U.S. v. Gallegos

• Decision Date: 11 December 2002
• Docket Number: No. 02-4012.,02-4012.
• Citation: 314 F.3d 456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell GALLEGOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 456

UNITED STATES of America, Plaintiff-Appellee, v. Russell GALLEGOS, Defendant-Appellant.

No. 02-4012.

United States Court of Appeals, Tenth Circuit.

December 11, 2002.

Stephen R. McCaughey, Salt Lake City, UT, for Defendant-Appellant.

Richard D. McKelvie, Assistant United States Attorney (Paul M. Warner, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and HENRY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Russell Gallegos entered a conditional guilty plea to one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of carrying or possessing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). In so doing, Mr. Gallegos reserved his right to appeal the district court's order denying in part and granting in part his motion to suppress evidence obtained from a search of his residence, a safe deposit box, and two storage sheds. The magistrate judge to whom the case was referred recommended that the motion be granted as to evidence seized pursuant to the search of one storage shed, but denied as to all the other evidence seized. The district court overruled objections and adopted the magistrate judge's report and recommendation in its entirety.

On appeal, Mr. Gallegos argues that: (1) the search warrant for his residence was unsupported by probable cause; (2) the officers executing the warrant violated the "knock and announce" rule of 18 U.S.C. § 3109; (3) the officers exceeded the scope of the warrant by seizing items not identified therein; (4) the consent to search given by Mr. Gallegos' co-defendant was invalid because it was the product of coercion; and that (5) the fruits of the foregoing illegalities were not rendered admissible under the good faith exception to the exclusionary rule. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

Background

On February 2, 1999, agents with the Federal Bureau of Investigation obtained a search warrant authorizing the search of Mr. Gallegos' home, which he shared with his young son and his codefendant, Sandra Rawlinson. The terms of the warrant provided that it could be executed at any time, day or night. Two days later, the agents met with several officers from the Drug Enforcement Agency and the Department of Public Safety to discuss the specifics of how the warrant should be executed. At this meeting the officers decided to execute the warrant on February 5, 1999 at 4:00 a.m. The officers also discussed the physical layout of the residence, which revealed that the bedrooms in the home were located on the second floor. The officers assigned the task of actually knocking on the front door were instructed to forcibly enter the residence if, in their estimation, an "adequate amount of time" had elapsed with no response from the occupants. II R. 25. No specific instructions were given as to what constituted an "adequate" amount of time.

The following morning, approximately 23 officers met at a remote location and drove to the target neighborhood, parking approximately one-half block from Mr. Gallegos' residence. The agent in charge of the operation testified that as he approached the residence he observed no lights on in the house and that it was dark outside. II R. 28, 30-31.¹ At approximately 4:00 a.m. a member of the entry team began knocking loudly on the front door as the agent in charge yelled "police[,] FBI, search warrant." II R. 10, 11. The agent testified that after waiting approximately five to ten seconds, the entry team began attempting to breach the door with a battering ram. He further testified that as he yelled, he observed no response from within the residence.

After gaining access through the front door, the entry team split into two groups to secure the first and second floors of the residence. The officers assigned to secure the second floor encountered Mr. Gallegos exiting the northeast upstairs bedroom with a loaded nine-millimeter handgun, which he dropped at the direction of the officers. The officers thereafter secured the residence, and Mr. Gallegos and Ms. Rawlinson were taken into custody.

Discussion

Mr. Gallegos claims that the law enforcement officers involved in the execution of the warrant ("the officers") violated the "knock and announce" rule of 18 U.S.C. § 3109. Specifically, Mr. Gallegos alleges that even if the officers properly announced their presence and purpose, he lacked sufficient time to either grant or refuse entry to the officers. We hold that the officers failed to comply with the requirements of 18 U.S.C. § 3109, and that any evidence obtained during the ensuing search must therefore be suppressed. In light of this holding, we need not address Mr. Gallegos' alternative claims.

On appeal from the denial of a motion to suppress, we review the district court's factual findings for clear error, its conclusions of law de novo, and view the evidence in the light most favorable to the prevailing party. United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995). The Supreme Court has held that the "knock and announce" principle embodied in § 3109 "forms a part of the reasonableness inquiry under the Fourth Amendment." Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Consequently, we review the district court's legal conclusion that the officers complied with § 3109 de novo, and the factual determinations underlying that conclusion for clear error. See United States v. Granville, 222 F.3d 1214, 1217 (9th Cir.2000) (reviewing de novo the district court's "legal conclusion that the knock and announce statute was complied with."); United States v. Dice, 200 F.3d 978, 982 (6th Cir.2000) (holding that "[t]his Court reviews de novo the district court's legal conclusion regarding the suppression of evidence for a knock-and-announce violation"); cf. Maden, 64 F.3d at 1508 (holding that the question of whether exigent circumstances existed excusing compliance with § 3109 is reviewed de novo).

The "knock and announce" rule, codified at 18 U.S.C. § 3109, provides that a law enforcement 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 a warrant.

(emphasis added). Although the statute has existed in its current form only since the late 1940s, the origins of the rule it declares have been traced to the "earliest days" of our common-law history. Miller v. United States, 357 U.S. 301, 306-07, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (tracing origins of the "knock and announce" rule to recorded 15th century precedent). Furthermore, in United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986), we observed that the purpose of § 3109 is to decrease the potential for violence, protect the privacy rights of individuals, and avoid the unnecessary destruction of property. In elaborating on these purposes, the Supreme Court has held that the privacy interests advanced by the rule include: (1) permitting individuals to comply with the law by peaceably permitting officers to enter their homes; (2) avoiding the unnecessary destruction of property that attends a forcible entry; and (3) providing an opportunity for occupants to "prepare themselves" for entry by law enforcement officers by, for example, "pull[ing] on clothes or get[ting] out of bed." Richards v. Wisconsin, 520 U.S. 385, 393 n. 5, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

The importance of the "knock and announce" rule is further evidenced by its express incorporation into our modern-day Fourth Amendment doctrine, see Wilson, 514 U.S. at 934, 115 S.Ct. 1914, and the significant consequences attending its violation: suppression of all evidence that is seized in a subsequent search as derivative evidence. See, e.g., Sabbath v. United States, 391 U.S. 585, 586, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Ruminer, 786 F.2d at 383. Indeed, the Supreme Court has described § 3109 as codifying a rule that is "deeply rooted in our heritage and [that] should not be given grudging application." Miller, 357 U.S. at 313, 78 S.Ct. 1190.

The starting point of our analysis must be the language of the statute. As noted above, § 3109 permits law enforcement officers to forcibly enter a residence, if after announcing their presence and purpose, the officers are refused entry. The first prong of the rule requires officers to announce their presence and purpose before breaking into an individual's home. Although Mr. Gallegos contends that there is at least a question as to whether the officers complied with this requirement, we hold that the district court's factual finding that the officers announced their presence and purpose before entering is not clearly erroneous. We also agree with the district court that no exigent circumstances attended the search of the Gallegos residence. The question, therefore, becomes whether an objectively reasonable officer would believe that he was refused admittance based on the facts and circumstances known to him at the time of entry.

It is by now well-established that an occupant of a home need not affirmatively refuse admittance to trigger the right of the police to enter by force. United States v. Knapp, 1 F.3d 1026, 1030 (10th Cir.1993). On the contrary, the refusal may be "constructive" or "reasonably inferred" from the circumstances. Id. (quoting United States v. Bonner, 874 F.2d 822, 824 (D.C.Cir.1989)). In United States v. Moore, 91 F.3d 96 (10th Cir.1996), we held that a constructive refusal occurs, giving police the right to enter by force, where "the occupants do not admit the officers within a reasonable period of time." Id. at 98 (citing Knapp, 1 F.3d at 1031).

At least...