U.S. v. Carter, 92-1956

• Citation: 999 F.2d 182
• Decision Date: 09 June 1993
• Docket Number: No. 92-1956,92-1956
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oliver S. CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 182

999 F.2d 182

UNITED STATES of America, Plaintiff-Appellee, v. Oliver S. CARTER, Defendant-Appellant.

No. 92-1956.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 4, 1992.

Decided June 9, 1993.

Daniel T. Flaherty, Milwaukee, WI (argued), for plaintiff-appellee.

John F. McNally, Jeffrey P. Zarzynski (argued), Hausmann & McNally, Milwaukee, WI (argued), for defendant-appellant.

Before COFFEY and EASTERBROOK, Circuit Judges, and ENGEL, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Oliver S. Carter was convicted of distributing approximately one-quarter ounce of cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Carter to eighty months imprisonment pursuant to the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). Carter contends that the district court erred in denying his motion to suppress the evidence seized in a search of his home, and in sentencing him. We affirm.

I. BACKGROUND

On the evening of August 27, 1991, Joseph Wichman ¹ and William Lamb, detectives of the Winnebago County, Wisconsin Sheriff's Department, arrested Rosemary Collins for parole violations. At the time of her arrest, Collins was seated in a car in which a "baggie" was found containing what was later determined to be cocaine. Fay Jones, who was with Collins at the time of the arrest, told Detective Wichman that she had given Collins a ride earlier in the evening to a home in the 1400 block of Menominee Drive in Oshkosh, Wisconsin. Jones pointed out the specific house Collins had visited that evening, which turned out to be the defendant Carter's home. Collins told the police that she had received the cocaine from Carter that night. She stated that she had gone to Carter's home, where Carter withdrew a quarter ounce of cocaine from a bag she estimated contained an ounce of cocaine. She purchased the quarter ounce for $400, $200 that evening and $200 on credit. Collins also advised the police that she had been purchasing cocaine from Collins two to three times per week for the past several months.

Later that evening, Wichman and Lamb consulted with Winnebago County District Attorney Joseph Paulus to determine if probable cause existed for a search warrant for Carter's house. Paulus approved the decision to obtain a search warrant, but asked Wichman to conduct a records check of Carter's criminal history. Paulus and Lamb indicated their belief that Carter had a history of weapons and narcotics offenses. Although there were no "open" investigative files on Carter at the drug unit, there were Drug Information Reports. These files are compiled by the police on individuals suspected of involvement with illegal drugs. Carter's file contained some seven or eight reports concerning Carter's activity in the drug world dating back to 1983. No firearms charges were included in these reports. Wichman also reviewed the Wisconsin computerized criminal records from the Winnebago County Sheriff's Department. The computerized records can be accessed at any time of day, but provide information only from the 1970's onward. These records revealed that Carter had three prior charges for carrying a concealed weapon and four prior narcotics charges, but no record of convictions. The records did not reveal any violent felonies in Carter's history, but District Attorney Paulus stated that he believed Carter had been convicted of armed robbery or attempted murder sometime during the 1960s. ² Because it was late at night, the earlier, non-computerized records, which could have confirmed Paulus' belief, were unavailable. (At a hearing on the suppression motion, the Government stated that in 1988 a search warrant had been executed at the defendant Carter's home. The police officers were looking for drugs. After the knock and announce during the execution of that search warrant, the officers reported hearing a toilet flushing, leading them to believe that any possible drug evidence might have been destroyed. District Attorney Paulus "made some comments [to Wichman and Lamb] ... that there had been a [previous] search warrant at [Carter's home]" prior to making the application for the search warrant in the instant case. However, Wichman testified that Paulus only mentioned that a prior search warrant had been issued and did not discuss the possible destruction of evidence in the prior search. Wichman learned of the details of the earlier search only after he searched Carter's home.)

Wichman reported to Paulus and to Assistant District Attorney Gritton the results of his research into Carter's criminal history. Gritton then helped Wichman prepare his affidavit in support of a search warrant for Carter's house. The warrant application papers were completed around midnight, and at this time Wichman, Lamb, Paulus, and Gritton proceeded to the home of a Wisconsin state judge. The judge reviewed the warrant application and Wichman's accompanying affidavit, and authorized the issuance of the warrant. As requested in the application, the warrant authorized the officers to enter Carter's house without knocking or announcing their presence.

The next morning, August 28, 1991, Wichman, along with other officers from the Drug Unit and members of the City of Oshkosh Police Department SWAT team, arrived at Carter's home. Wichman, with several SWAT team officers, went to the front door. Wichman pounded on the door with his fist three times, waited five to seven seconds, heard nothing, and then stepped aside as the SWAT team officers used a ram to break the door down. Wichman testified that "immediately as I entered the home; when I actually physically entered, I began calling" out "police officers" several times. ³ A search of the home turned up a quarter ounce of cocaine, 99 grams of opium, marijuana, and drug paraphernalia, including two gram scales, butane burners, and pipes, and the defendant Carter carrying $1,291 in U.S. currency.

Carter moved to suppress the evidence seized in his home, arguing that the Wisconsin state court judge should not have issued a "no-knock" warrant. Wichman testified that before issuing the search warrant, the judge reviewed the warrant application presented by the police. The judge did not ask the officers any questions. Therefore, we must assume that in issuing the no-knock warrant, the judge relied on the following assertion contained in Detective Wichman's affidavit: "based upon his experience and training in the field of narcotics it is a common practice for alleged narcotics dealers to be in possession of guns or other dangerous weapons in relation to the narcotics dealing. As a result, your affiant further requests that he be allowed to enter the residence by announcing that he is a police officer and without knocking."

A magistrate judge initially considered Carter's motion to suppress. The magistrate judge agreed with Carter that Wichman's affidavit statement was not an adequate basis for authorizing a no-knock entry, but nevertheless ruled that the evidence seized was admissible because the police officers relied in good faith on the faulty but facially valid warrant. The district court accepted the magistrate judge's recommendation, explaining that

"if ... there were ever a case to which [the good faith exception] would apply, this is it simply because the ... search warrant included a 'no knock' provision. Clearly from the evidence presented to [the state court judge] the 'no knock' warrant should not have issued, at least based upon the information that was provided to the court in the officer's affidavit.... [T]here is nothing in the intervening factual underpinnings of this case to suggest that the officers in their own minds ought to have revisited the factual predicate for implementation of the 'no knock' provision of the warrant."

II. ANALYSIS

A. Suppression of Evidence

The first issue we address is whether the district court properly denied Carter's motion to suppress the evidence seized at his home. The Government's brief does not challenge the district court's conclusion that the no-knock warrant should not have been issued. The Government instead argues the district court correctly admitted the evidence because the police relied in good faith on a facially valid warrant. The magistrate judge's discussion makes clear that he analyzed the issuance of the warrant under 18 U.S.C. § 3109, which provides that

"[t]he officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

Carter also argues that § 3109 provides the proper framework for the analysis of whether the search was constitutional under the Fourth Amendment.

In United States v. Andrus, 775 F.2d 825, 844 (7th Cir.1985), we held that "[s]ection 3109 regulates execution of a federal warrant by federal officers, but does not govern the conduct of state or local police officers executing state warrants." In this case, Carter's home was searched by local police officers executing a state warrant; § 3109 would therefore seem to be inapplicable. Andrus also stated, however, citing as support United States v. Valenzuela, 596 F.2d 824, 830 (9th Cir.), cert. denied sub nom. Lizarrage v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979), that the "fourth amendment ... embraces the principles of § 3109." 775 F.2d at 844. Valenzuela itself conceded that section 3109 "is not applicable of its own force" to searches conducted by state officers because the statute "is addressed to entries involving federal officers ... and the warrant here was executed by state officers only." 596 F.2d at 829-30. However, the Valenzuela court concluded that in light of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), "to some extent the...