U.S. v. Mack
| Citation | 117 F.Supp.2d 935 |
| Decision Date | 14 September 2000 |
| Docket Number | Crim. Action No. 00-00248-01-CR-W-1. |
| Court | U.S. District Court — Western District of Missouri |
| Parties | UNITED STATES of America, Plaintiff, v. Eric L. MACK, Defendant. |
Mr. Abram McGull, II, Assistant United States Attorney, Kansas City, MO, for plaintiff.
Mr. Bruce Simon, Kansas City, MO, for defendant.
Magistrate Robert E. Larsen's Report and Recommendation to Deny Defendant's Motion to Suppress Evidence, dated August 23, 2000, is pending before the Court. Defendant Eric L. Mack has filed exceptions and objections. The United States did not file a reply.
The Court, after independent review of the record and applicable law, adopts the Magistrate's findings of fact and conclusions of law. Therefore, the Court finds that the evidence shall not be dismissed.
Accordingly, it is hereby
ORDERED that the Magistrate's proposed findings of fact and conclusions of law are adopted and incorporated herein by reference. It is further
ORDERED that the Magistrate's Report and Recommendation, filed August 23, 2000, shall be attached to and made part of this Order. It is further
ORDERED that Defendant Eric L. Mack's Motion to Suppress Evidence is DENIED.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Before the court is defendant's motion to suppress evidence1 on the ground that the no-knock provision in the search warrant is not supported by reasonable suspicion that knocking and announcing would be dangerous, futile, or destructive to the purpose of the investigation. I find that (1) the no-knock provision in the search warrant was supported by reasonable suspicion that knocking and announcing would be dangerous, futile, or destructive to the purpose of the investigation; and (2) even if the warrant had not provided for a no-knock entry, police were justified in executing the warrant without first knocking and announcing their purpose due to the exigent circumstances known at the time. Therefore, defendant's motion should be denied.
On July 12, 2000, a four-count superseding indictment was returned charging defendant with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); two counts of distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and one count of possession of firearms in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On June 30, 2000, defendant filed a motion to suppress evidence on the ground that the no-knock provision in the search warrant was not supported by reasonable suspicion (document number 18). On July 17, 2000, the government filed a response in opposition (document number 23) arguing that the no-knock entry was justified because (1) less than 24 hours earlier, a confidential informant had observed defendant with an assault weapon slung on his body, (2) the confidential informant observed another assault-type weapon on defendant's couch, (3) throughout the day of the execution of the search warrant, police observed numerous people entering and leaving the residence and knew there were at least six people in the residence and additional people lingering outside the residence, and (4) officers had conducted a computer check and learned that individuals who frequented the residence had convictions for aggravated assault and possession of a weapon.
A hearing was held before me on July 20, 2000. The government was represented by Assistant United States Attorney Abram McGull. The defendant was present represented by Bruce Simon. The government called Detective Gary Gibson and Officer Eric Benson, both of the Kansas City, Missouri, Police Department, as witnesses. In addition, the government offered a copy of the return on the search warrant as Plaintiff's Exhibit 1 and a copy of the search warrant as Plaintiff's Exhibit 2. Defendant called Detective Kevin Kilkenny of the Kansas City, Missouri, Police Department as a witness and offered Defendant's Exhibit 1, the affidavit in support of the search warrant, which was admitted.
On the basis of the evidence presented at the suppression hearing, I submit the following findings of fact:
1. On May 25, 2000, members of the Kansas City, Missouri, Police Department purchased cocaine from defendant with the help of a confidential informant (Tr. at 7-8, 45). On the basis of that purchase, officers applied for a search warrant on May 31, 2000, to search defendant's residence at 3221 Highland (Tr. at 9, 10, 44). The officers decided to seek a no-knock search warrant because of dangerous circumstances (Tr. at 33). Detective Kevin Kilkenny was the affiant but had no previous involvement with the investigation (Tr. at 50-51). Detective Cathy, who was involved in the drug buys, assisted Detective Kilkenny in generating the affidavit and search warrant (Tr. at 60).
2. At the time the warrant was sought, police had DRAGNET information that the residence was an illegal drug house (Tr. at 9). DRAGNET is a computer system listing reports by civilians or police officers who call to report drug activity (Tr. at 24, 52). In addition, they had computer information that the people who resided at that residence in the past had convictions for weapons violations and for assault (Tr. at 9, 25, 53). In cases where it is determined that there is no danger to the tactical team members or to citizens, the no-knock warrant is not sought (Tr. at 37). However, in this case because of the DRAGNET information, the no-knock provision was requested. The warrant was issued on May 31, 2000, authorizing the officers to dispense with the knock-and-announce requirement (Tr. at 10).
3. On June 7, 2000, one week after the search warrant was issued, another cocaine purchase was made again utilizing the confidential informant (Tr. at 10, 12, 44, 45). The confidential informant went to 3221 Highland, and defendant answered the door wearing an assault-type weapon attached to his torso (Tr. at 10-11, 12). Once inside the door, the informant observed another assault weapon on the couch (Tr. at 11). Defendant and the informant left 3221 Highland and traveled to another residence in the 5700 block of Mersington where the informant purchased crack cocaine from defendant (Tr. at 11).
4. On June 8, 2000, after the most recent undercover purchase of crack cocaine from defendant, officers gathered for a briefing before executing the search warrant which had been issued on May 31, 2000 (Tr. at 12, 18). This warrant was determined to be a "high risk" search warrant because of the weapons that had been observed and the computer information about the weapons violations and assault convictions of the residents (Tr. at 12-13, 64, 67). Detective Gary Gibson told the executing officers about defendant having answered the door with an assault weapon around his torso and he told them about the assault weapon observed on defendant's couch (Tr. at 13). Officer Benson, the point man, was concerned about these weapons because the bullets will go through the officers' bullet-proof vests (Tr. at 77). Detective Gibson also relayed information that had been gathered through surveillance (Tr. at 13). Through surveillance, which began at about 3:00 p.m., two hours before the warrant was executed, officers had seen numerous people coming and going through the front door of the house (Tr. at 13, 23). The house was in an older neighborhood where the homes were very close together and very close to the street and there was almost-constant foot traffic down the sidewalk in front of the house (Tr. at 14). All of this information led Detective Gibson to conclude that it was a "high risk" warrant because of the potential danger to the police officers and to innocent bystanders (Tr. at 14, 37).
5. As the executing officers pulled up in front of the house,2 an individual was observed walking from the side of the house to the front yard (Tr. at 14, 64-65). That person was arrested, then Officer Eric Benson approached the front of the house with the tactical team members (Tr. at 14-15, 65). The front door was open, but the screen door was closed (Tr. at 78). Officer Benson shouted, "Police, Search Warrant" and then opened the screen door (Tr. at 65). He entered the residence and again announced "Police, Search Warrant" (Tr. at 65, 66). Eight people were found inside the residence, and three of those were arrested (Tr. at 40, 65, 66). The executing officers recovered seven firearms, two of which were assault-type rifles, from the residence during the search (Tr. at 41, 79).
6. Detective Gibson, who has been involved with hundreds of search warrants, has seen warrants issued during the last year and a half that did not have a noknock provision (Tr. at 16, 23, 35). Officer Benson, who has worked with the tactical team in the narcotics unit for three years, has seen search warrants without the no-knock provision3 (Tr. at 69, 71, 73). Officer Benson has been involved in the execution of about 100 search warrants during the past year (Tr. at 73).
7. When a warrant is being prepared, the computer provides a form with the no-knock language (Tr. at 43, 56). If the no-knock provision will not be sought, that language is deleted before the form is printed out (Tr. at 43). If a no-knock warrant is sought, the affidavit must contain information which would justify the no-knock provision (Tr. at 44).
The sufficiency of a search warrant is in the first instance determined on the basis of the information before the issuing judge. United States v. Reivich, 793 F.2d 957, 959 (8th Cir.1986). On a motion to suppress, the reviewing court should not make a de novo determination of probable cause; rather, the decision to issue the warrant is to be upheld if supported by a substantial basis...
To continue reading
Request your trial
-
U.S. v. Scroggins, 03-2279.
...courts still had to ask whether the search triggered section 3109 to determine the appropriate standard. E.g., United States v. Mack, 117 F.Supp.2d 935, 941 (W.D.Mo.2000) ("[M]ust that evidence be excluded if the no-knock entry violated § 3109, a federal statute that is more restrictive tha......
-
Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants, 02-8
...issued by a Missouri judge on the grounds that it was fully compliant with [ 52] Missouri law and federal constitutional requirements. Id. at 942-43. As the Criminal Division points however, state courts are divided on the issue of whether judges or magistrates may issue no-knock warrants w......