U.S. v. Combs

• Citation: 394 F.3d 739
• Decision Date: 11 January 2005
• Docket Number: No. 03-30456.,03-30456.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert F. COMBS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

394 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, v. Robert F. COMBS, Defendant-Appellant.

No. 03-30456.

United States Court of Appeals, Ninth Circuit.

Submitted July 8, 2004.^*

Filed January 11, 2005.

Lance C. Wells, Anchorage, AK, for the appellant.

Jo Ann Farrington, Assistant United States Attorney, Anchorage, AK, for the appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-02-00108-1-JKS.

Before: HALL, KLEINFELD, and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Robert Combs appeals his conviction, following a bench trial, for maintaining a place for the manufacture of controlled substances, attempting to manufacture methamphetamine, being a felon in possession of a firearm, and criminal forfeiture. Combs asserts the district court erred in denying his motion to suppress evidence resulting from a search of his residence because the police did not physically knock on his door and therefore failed to adequately "knock and announce" before executing the search warrant. Whether the Fourth Amendment requires an actual "knock" on the door of a suspect's home before a search can be conducted is an issue of first impression in our circuit. We hold that under the totality of the circumstances presented in this case, the police acted reasonably in executing the warrant without first physically "knocking" on the front door of Combs's residence. Because there was no Fourth Amendment violation, we affirm the district court.

I. Background

After receiving an anonymous tip, Anchorage Police began investigating possible methamphetamine production and drug trafficking at the home of Robert Combs. A search warrant issued, based upon information obtained from the investigation, to search Combs's home at any time of the day or night for evidence of misconduct involving controlled substances.

On the morning of September 12, 2002, the search warrant was executed with the assistance of a Crisis Intervention Response Team ("CIRT"), a tactical police unit trained and equipped to handle high risk raids on suspected methamphetamine labs, which may involve exposure to various flammable, explosive, and toxic chemicals. The CIRT officers wore protective gear consisting of flash fire resistant Nomex balaclavas, gas masks, one-piece Nomex flight suits and Kevlar vests with police insignia.

Anchorage Police Lieutenant Steven Smith was in command. He had spent nearly seventeen years with the Anchorage Police Department, ten of which were with the CIRT. During those ten years, Lieutenant Smith participated in somewhere between thirty to forty warrant services. In addition to Lieutenant Smith, approximately ten to twelve CIRT officers were involved in the entry of Combs's house. Six officers were to make the actual entry at the door at the back of the house, while four to six additional officers were to provide cover.

When Lieutenant Smith arrived at the scene, he noticed smoke coming from the chimney and an acrid smell in the air. He also noticed what appeared to be an open flame at a window in the northeast corner of the house. Because the smoke and flame indicated that the occupants might be involved in the dangerous process of cooking methamphetamine, he became concerned for the CIRT unit's safety. There were flood lights and two surveillance cameras attached to the house and the windows to the garage were papered over. The officers knew the house was occupied because a woman was seen entering the house just before the warrant was executed.

Service of the warrant commenced when Lieutenant Smith parked his marked police car, with the overhead lights flashing, in front of the house and began making announcements regarding the warrant service over the public address system in the front grill of the vehicle. Lieutenant Smith repeatedly publicly announced, for a period of thirty seconds to a minute, "Anchorage Police with a warrant for 1502 West 32nd Avenue."

Although Lieutenant Smith could not see the approach of the CIRT from the south of the building, he heard the entry team officers around the location announcing, "Anchorage Police with a warrant." Sergeant Soto, a member of the CIRT, was part of the group approaching the back door to make entry. Soto's role during the search was to be the "breacher." He carried a metal battering ram and halogen tools for this purpose. When the team members finished assembling at the door, they waited while Lieutenant Smith continued to announce the police presence with a search warrant. At some point, Soto's team leader told him to breach. Soto hit the door on the doorknob side with the battering ram four or five times without success. His team leader instructed him to hit the hinged side of the door. After two hits, the door broke open and the officers entered the house. Soto estimated that he spent a total of ten to twelve seconds pounding on the door with the battering ram.

The subsequent search of the house resulted in the seizure of, among other things, evidence of an active methamphetamine lab, firearms, and currency from drug trafficking. Officers also obtained a statement from Combs after he was placed under arrest and advised of his rights. Combs moved for suppression of all of this evidence, arguing in part that the manner of execution of the search warrant was unreasonable because the police failed to properly "knock and announce" before breaching the door.¹

II. Discussion

The common-law principle that law enforcement officers should "knock and announce" their presence and authority before entering a dwelling is part of the reasonableness inquiry under the United States Constitution's Fourth Amendment guarantee against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).² However, "[t]he Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.... [T]he common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances." Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).³ A physical knock is only one factor to be considered in the reasonableness inquiry and is not determinative. See U.S. v. Chavez-Miranda, 306 F.3d 973, 980 (9th Cir.2002) (considering many factors in determining whether police entry was reasonable). Thus we must examine the totality of circumstances to determine whether a given search was reasonably executed.

A. The "Knock and Announce" Rule

That the government must announce its presence before entering a private home is a longstanding principle. In Wilson, the Supreme Court traced its origins to English common law. 514 U.S. at 931-33, 115 S.Ct. 1914 (surveying cases applying the knock and announce rule from the 17th and 18th Centuries and citing Blackstone, Sir Matthew Hale, and William Hawkins). The Court noted that the "common-law knock and announce principle was woven quickly into the fabric of early American law." Id. at 933, 115 S.Ct. 1914. It held that "the method of an officer's entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search or seizure." Id. at 934, 115 S.Ct. 1914. The Wilson Court left to the circuit courts the development of circumstances under which an entry is deemed reasonable under the Fourth Amendment. Id. at 936, 115 S.Ct. 1914.

While the definition of "reasonableness" was left for another day, the Wilson opinion does provide guidance in determining what is reasonable. The Court set forth a non-exhaustive list of occasions when "the presumption in favor of announcement necessarily ... give[s] way to contrary considerations." Id. at 935, 115 S.Ct. 1914. It identified circumstances when the rule need not be strictly followed, such as when there is a threat of physical violence against law enforcement, when chasing a fleeing felon, or where evidence "would likely be destroyed if advance notice were given." Id. at 936, 115 S.Ct. 1914. The Court was careful to note that the examples it gave were not a "comprehensive catalog of the relevant... factors," but rather illustrations of circumstances that may carry weight in a reasonableness determination. Id.

Since Wilson, the Court has reiterated that the knock and announce principle is a part of the reasonableness inquiry rather than a prerequisite for constitutional entry. See U.S. v. Banks, 540 U.S. 31, 35-36, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (noting that the Court has "fleshed out" the notion of reasonable execution on a "case by case" basis "largely avoiding categories and protocols for searches"). Instead of setting bright-line, rigid rules, the Court has "treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case" because "it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones." Id at 36, 124 S.Ct. 521. See also Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting categorical exception to the knock and announce requirement for felony drug cases; favoring instead a case-by-case analysis).

B. The "Knock"

With this guidance from the Supreme Court, we cannot accept Combs's assertion that without a literal knock, the entry into his home was per se unreasonable under the Fourth Amendment. Nor can we accept the government's position that a knock is never necessary under the Fourth Amendment. Neither of these strict categorical approaches is consistent with the reasonableness inquiry laid out by the Supreme Court. See Banks, 540 U.S. at 41, 124 S.Ct. 521 (rejecting both the argument that damage to property should not...