23 F.3d 1537 (9th Cir. 1994), 92-30480, United States v. Becker

Docket Nº:92-30480.
Citation:23 F.3d 1537
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Duskin Claude BECKER, Defendant-Appellant.
Case Date:May 09, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1537

23 F.3d 1537 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Duskin Claude BECKER, Defendant-Appellant.

No. 92-30480.

United States Court of Appeals, Ninth Circuit

May 9, 1994

Argued and Submitted Nov. 1, 1993.

Page 1538

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

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

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 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...

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