U.S. v. Bynum

• Citation: 362 F.3d 574
• Decision Date: 26 March 2004
• Docket Number: No. 03-10231.,03-10231.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael BYNUM, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

362 F.3d 574

UNITED STATES of America, Plaintiff-Appellee, v. Michael BYNUM, Defendant-Appellant.

No. 03-10231.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2004.

Filed March 26, 2004.

COPYRIGHT MATERIAL OMITTED

Robert G. Lucherini, Norman J. Reed, Las Vegas, NV, for the defendant-appellant.

Darin M. LaHood, Ray Gattinella, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-02-00470-PMP/PAL.

Before: SCHROEDER, Chief Judge, TALLMAN, and CALLAHAN, Circuit Judges.

TALLMAN, Circuit Judge:

Michael Bynum appeals his conviction and 77 month sentence following a conditional guilty plea to one count of being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bynum contends that the district court erred by denying his motion to suppress the pistol and the semi-automatic shotgun that North Las Vegas Police Department ("NLVPD") officers discovered in his apartment during the execution of a search warrant. Bynum first asserts that NLVPD officers failed to comply with the "knock and announce" requirement when executing the search warrant. Second, he contends that the seizure of the firearms was unlawful under the "plain view" doctrine. However, because the record establishes the existence of exigent circumstances threatening officer safety, the officers' no-knock entry violated neither the Fourth Amendment nor 18 U.S.C. § 3109. We lack jurisdiction to reach the merits of Bynum's "plain view" argument because he did not properly raise the issue before the district court nor preserve it in his plea agreement. We affirm.

I

A confidential informant ("CI") who had previously provided law enforcement with reliable information told NLVPD officers that narcotics, specifically crack cocaine, could be purchased from an individual residing at a particular apartment in North Las Vegas. Officers determined that the resident was Michael Bynum. The informant, while under police surveillance, conducted two controlled buys from Bynum's apartment. First, on January 22, 2002, the CI purchased rock cocaine in a face-to-face transaction. The CI provided a detailed description of Bynum and informed the police that Bynum had removed a handgun from his pocket during the sale. The second buy occurred on February 4, 2002. The CI purchased rock cocaine from an unidentified female in Bynum's apartment. While she was retrieving the drugs from a bedroom, the CI heard her speak with an unseen male.¹ The drugs obtained from both transactions were turned over to NLVPD and tested positively for cocaine.

On February 26, 2002, the officer responsible for this investigation, Detective Alexander Perez, instructed Detective Donald Pearson to conduct an undercover buy from Bynum's apartment. At approximately 3:00 p.m., Detective Pearson carried out the transaction while another officer waited nearby. Detective Pearson knocked on the back door of Bynum's apartment and identified himself as "Big Man." Bynum answered the door wearing no clothing except white tube socks and holding a chambered semi-automatic pistol at his side. Detective Pearson asked to purchase rock cocaine and Bynum retreated into the apartment out of sight. He returned moments later wearing red undershorts while still armed with the loaded pistol. Bynum then hesitated and asked a female also present in the apartment, "You seen him here before?" She assured Bynum that she had.² Bynum and Detective Pearson then completed the sale. As Detective Pearson turned and left, Bynum followed with the pistol still in his hand, apparently surveying the area for evidence of surveillance. Detective Pearson drove directly to the NLVPD station to test the contraband, which reacted positively for cocaine.

Based on the evidence gathered from these three buys — two by the CI and one by undercover Detective Pearson — Detective Perez then sought and was granted a Nevada state warrant authorizing a nighttime search of Bynum's apartment.³

Given the apartment's location in a high crime area and the fact that Bynum was armed and had exhibited unusually paranoid behavior during the day's earlier undercover buy, NLVPD officers considered the execution of this search warrant to be high-risk.

At approximately 10:00 p.m., less than seven hours after Detective Pearson's undercover buy, six police officers executed the search warrant. Officers detonated two Omniblast devices⁴ outside a window before employing a battering-ram to breach the door and gain entry into Bynum's apartment. The officers did not knock on Bynum's door, and they announced "Police, search warrant" only after commencing their forcible entry of the residence. Officers deployed two more Omniblast devices as they swept through the apartment. Officer Perez estimated that between 10 to 15 seconds elapsed before officers found Bynum in the bedroom along with the same woman who had been present in the apartment that afternoon.

During the subsequent search of the apartment for drugs and drug paraphernalia, NLVPD officers found the marked money from the undercover buy. Officers also seized a hand-gun found tucked behind the cushion of Bynum's living room couch and a loaded semi-automatic shotgun from the hallway closet.

Bynum was charged with being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a written motion to suppress the two firearms discovered during the search of his apartment, solely on the grounds that the officers' failure to knock and announce prior to entry violated his Fourth Amendment and state and federal statutory rights. On November 4, 2002, after an evidentiary hearing, the district court denied Bynum's motion, finding that officers had a reasonable suspicion that knocking and announcing would endanger themselves and civilian bystanders based on Bynum's exhibition of weapons during two of three drug buys. The district court found that exigent circumstances justified noncompliance with the knock and announce requirement. Shortly thereafter, Bynum entered a conditional guilty plea that reserved the right to appeal the district court's denial of his motion to suppress.

II

We review de novo the district court's denial of Bynum's motion to suppress the incriminating evidence. See United States v. Garcia, 205 F.3d 1182, 1186 (9th Cir.2000). Factual findings underlying the denial of the motion are reviewed for clear error. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir.2003). Whether exigent circumstances justified the officers' no-knock entry is a mixed question of law and fact that we review de novo. See United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir. 1996).

A

Bynum alleges that the manner in which NLVPD officers entered his apartment violated the knock and announce principles required by the Fourth Amendment, 18 U.S.C. § 3109, and Nevada state law, Nev.Rev.Stat. 179.055. We reject this contention and hold that the district court correctly ruled that sufficient exigent circumstances justified the no-knock entry of Bynum's apartment.

The Fourth Amendment and 18 U.S.C. § 3109⁵ both mandate that police officers entering a dwelling pursuant to a search warrant announce their purpose and authority and either wait a reasonable amount of time or be refused admittance before forcibly entering the residence. See Wilson v. Arkansas, 514 U.S. 927, 933-35, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); United States v. Chavez-Miranda, 306 F.3d 973, 980 (9th Cir.2002) (noting that officers may infer constructive refusal through silence after a significant amount of time under § 3109). This knock and announce requirement may be excused, however, by the presence of exigent circumstances. Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997); United States v. Peterson, 353 F.3d 1045, 1048 (9th Cir.2003). Exigent circumstances exist when officers 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." Richards, 520 U.S. at 394, 117 S.Ct. 1416. "This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Id. at 394-95, 117 S.Ct. 1416; see also Wilson, 514 U.S. at 935-36, 115 S.Ct. 1914. In a given case, any one factor analyzed under the totality of the circumstances may be sufficient to justify dispensing with the knock and announce requirement. Peterson, 353 F.3d at 1050 n. 5. Recently in United States v. Banks, 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003), the Supreme Court emphasized that "reasonableness [is] a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of the circumstances in a given case[.]" Id. at 525, 124 S.Ct. 521.

As we reiterated in United States v. Peterson, exigent circumstances justifying no-knock entries under the Fourth Amendment are equally relevant in the § 3109 context. 353 F.3d at 1051 ("[T]he exigent circumstances we discuss with regard to the Fourth Amendment apply with equal force in the § 3109 context."), citing United States v. Ramirez, 523 U.S. 65, 73, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998). The exigency exception to 18 U.S.C. § 3109 is measured by the same standard as applied to the Fourth Amendment reasonableness inquiry articulated in Richards v. Wisconsin. See Ramirez, 523 U.S. at 73, 118 S.Ct. 992. The analyses in these cases are, therefore, identical.

Our assessment of the exigent circumstances present when NLVPD officers entered Bynum's apartment is guided by Banks, the Supreme Court's most recent decision on the knock and announce...