U.S. v. Alejandro

• Citation: 368 F.3d 130
• Decision Date: 13 May 2004
• Docket Number: Docket No. 02-1538.
• Parties: UNITED STATES of America, Appellee, v. Jose ALEJANDRO, also known as Green Eyes, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

368 F.3d 130

UNITED STATES of America, Appellee, v. Jose ALEJANDRO, also known as Green Eyes, Defendant-Appellant.

Docket No. 02-1538.

United States Court of Appeals, Second Circuit.

Argued: February 12, 2004.

Decided: May 13, 2004.

Jonathan J. Einhorn, New Haven, CT, for Defendant-Appellant.

Everardo A. Rodriguez, Assistant United States Attorney for the Western District of New York (Michael A. Battle, United States Attorney, of counsel), Rochester, NY, for Appellee.

Before: JACOBS, SACK, and RAGGI, Circuit Judges.

SACK, Circuit Judge.

The defendant-appellant Jose Alejandro appeals from the August 28, 2002, judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) sentencing him principally to 250 months' imprisonment after a jury found him guilty of three narcotics crimes and a firearm-related crime. In a summary order filed today, we resolve this appeal with respect to all but one of Alejandro's arguments, concluding that they are without merit.

In this opinion, we address Alejandro's remaining argument, that the district court erred by denying his motion to suppress evidence, including an "Igloo"- brand cooler and its contents, found in his apartment at the time of his arrest. He asserts that the officers who arrested him violated the "knock and announce" rule and the Fourth Amendment by obtaining entry to his apartment by means of a ruse. The government responds that the "knock and announce" rule is inapplicable to the officers' method of entry because they neither broke anything to enter Alejandro's apartment, nor violated Alejandro's Fourth Amendment rights. We agree with the government and therefore affirm the judgment of the district court with respect to these issues.

BACKGROUND

On May 17, 2000, Jose Alejandro was charged by criminal complaint in the United States District Court for the Western District of New York with conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On the basis of the complaint, Magistrate Judge Jonathan W. Feldman issued a warrant for Alejandro's arrest.

The next morning, Monroe County Sheriff's Deputy Patricios Rojas, Jr., and three other law enforcement officers were sent to execute the arrest warrant. One of the officers testified that before arriving at Alejandro's residence, the four officers learned of or discussed various ruses to gain entry to a residence. Under one of these, an officer would pretend to be an employee of Rochester Gas & Electric Corporation ("RG&E"), the local public utility company.

The four officers, all wearing bulletproof vests and insignia that identified them as law enforcement officers, drove to a two-family residence in Rochester, New York. The residence had one apartment downstairs and another upstairs. The officers thought the latter to be Alejandro's. Shortly after 6 a.m., Deputy Rojas opened the front door of the house, which was unlocked. The officers climbed a staircase to a second-floor landing, where the entrance door for the upstairs apartment — then closed — was located.

Rojas put his ear to the door in an attempt to determine what, if anything, was transpiring inside the apartment. He heard nothing. He then knocked on the door. No one answered. After knocking three times, he again put his ear to the door and heard someone moving about inside the apartment. Still, no one answered the door. He continued knocking for some three to five minutes.

Rojas then announced to whoever may have been inside that he was an RG & E employee, that there was a gas leak in the area, and that he needed to get into the apartment. Alejandro came to the door and opened it. The four officers, with weapons drawn, identified themselves as law enforcement and told Alejandro that he was under arrest. The officers thus gained entry to the apartment without the use of physical force and without causing any physical damage to the apartment or its entrance way.

After securing Alejandro, the officers performed a search of several areas in the apartment. During the search, Rojas and another officer looked inside a bedroom, where they saw a closet door ajar. They opened the door further and found an open "Igloo"-brand cooler inside. Without moving anything inside the closet, they saw that the cooler's contents included money and what appeared to be (and were later confirmed to be) illicit drugs. The officers thereupon applied for a search warrant. After Magistrate Judge Feldman signed the warrant, the officers seized the cooler and its contents.

On October 26, 2000, a grand jury issued a superseding indictment charging Alejandro with (1) conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; (2) distribution of and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (3) distribution of and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and (4) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 921(g)(1) and 924(a)(2).

Alejandro moved to suppress evidence seized from his apartment, including the cooler and its contents. One basis for his motion was his assertion that the officers violated the "knock and announce" rule by using a ruse to gain entry to his apartment.¹ The district court held a hearing on the motion, at which the four officers and Alejandro testified. The court then made findings of fact, which are reflected in the foregoing recitation of facts. The court thereupon denied Alejandro's motion to suppress, explaining that the law enforcement officers did not violate the "knock and announce" rule, as set forth in 18 U.S.C. § 3109, because they made no forcible entry into Alejandro's apartment inasmuch as it was Alejandro who opened the entrance door. When Alejandro did so, the court continued, the officers properly identified themselves as law enforcement officers and announced that they had a warrant for Alejandro's arrest.

A jury subsequently found Alejandro guilty of all four charges. He was sentenced principally to 250 months' imprisonment.

Alejandro appeals.

DISCUSSION

Alejandro contends that the district court erred by denying his motion to suppress as evidence the cooler and its contents because it was the fruit of the officers' entry into his apartment in violation of the "knock and announce" rule. He maintains that he opened his apartment door for the officers on the basis of Rojas's misrepresentation that he was an RG & E employee investigating a gas leak. Alejandro argues that the law enforcement officers thus violated both 18 U.S.C. § 3109, which sets forth the circumstances under which a law enforcement officer may break into a house to execute a warrant, and the Fourth Amendment. The government responds that the "knock and announce" rule is inapplicable here because the officers did not "break" anything to enable them to enter the apartment, and the ruse did not violate Alejandro's Fourth Amendment rights. We agree with the government that Rojas's successful ruse to get Alejandro to open his door by proclaiming himself to be a utility worker investigating a gas leak was not a "break[ing]" prohibited by section 3109 and did not violate the Fourth Amendment.² We therefore affirm.

I. Standard of Review

In evaluating a district court's ruling on a motion to suppress evidence, we review the court's legal conclusions de novo. United States v. Yousef, 327 F.3d 56, 124 (2d Cir.), cert. denied, 540 U.S. 933, 124 S.Ct. 353, 157 L.Ed.2d 241 (2003), and cert. denied, 540 U.S. 993, 124 S.Ct. 492, 157 L.Ed.2d 392 (2003).

II. 18 U.S.C. § 3109

18 U.S.C. § 3109 permits an officer to:

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 the warrant.

Although, on its face, the statutory language covers only the execution of a search warrant, the Supreme Court has indicated that officers without a search warrant must have met section 3109's statutory criteria to have made a valid arrest pursuant to an arrest warrant in a residence, as in the case before us. See Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958);³ see also People v. Floyd, 26 N.Y.2d 558, 562, 260 N.E.2d 815, 816, 312 N.Y.S.2d 193, 194 (1970) ("In [New York] State, for a long time by statute, and at the common law, police in breaking open and entering premises for the purpose of making an otherwise lawful arrest must give notice to the occupants of who they are and the purpose for which they seek entry." (citations omitted)). Nevertheless, the statute, by its terms, does not apply to an officer who does not "break" anything "open" to enter a residence. See 18 U.S.C. § 3109; see also United States v. Di Stefano, 555 F.2d 1094, 1100 n. 5 (2d Cir.1977) (dicta).

This so-called "knock and announce" rule is deeply ingrained in the Anglo-American legal tradition. "From earliest days, the common law drastically limited the authority of law officers to break open the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle." Miller, 357 U.S. at 306-07, 78 S.Ct. 1190 (footnote omitted); see also United States v. Brown, 52 F.3d 415, 420-21 (2d Cir.1995) (summarizing the common-law antecedents of the "knock and announce" rule), cert. denied, 516 U.S. 1068, 116 S.Ct. 754, 133 L.Ed.2d 701 (1996). Under the common law, "breaking was unlawful where the officer failed first to state his authority and purpose for demanding admission." Miller, 357 U.S. at 308...