State v. Ribe, 920234-CA

Citation876 P.2d 403
Decision Date26 May 1994
Docket NumberNo. 920234-CA,920234-CA
PartiesSTATE of Utah, Plaintiff and Appellee, v. Arthur RIBE, Defendant and Appellant.
CourtCourt of Appeals of Utah

Robert Breeze (argued), Salt Lake City, for appellant.

Todd A. Utzinger, Asst. Atty. Gen., (argued), Jan Graham, State Atty. Gen., Salt Lake City, for plaintiff.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

ORME, Associate Presiding Judge:

Defendant entered a conditional guilty plea to possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1992). Defendant now appeals the denial of his motion to suppress evidence that the State concedes was seized in violation of Utah's knock-and-announce statute, Utah Code Ann. § 77-23-10 (1990). We reverse.

FACTS

On March 19, 1991, Detectives Kevin Judd and Craig Watson, along with several other officers from the Salt Lake County Sheriff's Office and the Metro Narcotics Strike Force, proceeded to defendant's residence to execute a knock-and-announce search warrant. 1

As the police approached defendant's residence on foot, they observed him standing just outside the front door of his home. After seeing the officers, defendant fled. Detective Judd observed defendant fleeing, and several officers quickly pursued him. Rather than give chase, Judd followed his assignment and ran immediately to the front door. He found the primary door open, but the storm door closed. This situation enabled him to see directly into the living room. Detective Judd testified that he could see into the living room, not that he saw any individual or any controlled substance inside the home. Without knocking, announcing he had a warrant, or waiting for someone to answer the door, Detective Judd "grabbed the door and called, 'Police,' and ran in." 2 As soon as he stepped through the doorway, he yelled "Police. Don't move." Directly to his left he observed defendant's wife sitting on a couch.

After securing defendant approximately ten feet from his home and entering the house, the officers apparently realized the search warrant had been left at the police station. An officer immediately retrieved the warrant and allowed defendant and his wife to examine it. Marijuana was then seized from inside the home.

Defendant filed a motion to suppress the marijuana on the basis that the seizure violated Utah's knock-and-announce statute. The trial court denied defendant's motion and made the following findings from the bench:

My finding is that the police did announce their presence.... 3

Further, it's my finding that the circumstances were such that, and all of the witnesses attested to this, the defendant was exiting the home as the police arrived, heard the police identify themselves as police, saw them in uniform, saw them in the vicinity of police vehicles, and that, according to the testimony of at least some of the police officers, he fled from the police.

It's my finding that actual notice is the legal requirement, and that occurred in this instance.

Further, it's my finding that based upon the testimony of Officers Watson and Judd, the door in question was open, not closed, obviating in part the knock requirement, especially in view of the fact that the testimony was clear that the defendant had already seen these individuals as he was exiting, or as he had already exited the [house].

The court's subsequent clarifying order states, in part, as follows:

After having reviewed the transcripts and having heard argument from the parties the Court ruled that the police did in fact announce their presence, that the testimony of the Defendant's wife was lacking in credibility in view of the totality of facts and circumstances and that the police announced their presence and the defendant saw them and that the police had a search warrant, and that [although] the storm door was closed[,] the wooden door was open. Therefore, the Motion to Suppress was denied.

Defendant appeals, claiming the trial court erred in not suppressing the evidence. The State concedes that the officers in this case violated Utah Code Ann. § 77-23-10 (1990) when they entered defendant's home without first knocking and waiting for a response because the warrant did not authorize a no-knock entry. The State also concedes that there were no exigent circumstances to justify entry on a no-knock basis. The sole issue, therefore, is whether the violation of Utah's knock-and-announce statute, Utah Code Ann. § 77-23-10 (1990), under the circumstances presented in this case, requires suppression of the evidence obtained in the course of the unlawful search.

STANDARD OF REVIEW

We review the trial court's denial of defendant's motion to suppress in a bifurcated manner, reviewing its subsidiary and factual determinations under a clearly erroneous standard and reviewing its legal conclusions for correctness. See State v. Pena, 869 P.2d 932, 935-40 (Utah 1994); State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993); State v. Ramirez, 817 P.2d 774, 781 n. 3 (Utah 1991); State v. Godina-Luna, 826 P.2d 652, 654 (Utah App.1992); State v. Vigil, 815 P.2d 1296, 1298 (Utah App.1991).

DEFENDANT'S ARGUMENT

Defendant argues that the determinative issue is whether a violation of section 77-23-10 necessarily constitutes a violation of the Fourth Amendment to the United States Constitution. 4 Defendant urges us to adopt "the current status of the law in the 10th Circuit ... [which] is that a violation of the knock and announce statute is a Fourth Amendment violation." E.g., United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986) (if officers fail to announce authority and purpose before entering dwelling, and no exigent circumstances shown, evidence "must be suppressed"). Since the officer's no-knock entry violated the knock-and-announce rules, the appropriate remedy, defendant urges, is suppression because knock-and-announce rules encompass substantive rights that rise to a constitutional level. E.g., United States v. Baker, 638 F.2d 198, 202 (10th Cir.1980) (if "the executing officers failed entirely to announce their authority and purpose before kicking down the door and entering the apartment, and ... no exigent circumstances were shown, the evidence seized must be suppressed").

Defendant's argument also implicates the doctrine discussed in State v. Rowe, 850 P.2d 427 (Utah 1992). Rowe addressed the question of whether suppression was the appropriate remedy for an acknowledged violation of Utah's nighttime search warrant provision, Utah Code Ann. § 77-23-5 (1990). The Utah Supreme Court stated in Rowe:

We have previously held that suppression of evidence is an appropriate remedy for illegal police conduct only when that conduct implicates a fundamental violation of a defendant's rights:

Only a 'fundamental' violation of [a rule of criminal procedure] requires automatic suppression, and a violation is 'fundamental' only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards. Where the alleged violation ... is not 'fundamental' suppression is required only where: (1) there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the [r]ule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision of the [r]ule....

... It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.

850 P.2d at 429 (modifications in original; footnotes omitted) (quoting State v. Fixel, 744 P.2d 1366, 1369 (Utah 1987)). Defendant reasons that if a violation of section 77-23-10 also constituted a violation of the Fourth Amendment, then suppression would be warranted pursuant to Rowe since it would constitute a "fundamental" violation. 5 See, e.g., United States v. Mueller, 902 F.2d 336, 343 (5th Cir.1990) (opining that most circuits have followed doctrine that violation of federal knock-and-announce statute should be considered a violation of the Fourth Amendment).

STATE'S ARGUMENT

The State argues that, despite the violation of section 77-23-10, suppression is not an appropriate remedy because the conduct was not an egregious violation and none of the basic interests that support the knock-and-announce requirement were appreciably compromised. 6

Specifically, the State asserts that in State v. Buck, 756 P.2d 700 (Utah 1988), the seminal case on section 77-23-10, the knock-and-announce requirements were clearly violated. The Supreme Court of Utah, in determining the appropriate remedy, analyzed the violation in terms of how it affected the interests that the statute was intended to protect. The interests 7 supporting the knock-and-announce requirement were stated to be "(1) the protection of an individual's private activities within his home, (2) the prevention of violence and physical injury to both police and occupants which may result from an unannounced police entry, and (3) the prevention of property damage resulting from forced entry." Buck, 756 P.2d at 701. With the benefit of hindsight, the State argues that because "none of the interests identified in Buck were appreciably compromised by the police conduct in this case," suppression is inappropriate.

KNOCK-AND-ANNOUNCE STATUTE AND SUPPRESSION: BACKGROUND

"The proposition that police must ordinarily give notice of their authority and purpose prior to making an entry of premises to arrest a person therein, which has common law credentials and is often found expressed by statute, seems to have been viewed by the Supreme Court in Ker v. California as a Fourth Amendment requirement." 8 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.6 at 183 (2d ed. 1992). "Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), is regarded as authority for the proposition that 'the...

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