U.S. v. Becker

• Decision Date: 09 May 1994
• Docket Number: No. 92-30480,92-30480
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duskin Claude BECKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1537

23 F.3d 1537

UNITED STATES of America, Plaintiff-Appellee, v. Duskin Claude BECKER, Defendant-Appellant.

No. 92-30480.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1993.

Decided May 9, 1994.

Jay W. Frank, Moule & Frank, Eugene, OR, for defendant-appellant.

Deborah Dealy-Browning, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, No. CR-92-60056-01-WA.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ.

FERNANDEZ, Circuit Judge:

Duskin Claude Becker appeals his conviction following a court trial for one count of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine in violation of 21 U.S.C. Sec. 846 and two counts of manufacture of a controlled substance (methamphetamine) under 21 U.S.C. Sec. 841(a)(1).

The sole issue we address in this opinion is whether the district court erred when it denied his motion to suppress which was premised on a violation of knock and announce requirements. ¹ We conclude that it did. We reverse and remand for a new trial.

BACKGROUND FACTS

On April 22, 1989, law enforcement agents executed searches at the residences of Jerry Donald Stewart and Ricky Lee Andrus. During those searches, they discovered an active methamphetamine lab, methamphetamine manufacturing equipment and chemicals, methamphetamine and methamphetamine sludge, a methamphetamine recipe, cash and jewels. Apparently in connection with their followup investigation of Stewart, government agents paid a visit to the Becker household on May 9, 1989. They were allowed in and met with him and his wife. The agents felt that he had a belligerent, hostile and argumentative attitude, and noted that he expressed some dismay about the Stewart search and about the camera that had been mounted in front of Stewart's house to monitor activities at that residence. However, he did not threaten them and they neither saw nor smelled evidence of a methamphetamine lab or other illegal activity during their visit.

A search warrant for Becker's residence was issued on June 2, 1989. The search warrant was executed on June 3, 1989 by S.W.A.T. team members of the Springfield Police Department, and members of the IRS and the Inter-Agency Narcotics Enforcement Team. The S.W.A.T. team was chosen to execute the warrant based on the officers' estimate that there was a relatively high level of danger, in light of their belief that an active methamphetamine lab was on the premises which contained volatile chemicals, the fact that in the April 22, 1989 searches of Andrus and Stewart's residences unloaded and loaded firearms had been discovered as well as an active methamphetamine lab, and the time lag between the April search and this one would have alerted Becker to possible police action and allowed him an opportunity to destroy evidence, booby trap the lab, or arm himself against the police. None of these concerns were discussed in the affidavit for the warrant. In fact, the affidavit did not request seizure of laboratory materials or weapons, and the warrant did not mention them. The officers had, by the way, given a proper knock and announce notice when they conducted the earlier searches.

The six members of the S.W.A.T. team entered the yard first to secure the premises. They assembled on the porch, and all yelled "Police--Search Warrant" loudly and repeatedly as they simultaneously kicked in the door. When the police broke in, the residents During the search, officers noticed a newly-poured concrete pad near the shop at the back of Becker's property. Officers then rented a jackhammer and removed portions of the concrete slab. They discovered pieces of aluminum foil underneath which later tested positive for methamphetamine. Based upon what they found, the agents executed a subsequent search of Becker's residence on August 22, 1989. That time they knocked before entering.

--Becker and his young daughter--were still in their beds.

Becker filed a motion to suppress the evidence seized during the June and August searches. The district court granted in part and denied in part the motion to suppress. It granted the motion to the extent Becker sought to suppress the evidence found under the concrete pad in both the first and second searches and denied it in all other respects.

The government filed an interlocutory appeal pursuant to 18 U.S.C. Sec. 3731. Becker also sought review of the partial denial of the motion to suppress. He argued that the knock and announce statute was violated and, therefore, the evidence from both searches should have been suppressed. In United States v. Becker, 929 F.2d 442, 446-47 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 183, 116 L.Ed.2d 145 (1991), we reversed the district court's order suppressing the evidence found under the concrete slab during both searches. We declined to address Becker's knock and announce argument because cross-appeals are not allowed on government interlocutory appeals under section 3731. On remand, Becker renewed his motion to suppress and added the ground that the second warrant was unauthorized and illegal due to the knock and announce violation during the first search. The district court denied the motion. It stated that it would "follow the Ninth Circuit" to the extent the motion mirrored the prior suppression motion, and determined that it was not illegal to obtain the second warrant. This appeal ensued.

JURISDICTION AND STANDARD OF REVIEW

The trial court had jurisdiction over this matter pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291.

In general, we review determinations of motions to suppress de novo. United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). The trial court's factual findings are reviewed for clear error. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). Where no findings of fact were made or requested, this court will uphold a trial court's denial of a motion to suppress if there was a reasonable view to support it. United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988). The mixed fact and law question of exigent circumstances justifying a failure to comply with the statutory knock and announce provisions of 18 U.S.C. Sec. 3109 is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

When the officers obtained a warrant to search Becker's house, they decided to serve it early in the morning. They also decided to take the house by storm. Accompanied by a S.W.A.T. team, they loudly announced themselves and simultaneously kicked the door in and entered. Becker claims that in doing so the police ignored his constitutional rights and centuries of law. He is correct.

As we said in Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990):

Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); United States v. Shaibu, 895 F.2d 1291, 1293 (9th Cir.1990); United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir.1988) (en banc). The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's But the protection offered by the Fourth Amendment and by our law does not exhaust itself once a warrant is obtained. The concern for the privacy, the safety, and the property of our citizens continues and is reflected in knock and announce requirements. It finds expression in the knock and announce statute which allows an officer to "break open any outer or inner door of a house ... to execute a search warrant if, after notice of his authority and purpose," he is refused admittance. 18 U.S.C. Sec. 3109. Nor should the safety and property "emanations from the core of the fourth amendment" be overlooked by too exclusive a focus on the privacy factor. United States v. Lockett, 919 F.2d 585, 592 (9th Cir.1990) (Fernandez, J., concurring).

home is invaded by the authorities. See Shaibu, at 1293; United States v. George, 883 F.2d 1407, 1411, 2522 (9th Cir.1989).

The fear of a smashing in of doors by government agents is based upon much more than a concern that our privacy will be disturbed. It is based upon concern for our safety and the safety of our families. Indeed, the minions of dictators do not kick in doors for the mere purpose of satisfying some voyeuristic desire to peer around and then go about their business. Something much more malevolent and dangerous is afoot when they take those actions. It is that which strikes terror into the hearts of their victims. The fourth amendment protects us from that fear as much as it protects our privacy....

The knock and announce requirement, including its safety purposes, was reported on by Sir Edward Coke. See Semayne's Case, 5 Coke's Rep. 91a (K.B.1603). And, as Justice Story indicated in his commentaries, the fourth amendment was designed to protect "personal security, personal liberty and private property." See J. Story, Commentaries on the Constitution of the United States, Sec. 1902 (2d ed. 1851). These concerns go far beyond mere privacy interests.

Similar concerns have been expressed throughout our history. See, e.g., Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (personal security); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (knock and announce); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921) (personal security), overruled on other grounds, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Boyd v....