U.S. v. Leichtnam

Decision Date21 November 1991
Docket NumberNo. 90-2534,90-2534
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daniel J. LEICHTNAM, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

John E. Fryatt, U.S. Atty., Paul Kanter, Asst. U.S. Atty. (argued), Milwaukee, Wis., for plaintiff-appellee.

Margaret Danielson (argued), Madison, Wis., for defendant-appellant.

Before COFFEY and MANION, Circuit Judges, and WILL, Senior District Judge. *

WILL, Senior District Judge.

Daniel Leichtnam was tried and convicted on drug conspiracy and firearms charges, 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 924(c), and was sentenced to 13 years and a month in prison plus supervised release. His appeal presents five questions, three of them substantial, beginning with the merits of his unsuccessful motion to suppress the guns and cocaine which the police found in his home.

* * *

Five Waukesha, Wisconsin police officers, carrying a federal search warrant, arrived at the duplex where Daniel Leichtnam was living at six a.m. on October 4, 1990. They tried the screen door on the front porch and, finding it locked, knocked and announced themselves, calling out "Police" in a voice slightly louder than might be used in conversation. They heard no sounds and saw no lights inside, and after 15 seconds they forced the screen door with a crow bar and then walked across the porch to the front door. They knocked there three times, again called out "Police" at the same volume, and waited for a response. Still there was none, and after 20 or 30 seconds more the lead officer gave the go-ahead and a two-man battering ram smashed through the front door. All of this, from the arrival at the screen door to the ram through the locked front door, took more than a minute but less than two.

Inside, just a foot or two away from the front door, the police found a woman in a nightgown and a robe, sitting up, awake, on a couch where she apparently had been sleeping; and in the next room, the dining room, they found Leichtnam, on his feet and zipping up his trousers. These two, and a third woman in a back bedroom, were restrained by some of the officers while the others searched the duplex. In a closet in Leichtnam's bedroom the searching officers found cocaine, paraphernalia used to cut it, prepare it and weigh it and a modified .22 caliber Mossberg rifle in a pool cue case. In other parts of the house they found a pager, a drug ledger, almost $2900 in cash and two handguns.

These are the facts essentially as the magistrate who heard the testimony at the suppression hearing found them. Leichtnam does not challenge them, as recited here, but says that they indicate noncompliance by the Waukesha police with the federal "knock and announce" statute, 18 U.S.C. § 3109.

By its terms, section 3109 provides that an officer "may break open ... a house ... to execute a search warrant if, after notice of his authority and purpose, he is refused admittance...." The wording of the statute is deceptive. Section 3109 is a limitation on the authority of law enforcement officers to use force to gain entry and not simply a codification of some of the instances when they "may" do so. United States v. Salter, 815 F.2d 1150, 1151-52 (7th Cir.1987). In effect, the word "if" in the statute means "only if." The question here is "Only if what ?"

The police who searched Leichtnam's home gave notice of their authority but not of their purpose. They identified themselves by calling out "Police." They did not say "Police. We have a warrant." Was that enough? Leichtnam argues that it wasn't, that section 3109 specifically states that the police may force a door only if they have given express notice of both their "authority and purpose," not just one or the other, and that the Supreme Court itself took precisely that view in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

In that case, two officers knocked on William Miller's apartment door at 3:45 a.m. When Miller asked "Who's there?", the officers replied, in a low voice, "Police." Miller opened the door a crack, without undoing the chain, and asked the two officers what they were doing. Then, before either one answered, Miller started to close the door on the officers, who may have been in plain clothes and may not have flashed their badges. But before he managed to get the door shut, the officers reached in, ripped the chain off and pushed their way in. Miller was arrested, tried and convicted on drug charges. The Supreme Court reversed his conviction, holding that his arrest was unlawful and that the evidence the police seized after breaking into his apartment should have been suppressed.

Arguably, the decision in Miller rests on the Court's conclusion that the officers who knocked on Miller's door not only did not state what they wanted but also did not sufficiently explain who they were. The officers in Miller do not appear to have been in uniform and their announcement, "Police," was spoken in a voice so low that Miller may not have heard it. See 357 U.S. at 311, 78 S.Ct. at 1196. Cf. United States v. Manning, 448 F.2d 992, 1001 (2d Cir.1971) (en banc). Miller does not, in any event, hold that an announcement of purpose as well as authority must always precede an entry by force. The opinion in Miller itself suggests at least one exception to that rigid rule, where announcing purpose would be a "useless gesture" because the occupants already certainly know why the officers are knocking. 357 U.S. at 310, 78 S.Ct. at 1196. And both the "useless gesture" exception and another, for "exigent circumstances," are now firmly ensconced in the case law. See United States v. One Parcel of Real Property, 873 F.2d 7, 9-10 (1st Cir.1989); United States v. James, 764 F.2d 885, 888 (D.C.Cir.1985); United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984); United States v. Wysong, 528 F.2d 345 (9th Cir.1976); United States v. Wylie, 462 F.2d 1178 (D.C.Cir.1972); Manning, supra, 448 F.2d 992; Jackson v. United States, 354 F.2d 980 (1st Cir.1965); 21 A.L.R.Fed. 820 § 9 (1974) and Supp.1990 (collecting cases). See also Sabbath v. United States, 391 U.S. 585, 591 & n. 8, 88 S.Ct. 1755, 1759 & n. 8, 20 L.Ed.2d 828 (1968). Neither Miller nor subsequent cases interpret section 3109 as a bright line rule closed to any exceptions.

Miller, moreover, is not this case. Miller answered his door when the police knocked and asked what they were doing. Leichtnam did not answer the door when the police knocked and identified themselves here. Nor did he shout out "Hold on, coming" or "What do you want?" So far as the Waukesha officers were concerned, either no one was home at Leichtnam's, anyone inside was asleep (which was likely at six o'clock in the morning) or their announcement was being ignored. The police saw no lights and heard no voices and no movement: the magistrate's opinion recommending denial of Leichtnam's motion to suppress is explicit on that point. To insist under such circumstances that the police must announce that they are executing a warrant (though that is what they should do), having already identified themselves as law enforcement officers and drawn no response, would rarely serve any useful purpose, and we do not think that section 3109 requires it. Cf. One Parcel Of Real Property, supra, 873 F.2d at 9-10; Manning, supra, 448 F.2d at 1000-02; Bosley v. United States, 426 F.2d 1257, 1263 (D.C.Cir.1970).

There are, undoubtedly, people who will open the door for officers who state they have a warrant but not for officers who don't, which may account for section 3109's reference to purpose in addition to authority. And when it is clear that someone is at home, officers must explain not just who they are but also why they are there. Miller is that case. But where, as in this case, officers have knocked and announced "Police," with no answer whatsoever, and there are no signs that anyone is home, section 3109 (simply codifying, as it does, common law rules) may be complied with, in spirit at least, even if the officers neglect to state what their business is. See In the Case of Richard Curtis, Fost. 135, 168 Eng.Rep. 76 (1756) ("[N]o precise form of words is required ... It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority.").

We said "may" be complied with, and the qualification is an important one. A knock and announcement must be loud enough to be heard, and it must be followed by a pause long enough for someone to answer or come to the door. The police must be "refused admittance." That however, is not a problem here. After a suppression hearing, the magistrate found that the Waukesha police who knocked on Leichtnam's door spoke in a voice "slightly above conversational level" when they called out "Police," which he said was loud enough, and his recommendation was accepted by the district judge. Having heard testimony on the subject, the magistrate was in a better position to evaluate the situation than we are, and Leichtnam has not called our attention to anything which persuades us that the magistrate's conclusion lacked a substantial basis. The magistrate also found that the police waited twenty to thirty seconds after knocking on the front door before ramming through it. That, however, was more than a minute after the officers had first knocked on the screen door and long enough, given the racket five officers must have made prying open the screen door and marching across the porch, for them to reasonably conclude that they'd been refused admittance. Cf. United States v. DeLutis, 722 F.2d 902, 908-09 (1st Cir.1983) (20 seconds) and the cases cited in that opinion. Everyone in Leichtnam's house was apparently aware that the police had been standing outside knocking and wanted in; they were simply ignoring the officers. Though no one inside made any sound or...

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