Price v. State, 14-01-01028-CR.

• Decision Date: 12 September 2002
• Docket Number: No. 14-01-01028-CR.,14-01-01028-CR.
• Citation: 93 S.W.3d 358
• Parties: Gilbert Coleman PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

93 S.W.3d 358

Gilbert Coleman PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 14-01-01028-CR.

Court of Appeals of Texas, Houston (14th Dist.).

September 12, 2002.

Opinion on Overruling of Rehearing November 27, 2002.

COPYRIGHT MATERIAL OMITTED

Bob Wicoff, Houston, for Appellant.

Eric Kugler, Houston, for the State.

Panel consists of Justices YATES, SEYMORE, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

Gilbert Coleman Price appeals his conviction and sentence of three years deferred adjudication for possession of more than four but less than two-hundred grams of cocaine. Appellant contends the trial court erred in overruling his motion to suppress evidence pursuant to the Fourth and Fourteenth Amendments to the United States Constitution because the police violated the "knock and announce" rule. We reverse and remand for further proceedings consistent with this opinion.

Procedural Background

On April 23, 2001, Officer Michael R. Burdick executed a search and arrest warrant at appellant's home. Prior to trial, appellant filed a motion to suppress evidence, claiming the search and arrest "were conducted without legal justification" because the officers "did not comply with the `knock, announce, and wait' rule set out in federal law." The motion to suppress was heard on affidavits. Appellant's affidavit asserted that "[w]hen the police entered [his] house just before midnight on April 23, 2001, they did so via a forced hard entry through the side door. At no time did [he] or any of the other people in [his] house hear the police knock and announce themselves before they broke through the side door." Without presenting additional evidence, the State produced a single affidavit that had been submitted by Officer Burdick in support of the warrant to search appellant's home. The State relies exclusively upon the following sentence in the affidavit: "It has been the experience of your affiant that individuals who are in the possession of controlled substances are normally in possession of firearms and such should be considered armed and dangerous." Defendant pled guilty but reserved the right to appeal the trial court's denial of his motion to suppress.

Standard of Review

We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). We give great deference to a trial court's determination of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as here, the trial court does not file findings of fact, we assume the court made implicit findings that support its ruling, so long as those implied findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We conduct de novo review of mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Guzman, 955 S.W.2d at 89.

Legal Development

Whether the common law requirement that police knock and announce their presence prior to entering the home to search and/or arrest was covered under the Fourth Amendment had not been decided by the United States Supreme Court prior to the publication of Wilson v. Arkansas.¹ 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). In Wilson, the police entered the defendant's home by opening a screen door without first announcing their presence. Id. at 929, 115 S.Ct. 1914.

Once inside, the officers seized marijuana, methamphetamines, valium, narcotics paraphernalia, a gun, and ammunition. Id. Disagreeing with the Arkansas Supreme Court, the Supreme Court held that the common law "knock and announce" rule forms a part of the reasonableness inquiry under the Fourth Amendment. Id. at 930, 115 S.Ct. 1914. Although Wilson involved a search, not an arrest, LaFave indicates there is "little if any doubt" that the execution of arrest warrants also requires notice. 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.2(a) (3d ed.1996). Wilson incorporated the knock-and-announce rule into the Fourth Amendment but left unidentified the circumstances under which the failure to knock and announce would be excused. 514 U.S. at 936, 115 S.Ct. 1914. This fact intensive question was left to the lower courts. Id.

Even before the Supreme Court's jurisprudential shift in Wilson, lower courts invoked both the Ker factors and similar rationales in analyzing whether a failure to knock and announce would be permissible. See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir.1993); People v. Rosales, 68 Ca1.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489, 493 (1968) (providing exceptions for danger to the officer, destruction of evidence, or frustration of arrest); People v. Gastelo, 67 Ca1.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706, 707-08 (1967); see also Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557, 559-60 (1970). Other approaches provided for a blanket exception based on the assumption, usually viable in narcotics cases, that evidence could always be easily and rapidly discarded

Two years after Wilson, in Richards v. Wisconsin, the Supreme Court adopted the first approach and rejected the latter, holding:

In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (emphasis added); see also Roska v. Peterson, 304 F.3d 982, 989-90 (10th Cir. 2002). The court reasoned that "[t]his standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries." Richards, 520 U.S. at 394.

As Richards and Wilson are such recent cases, few intermediate Texas courts have addressed these issues. See Broussard v. State, 68 S.W.3d 197, 199 n. 2 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (en banc) (finding evidence insufficient to demonstrate counsel ineffective for failing to file a suppression motion based upon officers' unannounced entry); Stokes v. State, 978 S.W.2d 674, 676 (Tex.App.-Eastland 1998, pet. ref'd) (discussed below); Robinett v. Carlisle, 928 S.W.2d 623, 627 n. 5 (Tex. App.-Fort Worth 1996, pet. denied). No opinion from the Texas Court of Criminal Appeals is on point.

Discussion

The State does not dispute appellant's claim that Officer Burdick failed to knock and announce prior to entering the home. Rather, the State contends the search was lawful because Officer Burdick's warrant affidavit demonstrates knocking and announcing would have been dangerous and futile, one of the exceptions to the rule set out in Richards. 520 U.S. at 394, 117 S.Ct. 1416.

It is instructive to examine the circumstances under which courts have upheld no-knock entries. In Stokes v. State, a no-knock entry was upheld where the officer testified he had received reliable information from informants that guns (as well as marijuana) were in the residence. 978 S.W.2d at 675. Reasonable suspicion has been found where affidavits averred that a gun had been seen in the home more than five days prior to execution of the warrant. United States v. Brown, 276 F.3d 14, 14 (1st Cir.2002) (equally divided en banc decision). Other courts have affirmed nok-nock entries upon a showing that the defendant had little more than a violent past. See, e.g., United States v. Reilly, 224 F.3d 986, 991 (9th Cir.2000) (defendant sought in another jurisdiction for numerous violent offenses); United States v. Jewell, 60 F.3d 20, 23-24 (1st Cir.1995) (defendant kept a pit bull dog in the apartment, and had an "extensive history of arrest and conviction for violent crimes."); but see United States v. Bates, 84 F.3d 790, 796-97 (6th Cir.1996) (finding nok-nock entry illegal where, despite information that a gun was in the apartment, there was neither an indication that the defendants were violent and likely to use a weapon if confronted by law enforcement officers nor evidence they had a criminal history of violence or a reputation indicating they were likely to be violent). Additionally, affirmance has sometimes been based on combinations of a defendant's criminal past, violent threats, and police officers' suspicion that the defendant knew he was wanted. See, e.g., United States v Hawkins, 139 F.3d 29, 32 (1st Cir.1998). Exigent circumstances have also been found where the warrant stemmed from an investigation of a violent crime. See, e.g., State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717, 734 (2001) (multiple murders).

The showing required to invoke Richards' danger exception is "not high." 520 U.S. at 394-95, 117 S.Ct. 1416. Even with this low burden, however, our examination of the record reveals no evidence demonstrating the officers in this particular case had reason to believe appellant himself was either armed or dangerous. Officer Burdick's statement in his warrant affidavit, "It has been the experience of your affiant that individuals who are in the possession of controlled substances are normally in possession of firearms and such should be considered armed and dangerous," is not sufficient to justify a no-knock entry. See State v. Cohen, 191 Ariz. 471, 957 P.2d 1014, 1016 (1998) (affirming suppression under similar facts).² To be sure, drug dealers frequently respond with violence when threatened with arrest. Nevertheless, "if a per se exception were allowed for each category of criminal investigation that included a considerable— albeit hypothetical — risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless." Richards, 520 U.S. at 394, 117 S.Ct. 1416; see also United States v. Valdez, 302...