956 F.2d 843 (8th Cir. 1992), 90-2330, United States v. Moore

Docket Nº:90-2330.
Citation:956 F.2d 843
Party Name:UNITED STATES of America, Appellant, v. Phillip MOORE, Appellee.
Case Date:February 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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956 F.2d 843 (8th Cir. 1992)

UNITED STATES of America, Appellant,


Phillip MOORE, Appellee.

No. 90-2330.

United States Court of Appeals, Eighth Circuit

February 12, 1992

Submitted Feb. 12, 1991.

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[Copyrighted Material Omitted]

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Donald L. Schense, Omaha, Neb., argued (Ronald D. Lahners, on brief), for appellant.

James M. Davis, Omaha, Neb., argued, for appellee.

Before MAGILL, BEAM and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

The United States appeals an order of the district court granting appellee Phillip Moore's motion to suppress evidence seized in a search conducted by state law enforcement officers pursuant to a state search warrant. The district court held that the no-knock entry authorized by the warrant violated the knock-and-announce requirements of 18 U.S.C. § 3109. We conclude that this federal statute is inapplicable and that, under Nebraska law and the Fourth Amendment, the evidence is admissible under the good faith standard of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we reverse.


On October 24, 1989, Officer Michael Terrell of the Omaha Police Department applied for a warrant to search Moore's residence. Based upon information supplied by a reliable confidential informant, Terrell's Affidavit and Application stated that Moore had sold controlled substances from his residence within the previous 48 hours and was in possession of "a quantity of marijuana and other suspected narcotics packaged for street sale." Terrell requested a "no-knock" search warrant, averring:

officers know from past experience that the evidence being sought could easily be destroyed by flushing it down the toilet or sink if officers were required to announce their presence and purpose.

A Nebraska County Court judge issued the requested warrant, expressly authorizing officers executing the warrant to "enter the premises described above without knocking or announcing their authority."

The next morning, Terrell and other officers knocked down the door, entered Moore's residence, and then announced their presence and purpose. The officers detained Moore and, during their subsequent search, found several sets of controlled substances packaged for sale, a handgun, and drug paraphernalia.

The state charged Moore with a drug offense. Before his trial, it was discovered that his residence is within one thousand feet of an elementary school. Federal law calls for twice the maximum punishment otherwise allowed in these circumstances. A federal grand jury then indicted Moore on two counts of possessing a controlled substance with intent to distribute within one thousand feet of an elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 845a (now § 860), and the state charges against him were dismissed.

Before his federal trial, Moore filed a motion to suppress all evidence seized by the state officers. Following an evidentiary hearing, the district court held (i) that the legality of the seizure for purposes of this federal prosecution must be determined "as if the search and seizure had been made by federal officers," citing Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); (ii) that the evidence must be excluded because the no-knock search warrant violated 18 U.S.C. § 3109 (1988); 1 and (iii) that the

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evidence could not be admitted under the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because:

the affidavit is so completely lacking in particularized facts which would provide reasonable or probable cause to waive the knock and announce requirement of 18 U.S.C. § 3109 [that] the officers cannot be said to have had an objective reasonable belief in the sufficiency of the affidavit and the warrant issued therefrom.

The government has appealed the district court's decision, arguing that the evidence seized at Moore's residence is admissible under Leon's good faith exception to the exclusionary rule because the state officers' good faith should be determined under Nebraska rather than federal law.


In Leon, the Supreme Court held that the Fourth Amendment's exclusionary rule does not apply to "evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant." 468 U.S. at 922, 104 S.Ct. at 3420. As the district court noted, however, this good faith exception does not apply if the warrant was based upon an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 923, 104 S.Ct. at 3421. See also United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984), cert. denied sub nom., Harmon v. United States, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).

In this case, it is undisputed that the Nebraska judge had probable cause to issue the warrant to search Moore's residence. The issue is whether the no-knock entry was lawful. A Nebraska statute expressly authorizes state officers to obtain a no-knock search warrant, as was done here. See Neb.Rev.Stat. § 29-411 (1983), quoted infra p. 848. Section 3109, which governs the permissible scope of no-knock searches by federal law enforcement officers, does not authorize no-knock search warrants. The government does not contest the district court's conclusion that the no-knock entry in this case would have violated § 3109 if conducted by federal officers. Thus, the initial question is whether this federal statute was properly applied to exclude evidence seized by state officers acting under a search warrant issued pursuant to state law.


The district court concluded that § 3109 governs the conduct of these Nebraska officials because this is a federal prosecution. We disagree. It is true that, if state officers seize evidence in violation of the Fourth Amendment and turn that evidence over to federal officers (a practice known, when lawful, as the "silver platter"), the evidence must be excluded in a resulting federal prosecution. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Supreme Court reaffirmed this principle, in the rather sweeping language quoted by the district court, in Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964):

The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.

However, the Supreme Court has only considered this question in the context of evidence seized by state officials in violation of the Fourth Amendment. Likewise, our prior cases applying the Elkins/ Preston doctrine to exclude evidence seized by state officers from federal prosecutions have involved Fourth Amendment violations. See United States v. Keene, 915 F.2d 1164 (8th

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Cir.1990); 2 United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 712, 98 L.Ed.2d 662 (1988); United States v. Shegog, 787 F.2d 420, 422 (8th Cir.1986); United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983).

Elkins has also been cited in cases holding that evidence seized by state officers in conformity with the Fourth Amendment will not be suppressed in a federal prosecution because state law was violated. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987); United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985); United States v. Montgomery, 708 F.2d 343, 344 (8th Cir.1983). However, we do not read these decisions to mean that federal law governs all aspects of the admissibility in federal prosecutions of evidence independently acquired by state officers. Rather, they are based upon the proposition that, "states are not free to impose on Federal courts requirements more strict than those of the Federal laws or Constitution." United States v. Combs, 672 F.2d 574, 578 (6th Cir.1982).

Assuming, then, no violation of the Fourth Amendment (a question we take up in Part V, infra), we come to the narrow question at issue here--when state officers, acting totally without federal involvement, 3 seize evidence that is later offered in a federal prosecution, must that evidence be excluded if the no-knock entry violated § 3109, a federal statute that is more restrictive than the Fourth Amendment? We agree with the majority of federal courts that have declined to apply § 3109 in this situation. 4

"[T]he purpose of the exclusionary rule is to deter unlawful police conduct." United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975). This is not a case in which the state officers intentionally violated a federal statute that governed their conduct. 5 Here, § 3109 was irrelevant to Officer Terrell and the County Court judge at the time the warrant issued; they were acting under a state search warrant statute to investigate possible violations of state law. The high social cost of the exclusionary rule--"The criminal is to go free because the constable has blundered," as Justice Cardozo succinctly put it 6--requires that it have no application to situations where the constable has not blundered. See Illinois v.

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Krull, 480 U.S. 340, 347-349, 107 S.Ct. 1160, 1165-1167, 94 L.Ed.2d 364 (1987); Leon, 468 U.S. at 918-923, 104 S.Ct. at 3418-3421; Stone v. Powell, 428 U.S. 465, 482-496, 96 S.Ct. 3037, 3046-3053, 49 L.Ed.2d 1067 (1976); Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974). "[A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence ... must be carefully limited to the circumstances in...

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