U.S. v. Maden, 94-2260

• Decision Date: 07 September 1995
• Docket Number: No. 94-2260,94-2260
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Levone Ray MADEN; John Paul Wilbon; Geneva Gallegos, also known as Leann Rael, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1505

64 F.3d 1505

UNITED STATES of America, Plaintiff-Appellant, v. Levone Ray MADEN; John Paul Wilbon; Geneva Gallegos, also known as Leann Rael, Defendants-Appellees.

No. 94-2260.

United States Court of Appeals Tenth Circuit.

Sept. 7, 1995.

Rehearing Denied Oct. 12, 1995.

Richard A. Friedman, Attorney, Department of Justice, Washington, DC, (John J. Kelly, United States Attorney, Tara C. Neda Assistant United States Attorney, Albuquerque, NM, with him on the brief), for plaintiff-appellant.

Albert B. Lassen of Lassen & Jaffe, Albuquerque, NM, filed a brief for defendant-appellee Levone Ray Maden.

Teresa E. Storch, Assistant Federal Public Defender, Albuquerque, NM, for defendant-appellee Paul Wilbon.

Adam G. Kurtz, Albuquerque, NM, for defendant-appellee Geneva Gallegos.

Before TACHA, SETH, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

The government appeals the district court's suppression of evidence seized when Federal Bureau of Investigation ("FBI") agents entered the apartment of Defendants Levone Maden and Geneva Gallegos to execute an arrest warrant for Defendant Maden. The district court granted Defendants' motion to suppress on the grounds that the government had failed to demonstrate exigent circumstances to justify the FBI agents' decision not to comply with the knock and announce requirement of 18 U.S.C. Sec. 3109 when they entered Defendants' apartment using a passkey. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291, and determining in our review that exigent circumstances exist in the particular facts of this case, reverse.

On March 28, 1994, FBI Special Agent Gregory M. Kuntz received a telephone call in his Albuquerque, New Mexico office from an anonymous informant calling from Texas. The informant told Agent Kuntz that "Rolex" Maden, a drug dealer wanted in Texas, had a quantity of cocaine at his apartment on Academy Boulevard in Albuquerque. The informant gave Agent Kuntz "Rolex" Maden's apartment number and telephone number.

Agent Kuntz checked the name "Rolex" Maden and determined that it was an alias of Defendant Levone Maden. Further, Agent Kuntz learned that Defendant Maden, a convicted felon with an extensive criminal history, was subject to an outstanding arrest warrant in Texas. Agent Kuntz contacted FBI Special Agent Macaluso of the FBI Fugitive Task Force. Agent Macaluso informed Agent Kuntz that he was familiar with Defendant Maden and knew that a weapon had been taken from Defendant Maden's residence by an Albuquerque Police Officer in August 1993, but that he was not arrested at that time. Agent Macaluso also told Agent Kuntz that Texas authorities were unwilling to extradite Defendant Maden.

Agent Kuntz called Texas authorities to determine whether they would extradite Defendant Maden if the FBI Fugitive Task Force arrested him on the Texas warrant. While awaiting response from Texas, Agent Kuntz obtained a rap sheet on Defendant Maden from the Albuquerque Police Department, and determined the address of Defendant Maden's apartment using the telephone number supplied by the anonymous informant.

At approximately 4:30 p.m. that afternoon, Agent Kuntz, Agent Macaluso, another FBI agent, and Detective Rock Hart of the Albuquerque Police Department met at Defendant Maden's apartment complex. The FBI agents confirmed that the apartment number the anonymous informant gave Agent Kuntz was leased to a "Joe Maden" and obtained a passkey from the apartment manager.

Shortly after the FBI agents arrived at the apartment complex, two cars drove into the parking lot. Detective Hart identified one driver as Defendant Maden. He believed the other driver was Brian Berry, a wanted fugitive. Detective Hart was concerned that Defendant Maden recognized him as he drove by. Defendant Maden and the man suspected to be Brian Berry entered Maden's apartment.

At that time, the FBI agents received radio notice that the Texas Authorities had sent a teletype to the FBI offices seeking Defendant Maden's arrest and extradition. The FBI agents began surveillance of Defendant Maden's apartment and the cars driven by Maden and the man identified as Brian Berry. Four more FBI agents arrived, two who were part of the FBI Fugitive Task Force, and two who were members of a SWAT team trained to work in dangerous situations. Finally, Detective Brian Sallee of the Albuquerque Police Department arrived and with Detective Hart, briefed the FBI agents at the scene on their prior experience with Defendant Maden.

Detective Sallee informed the FBI agents that he had numerous contacts with Defendant Maden and had information that he had run a crack cocaine distribution operation known as the "Rolex" organization out of rooms he rented at a city motel. Detective Sallee also told the agents that he believed, based on an informant's report, that Defendant Maden had put a murder contract out on him two months earlier. Detective Sallee informed the agents that Defendant Maden's reported murder contract caused the Albuquerque Police Department to provide police protection to his family. Detective Hart informed the agents that he had seized a loaded semi-automatic hand gun from a motel room in which Defendant Maden was residing in March 1993. Detective Hart said that Defendant Maden acknowledged that the gun was his, but Detective Hart did not arrest him for a felon in possession of a firearm offense because he believed Defendant Maden might be of use as an informant.

By 5:30 p.m., the surveillance had revealed that a woman was in the apartment, in addition to Defendant Maden and the man believed to be Brian Berry. Based on the facts known to them, including the information relayed by Detectives Sallee and Hart of the Albuquerque Police Department, the FBI Fugitive Task Force members decided to make a no-knock, passkey entry into the apartment to arrest Defendant Maden in order to minimize the danger to the agents.

Using a cellular phone, one of the FBI agents telephoned Defendant Maden's apartment to divert one of the occupants. Simultaneously, Agent Macaluso used the passkey to open the apartment door, and the agents, wearing insignia identifying themselves as law enforcement personnel, entered the apartment, shouting, "police, police, hands on top of your head." When the FBI agents entered, Defendant Maden and Defendant Paul Wilbon (mistakenly identified as Brian Berry) were sitting in the living room and Defendant Gallegos was in the bedroom. The agents saw a large amount of crack cocaine in two plastic bags on top of a hutch in the dining room in plain view. The agents arrested Defendants, secured the apartment, and obtained a search warrant. The resulting search of the apartment revealed additional cocaine and a gun.

The government indicted Defendants for possession with intent to distribute more than fifty grams of crack cocaine, 21 U.S.C. Sec. 841(a). Defendants filed separate motions to suppress, contending, inter alia, that the agents' passkey entry of Defendants Maden's and Gallegos' apartment violated the knock and announce requirement of 18 U.S.C. Sec. 3109. As a result of the violation, Defendants argued that all evidence, including the crack cocaine found in plain view in the apartment, must be suppressed under the "fruit of the poisonous tree" doctrine.

The district court granted Defendants' motions to suppress. The court determined that in order to enter Defendants' apartment without first knocking and announcing their authority as required by 18 U.S.C. Sec. 3109, the agents had "to demonstrate with concrete, palpable facts that the defendant presents a danger to law enforcement officers in the context of resisting arrest with violence." ¹ Applying that standard, the district court concluded that the agents "did not subjectively believe that Levone Maden presented a danger to them in the context of resisting arrest with violence." Further, the district court found that the agents' belief that arresting Defendant Maden was potentially dangerous was not objectively reasonable because "prior encounters between Maden and law enforcement officers demonstrated that Maden did not have a propensity to use violence against law enforcement officers ... [and] Maden's complete lack of criminal history involving violent offenses." Thus, the district court found that the government had failed to support its decision to enter the apartment in violation of 18 U.S.C. Sec. 3109 with either a subjective belief or an objectively reasonable belief that Defendant Maden had a propensity to use violence based on concrete, palpable facts. Consequently, the district court granted Defendants' motions to suppress the evidence found in the apartment. This appeal followed.

On appeal, the government contends the district court erred in granting Defendants' motion to suppress. Specifically, the government argues that the district court applied the wrong legal standard to determine whether the agents' decision to dispense with the knock and announce requirement of 18 U.S.C. Sec. 3109 was justified. Applying the correct standard, the government asserts there were exigent circumstances sufficient to excuse the agents' noncompliance with Sec. 3109 because the agents had an objectively reasonable belief that there was an emergency situation based upon the particular facts of the case. We address the government's arguments in turn.

The government first contends that the district court erred in granting Defendants' motion to suppress because it applied the wrong legal standard when it determined that the government had failed to justify the FBI agents' decision to effect a no-knock passkey entry of the apartment. In its conclusions of law, the district court ruled that "[t]o invoke the 'physical peril to officer' exception [to Sec. 3109], the government must demonstrate with concrete, palpable facts that the defendant presents a danger to law enforcement officers in the context of resisting arrest...