91 F.3d 96 (10th Cir. 1996), 95-3341, United States v. Moore

Docket Nº:95-3341.
Citation:91 F.3d 96
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Lamar M. MOORE, Defendant-Appellee.
Case Date:July 26, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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91 F.3d 96 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellant,


Lamar M. MOORE, Defendant-Appellee.

No. 95-3341.

United States Court of Appeals, Tenth Circuit

July 26, 1996

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        Montie R. Deer, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellant.

        Kurt P. Kerns, The Law Offices of Leslie F. Hulnick, P.A., Wichita, Kansas, for Defendant-Appellee.

        Before ANDERSON, BALDOCK, and HENRY, Circuit Judges.

        HENRY, Circuit Judge.

        The United States appeals from the district court's order suppressing evidence obtained during a search of the residence of defendant-appellee Lamar M. Moore. The central issue in this appeal is whether the government met its burden of demonstrating that state law enforcement officers were excused from the "knock and announce" requirement explicitly incorporated into our Fourth Amendment "reasonableness" inquiry by Wilson v. Arkansas, --- U.S. ----, ----, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976 (1995). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

        Mr. Moore was indicted on one count of possession with intent to distribute approximately eleven grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of carrying and using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Prior to trial, he moved to suppress all evidence obtained in the execution of a search warrant for his Wichita, Kansas residence.

        "On appeal from a motion to suppress, we accept the district court's factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. The question whether exigent circumstances exist ... presents a mixed question of fact and law which we review de novo." United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995) (citation omitted). "The reasonableness of a search and seizure under the Fourth Amendment is a question of law we review de novo." United States v. McCarty, 82 F.3d 943, 947 (10th Cir.1996).

        The following facts are either uncontested or are presented, as required by our cases, in the light most favorable to Mr. Moore. On December 29, 1994, members of the Wichita Police Department executed a search warrant for Mr. Moore's residence. One officer opened the screen door and then stepped aside as another officer announced their presence and indicated that they had a search warrant. "[N]early simultaneous[ly]" with their announcements, the officers forced

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open the door with a steel battering ram. Rec. vol. I, doc. 28 at 1 (Order of Suppression). The time that elapsed between announcement and battering was no more than three seconds. Id.

        State law enforcement officers are prohibited by the Fourth Amendment from conducting "unreasonable searches and seizures." Although the federal "knock and announce" statute, 18 U.S.C. § 3109, does not directly apply to state actors, we use § 3109 as a guide in conducting the "reasonableness" inquiry dictated by the Fourth Amendment. United...

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