State Of Del. v. Upshur
| Decision Date | 13 April 2011 |
| Docket Number | ID No. 1003003410 |
| Parties | STATE OF DELAWARE Plaintiff, v. STEFAN UPSHUR, Defendant. |
| Court | Delaware Superior Court |
Barzilai K. Axelrod, Esquire, Department of Justice, Wilmington, Delaware-Attorney for the State.
Joseph A. Hurley, Esquire, Wilmington, Delaware-Attorney for the Defendant
In this case the court holds that evidence seized pursuant to a valid search warrant is admissible even though the police violated the knock and announce rule when executing that warrant.
The Delaware State Police obtained a warrant to search defendant's residence at 1709 Tulip Street in Wilmington after three confidential informants purchased Oxycodone from the defendant. Two of those purchases were made at the defendant's residence. The warrant authorized a search for, and seizure of, illegal prescription narcotics, United States currency and firearms in close proximity to any controlled substances. The State Police viewed this as a high risk warrant because of the defendant's criminal history and the possibility he might be armed. As a result the Special Operations Response Team ("SORT") was designated by the police to execute the warrant.
SORT and State Police Detective Dewey Stout approached the Tulip Street residence in the early hours of March 5, 2010. At 6:05 a.m., State Police Officer Timothy Aube knocked on defendant's front door and announced (or words to that effect). In an interview given to police after he was arrested, defendant stated he was seated in a reclining chair and heard Officer Aube's knock and announcement. Defendant then "came to the door because I was going to open it when I heard the cops and I... put my hands up and my first response was to lay down because I didn't want to get shot or steppedon." Defendant did not open the front door, so Officer Aube forced it open. Photos taken of the front door by defendant at some unspecified time later show no discernable damage to the door.
SORT entered the home and, after securing the premises, conducted, along with Detective Stout, the search authorized by the warrant. They recovered a.45 caliber semi-automatic handgun, 319 Oxycodone tablets, numerous empty medicine bottles labeled for patients other than defendant, four empty prescription bottles for Oxycodone (from four different physicians) on which the defendant was listed as the patient and $3,857 in United States currency.
Defendant does not contest the validity of the warrant nor does he assert that the search exceeded the bounds of the warrant. Instead, he asserts that the knock and announce violated his rights under the Delaware constitution and the common law. He contends that this violation requires this court to exclude the items seized during the search which followed. In particular, Defendant contends that the police did not wait long enough before breaching his front door.
The evidence as to the length of time which elapsed between the knock and the breach of the front door is contradictory. Detective Stout, who was seated in a car down the street from the residence, estimated that at least fifteen seconds elapsed. On the other hand, the breaching officer, Officer Aube, testified that only about three seconds elapsed between his knock and the breach. It is tempting for the court todisregard Officer Aube's testimony. The court can fairly surmise that Officer Aube, who faced the prospect of an armed and dangerous suspect on the other side of the door, had things on his mind other than counting the seconds between the knock/announce and the breach. Still, it is hard to ignore the breaching officer's testimony. He was the closest witness to the entry and was in the best position to observe when the breach actually occurred. The court emphasizes it will not always assume that the breaching officer's testimony is more accurate than that of other observers. But under the circumstances of this case the court finds that the breach occurred within three seconds of the knock and announce.
There are two issues presently before the court. The first is whether the police violated the knock and announce rule before they executed the warrant at Defendant's home. If so, the second issue is the appropriate remedy for that violation.
The knock and announce rule requires police officers to announce their presence and purpose before entering a home. The police must wait a "reasonable" amount of time between the knock/announcement and entering the home. The debate over what constitutes a "reasonable" amount of time has spawned considerable litigation on the criminal side of most courts. The Delaware Supreme Court held in one case that a waitof three to five seconds is per se unreasonable. Because of its factual findings, this court is obligated to hold that the wait was unreasonable and the police therefore violated the knock and announce rule in this case.
In a nutshell the knock and announce rule can be summarized as follows:
Prior to the entry of a residence, the police officer is required by the common law, in executing a warrant, to signify the cause of his coming, and to make a request to open the doors... [and] the police are required to announce their presence, authority, and purpose in seeking entry.1
The roots of the knock and announce rule can be traced back through the English common law at least as far as the 1603 opinion in Semayne's case.2 This rule became the law of Delaware when the state's founders incorporated English common law into the law of Delaware.3 In 1863 this court described the rule in this fashion:
As officer with a warrant to arrest a party for a crime or misdemeanor, may not break into a house until he has demanded admittance and been refused. *** Pease officers having legal warrants to arrest for a breach of the peace, may break open doors after due notice and demand of admittance, for in such case the party's own house is no sanctuary for him.4
Delaware courts have identified two reasons for the rule:
These requirements have the two-fold purpose of protecting the privacy of residents by preventing police entry of the home without reasonable warning; and it reduces the possibility of danger to officer and citizen alike which might result from misunderstanding and misinterpretation of the purpose of the entry.5
Over the years exceptions to the rule have developed. For example, if the police officer in good faith believes that knocking and announcing will prompt the occupant to destroy evidence, the officer is excused from having to knock and announce. Similarly, if the officer in good faith believes that a knock and announce will place him or her at risk of harm, the officer is again excused from knocking and announcing.
The court's finding that only three seconds elapsed between the knock/announce and the breach ends the inquiry as to whether the police violated the knock and announce rule. Generally speaking, the length of time required between the knock/announce and the breach depends on the circumstances. That is not the case here. If this court were permitted to consider the surrounding circumstances-including Defendant's admission he knew the police were knocking and about to enter-it might conclude that the police did not violate the knock and announce rule. In Miller v. United States, the Supreme Court observed that "[i]t may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the [occupant] already knows their purpose so that announcement wouldbe a useless gesture."6 Subsequent cases often apply this "futility exception" to the knock and announce rule.7
Under the circumstance presented here, however, this court is not free to consider the surrounding circumstances. In Gregory v. State, 8 the Delaware Supreme Court established a per se rule that a wait of three to five seconds between the knock/announce and the breach is "per se unreasonable." Later decisions from other courts raise questions about the per se approach. For example, the Sixth Circuit Court of Appeals found that "[w]e need not decide whether a wait of five to ten seconds, standing alone, is adequate under the knock and announce rule, because the Fourth Amendment dictates only that the officers' overall actions be reasonable, not that they wait a prescribed length of time before forcible entry."9 However, if the per se rule is to change in this state, that change must come from the Delaware Supreme Court, not here. Therefore, being bound by the holding in Gregory, this court must find that the delay of only three seconds in this case is unreasonable and the police violated the knock and announce rule.10
Having concluded that the police violated the knock and announce rule, the next issue to be addressed is the appropriate remedy. Upshur's state constitutional claim raises several issues. First the court must determine whether knock and announce rule is embodied in the Delaware Constitution. Second the court must determine whether it is foreclosed by the Delaware Supreme Court's opinion in Dorsey v. State11 from determining something other than the exclusionary rule applies. Third it must determine whether the language and history of the Delaware Constitution as well as the policy of this state require application of the knock and announce rule here. Finally it must decide what remedy is appropriate.
The United States Supreme Court in Hudson v. Michigan12 held that the exclusionary rule does not apply to violation of the knock and announce rule under the Fourth Amendment. Knowing this, defendant Upshur has cleverly couched his arguments in terms of the Delaware Constitution. It is useful to examine the Supreme Court's holding in Hudson before...
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