U.S. v. Stewart

Decision Date08 February 1989
Docket NumberNo. 88-1250,88-1250
PartiesUNITED STATES of America, Plaintiff-Appellee, v. George Anthony STEWART, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Charles Szekely, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colo., for defendant-appellant.

Robert G. Chadwell, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., and Kathryn Meyer, Asst. U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.

Before LOGAN, SETH and TACHA, Circuit Judges.

SETH, Circuit Judge.

Defendant was indicted for multiple violations of Title 21 of the United States Code after members of the Denver Police Department's Special Weapons Attack Team (S.W.A.T.), acting in tandem with federal agents and under the authority of a federal search warrant, stormed into his residence and seized numerous bags containing cocaine and marijuana. The trial court conducted an evidentiary hearing on the defendant's motion to suppress the seized evidence and denied the motion. The defendant then entered a conditional plea of guilty to distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1), reserving the right to appeal the trial court's denial of the motion to suppress. This appeal followed. Because we find that the Denver S.W.A.T. team's entry into the defendant's residence violated 18 U.S.C. Sec. 3109, we reverse the trial court's denial of defendant's motion to suppress the seized evidence.

I.

An F.B.I. agent secured a federal warrant to search the defendant's house and to seize any drugs and firearms found within. The house was located in Denver and the search was to be a joint operation of the F.B.I. and the Denver Police S.W.A.T. team. The affidavit attached to the search warrant contained only conclusory statements, purportedly based on the affiant's experience (15 months as a special agent) and conversations with others regarding typical drug dealing operations. It noted that drug dealers usually keep records, receipts, cash and contraband at their residences, and maintain the names of associates. As to firearms, the affidavit again spoke in generalities:

"g. That cocaine and/or controlled substances traffickers do commonly possess and carry a firearm during the sale and distribution of cocaine and/or controlled substances."

The affidavit was specific only as to the purchase, apparently on two occasions, by an undercover agent of an ounce of cocaine from a Wiley E. McClain. On both occasions, this person was followed to the defendant's house and apparently there obtained the drugs. The search warrant was issued on the basis of the undercover agent's statements and contained no special provisions as to how the entry or search was to be conducted.

The Denver S.W.A.T. team (not the F.B.I.) had decided at least 24 hours before the federal warrant was obtained how the entry into the house was going to be made. The F.B.I. did not participate in this decision and the magistrate who issued the warrant was not advised of the plan. As mentioned, the warrant did not state anything as to how the entry was to be made. The Denver S.W.A.T. team and the F.B.I agents arrived at the defendant's house at about 10:30 in the evening. The S.W.A.T. team used a two-man steel battering ram to break down the front door and immediately threw a full charge stun grenade into the living room, where it detonated (as the officers stood back) with an explosion and flash. The occupants were blinded and disoriented for at least five or ten seconds. There was no knock and no warning before the door was broken down and the grenade was detonated. There were three people in the living room at the time, the defendant, a co-defendant and a woman who had no connection with any illegal activity. The co-defendant was slightly injured. None were armed although a semi-automatic pistol was found in an upstairs room during the subsequent search.

In its brief, the Government states that "[o]nce the residence was secured, a search was conducted by federal agents." The S.W.A.T. officers testified that they advised the F.B.I. agents by radio when the house was "secure." The search revealed the following items: three baggies of cocaine, eleven baggies of crack cocaine, two baggies of marijuana, six large bags of marijuana, a weighing scale, breathing masks, a bottle of Superior Inositol, and over $10,000 in cash. A loaded .45 caliber semi-automatic pistol was found in an upstairs bedroom, as mentioned.

There was no testimony that anyone had seen a gun in the house before the search. There were no other facts known to the police that would have led to the inference that firearms were present in the house, although the officers testified that they had been informed some months before that the defendant had been seen with a semi-automatic pistol at another time and place. The information as to the pistol was received from a private investigator, who in turn had heard it from an informer who at the time was smoking marijuana.

The officers had little other information about the defendant or his house. The officers testified that they knew that defendant had sold a small amount of cocaine to an intermediary, as mentioned, who then sold it to an undercover agent. They knew that defendant was a Jamaican and that some Jamaican drug dealers fortified their houses and most were armed. There had been no surveillance of the house and the officers did not know who or what was in the house at the time. The officers had no reason to think that the house was barricaded and indeed it was not barricaded.

The trial court did not consider whether the search was illegal given that the warrant was issued to an F.B.I. agent but executed by the Denver Police S.W.A.T. team. See Fed.R.Crim.Proc. 41(c); 18 U.S.C. Sec. 3105. We thus do not address that issue on appeal.

II.

In order to decide if the evidence obtained in the search was properly entered into evidence, we must determine whether the entry into the defendant's residence was lawful. The Government, citing Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177, argues that the method used in executing a warrant is left to the officers' discretion. Its argument is that officers may use what they know or have heard in deciding how the warrant will be executed, and this information may be in addition to that provided in the affidavit for the warrant. The dramatic method here used by the Denver S.W.A.T. team to accomplish the entry and to "secure" the premises was selected in the exercise of the team's discretion. It is apparent that this discretion is not without limitation as the action taken must be within statutory and constitutional limitations.

The statutory standard governing the conduct of the officers in this case is contained in 18 U.S.C. Sec. 3109, which requires the use of a knock and warning procedure:

"The officer may 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."

The Court in Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332, stated as to this provision:

"The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in Sec. 3109 the reverence of the law for the individual's right of privacy in his house."

Because we resolve this case under 18 U.S.C. Sec. 3109, it is unnecessary to consider the defendant's arguments under the Fourth Amendment.

This court has held that compliance with Sec. 3109 may be excused only when "exigent circumstances" exist. Thus "[i]f the record clearly establishes ... that the executing officers failed to announce their authority and purpose before forcibly entering the dwelling, and that no exigent circumstances were shown, the evidence seized must be suppressed as the fruit of an unlawful search." United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.) (citing Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828).

There is no contention by the Government that the "knock and announce" requirement was here followed in any respect. The steel battering ram operated by the two S.W.A.T. team officers knocked down the door without any warning whatsoever and the grenade was immediately thrown inside where it exploded. The S.W.A.T. team was in army fatigue type clothes. No uniforms or badges were apparent. The evidence seized during the search must be excluded unless it is determined that "exigent circumstances" existed at the time of the search that would justify the officers' decision not to knock and announce their purpose.

The question of whether exigent circumstances exist in the execution of a search warrant is a mixed question of law and fact. While we must accept the trial court's findings on the underlying facts surrounding the execution of the warrant unless they are clearly erroneous, Ruminer, 786 F.2d at 383, the...

To continue reading

Request your trial
60 cases
  • U.S. v. Beckford
    • United States
    • U.S. District Court — Eastern District of Virginia
    • March 28, 1997
    ...shown when the warrant was obtained had diminished in any way. The only authority Beckford cites to the contrary is United States v. Stewart, 867 F.2d 581 (10th Cir.1989). In Stewart, the Tenth Circuit found that exigent circumstances did not exist to justify the forcible entry into the def......
  • State v. Stevens, 92-1557-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • October 12, 1993
    ...520 P.2d 561, 562-63 (Utah 1974).14 See, e.g., United States v. Wulferdinger, 782 F.2d 1473, 1476 (9th Cir.1986); United States v. Stewart, 867 F.2d 581 (10th Cir.1989); United States v. Likas, 448 F.2d 607, 609 (7th Cir.1971); Reynolds v. Alabama, 46 Ala.App. 77, 238 So.2d 557, 559-560 (Cr......
  • U.S. v. Moore
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 12, 1992
    ...but the determination of whether those facts satisfy the legal test of exigency is subject to de novo review. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989). Officer Terrell's affidavit did not present sufficient indicia of exigent circumstances. The affidavit consisted only of......
  • U.S. v. D'Armond
    • United States
    • U.S. District Court — District of Kansas
    • October 13, 1999
    ...of whether those facts satisfy the legal test of exigency is subject to de novo review.'" Id. (quoting United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989)). The government bears the burden of proving exigency. United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993). In assessing w......
  • Request a trial to view additional results
9 books & journal articles
  • Search and Seizure: Property
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2018 Contents
    • August 17, 2018
    ...an unequivocal knowledge on the part of the authorities of the particular exigent circumstance(s) asserted. Ballard; U.S. v. Stewart, 867 F.2d 581 (10th Cir. 1989). For example, mere knowledge that there is a handgun on the premises is not enough. Ballard. The mere assumption that those in ......
  • Search and Seizure: Property
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2017 Contents
    • August 17, 2017
    ...an unequivocal knowledge on the part of the authorities of the particular exigent circumstance(s) asserted. Ballard; U.S. v. Stewart, 867 F.2d 581 (10th Cir. 1989). For example, mere knowledge that there is a handgun on the premises is not enough. Ballard. The mere assumption that those in ......
  • Search and seizure: property
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 1
    • May 5, 2022
    ...an unequivocal knowledge on the part of the authorities of the particular exigent circumstance(s) asserted. Ballard; U.S. v. Stewart, 867 F.2d 581 (10th Cir. 1989). For example, mere knowledge that there is a handgun on the premises is not enough. Ballard. The mere assumption that those in ......
  • Search and Seizure: Property
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2014 Contents
    • August 17, 2014
    ...an unequivocal knowledge on the part of the authorities of the particular exigent circumstance(s) asserted. Ballard; U.S. v. Stewart, 867 F.2d 581 (10th Cir. 1989). For example, mere knowledge that there is a handgun on the premises is not enough. Ballard. The mere assumption that those in ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT