant was obtained by a state officer, Lind, and issued by a state judge. Haas testified that he was contacted around the time the warrant was being obtained, and that he in turn contacted Bauer and McCormick. Soon thereafter, and before it was executed Haas read the warrant. Though they were not involved in the planning, directing, or organization of the search, agents Haas, Bauer, McCormick, and Faflack constituted four of the approximately ten law enforcement officers who participated in the search. Six or seven of those officers, including Haas and Faflack, were members of the entry team. Haas's supervisors, Bauer and McCormick, were posted outside the house. Haas testified that part of the execution of a warrant involves officers standing around the perimeter of the search scene, so Bauer and McCormick did, in fact, participate in the execution of the warrant at Tavares's residence. According to Haas's testimony, he was interested in participating in the execution of the warrant because of the possibility of a federal prosecution if a large amount of drugs was recovered. Haas discussed this possibility with the St. Paul police prior to the search. Lind, the only other witness to testify, confirmed that the federal agents participated in executing the warrant because of the possibility of finding a large amount of drugs.

The district court focused primarily on the lack of federal involvement in obtaining the search warrant, noting that "the preparation of the affidavit in support of the search warrant was well along in its formative stages" when there was contact between the St. Paul officers and the federal authorities. The court found it significant that the affidavit was prepared before any federal involvement in the case. The court further found that the federal involvement was only "incidental to the state court search warrant," and that there was no intent to evade the federal requirements of 18 U.S.C. 3109. Therefore, the court determined that section 3109 did not apply. The court's concentration primarily on the lack of federal involvement in obtaining the search warrant, giving substantially lesser weight to federal involvement in the execution of the warrant, does not faithfully apply our precedent.

In determining whether there is significant federal involvement, our cases focus not only on the efforts to obtain a warrant, but also on the execution of the warrant. In United States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982), we observed that "federal involvement in a state search may serve to render the search subject to federal procedures." However, since no federal officers were involved in the criminal investigation, or in obtaining or executing the warrant, federal rules did not apply to the search. Id. at 662-63. ³ See also Moore, 956 F.2d at 847 (section 3109 not applicable where state officers acted totally without federal involvement in seizing evidence); United States v. Murphy, 69 F.3d 237, 242 (8th Cir. 1995) (no "significant federal involvement" where no federal officer participated in initial entry and search of residence, and where federal officers not contacted until after state officers found what they believed to be explosives). In United States v. Schroeder, 129 F.3d 439, 443 (8th Cir. 1997), ⁴ we held that even the presence of federal officers at the search would not have constituted significant federal involvement, at least where state officers obtained and executed a warrant issued by a state judge as part of an investigation based on state law. Cf. Byars v. United States, 273 U.S. 28, 33 (1927) (before the exclusionary rule was held applicable to the states, federal participation in execution of state warrant rendered the search "in substance and effect . . . a joint operation" of local and federal officers to which federal exclusionary rules apply); Lustig v. United States, 338 U.S. 74, 79 (1949) ("The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress.").

While there is no question the warrant was obtained by state officials, there was contact between the St. Paul Police Department and the federal agents before the warrant was obtained. There was discussion of the effect of the search upon a DEA investigation and the possibility that the search might uncover multiple pounds of methamphetamine. Both Lind and Haas contemplated federal prosecution if that quantity of drugs were recovered. The federal officers thus played more than a passive role in preparing for the search.

Regarding the execution of the warrant, four of the approximately ten officers involved were federal. Of the entry team of six or seven, two were federal. There is no...