U.S. v. Mitchell

• Decision Date: 11 February 1986
• Docket Number: No. 84-1396,84-1396
• Citation: 783 F.2d 971
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bennie MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 971

783 F.2d 971

UNITED STATES of America, Plaintiff-Appellee, v. Bennie MITCHELL, Defendant-Appellant.

No. 84-1396.

United States Court of Appeals, Tenth Circuit.

Feb. 11, 1986.

James F. Robinson, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on brief), Oklahoma City, Okl., for plaintiff-appellee.

Mark A. Lapidus, Denver, Colo., for defendant-appellant.

Before SEYMOUR and McWILLIAMS, Circuit Judges, and WINDER, District Judge ^*.

WINDER, District Judge.

The appellant, Bennie Mitchell, was convicted after jury trial of one count of possession of Phencyclidine (PCP) with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The appellant contends that the trial court committed error in not suppressing and excluding evidence allegedly obtained as the result of an illegal search and seizure.

On November 29, 1983 officers from the Oklahoma City Police Department, acting with an undercover informant, purchased two cigarettes dipped in PCP at two houses in Oklahoma City. Each transaction took place in less than two minutes time. The houses were apparently residences that were fifty to seventy-five yards apart with an open field between the houses. The police, three hours later, obtained from a state judge search warrants for the premises. The police divided up into two teams and simultaneously executed the warrants at each house.

The appellant was on the premises of one of the houses, and in the course of the search a small bottle of PCP was taken from the appellant's person.

Prior to trial appellant filed a motion to suppress the PCP contending it was illegally seized from his person. A memorandum was filed in support of appellant's motion. The memorandum raised only the question of whether the officers executing the warrant at the premises, where the appellant was located, violated the appellant's rights by the improper execution of the warrant by not giving adequate warning before breaking and entering the premises. The memorandum addressed state and federal statutes and decisions on the notice required before executing a search warrant and contended the warrant in this case was illegally executed. The appellant makes the same claim before this court, but in addition, contends that the search of his person, during which the PCP was found, was also illegal.

The trial court held a hearing on the appellant's motion to suppress. The only witness to testify for the government was Officer Clifford Lee of the Oklahoma City Police Department. He testified that after obtaining the search warrant he and other officers approached the premises where appellant was present. Officer Lee was in charge. He stated he knocked on the door and yelled "Police. We have a search warrant." He waited a few seconds, three to five seconds, and no one answered the door. He heard sounds of people moving inside the house. The sounds suggested the occupants were not moving towards the door. Officer Lee and the other officers then broke open the door and entered. The door had been secured with a metal rod. As the officers entered people were moving back towards the kitchen area to the rear of the premises. Eventually appellant was searched by another officer. Officer Lee did not observe the search.

John Rogers testified for the appellant that he was on the premises at the time of the entry and that he heard nothing prior to the officers' entry. He claimed the only noise he heard was the noise of the officer's entry.

The trial judge made findings, based on the evidence at the suppression hearing, that the police entered with a valid warrant, that prior to entry they announced their identity and the fact that they were in possession of a search warrant, that the police received no response and heard movements leading the police to believe the persons inside were moving away from the door, at which point the police entered. The Court also concluded the entry was "under exigent circumstances" especially because of the "easily disposable nature of the contraband ..." The trial court denied the motion to suppress. Thereafter the Court made written findings to the same effect. The Court concluded:

"In view of the Detective Lea's (sic) announcement, the sounds he heard, and the readily disposable nature of the contraband named in the warrant, the entry made by Detective Lea (sic) was permissible and the search constituted a valid execution of a valid search warrant."

The appellant contends the entry violated 22 Okla.Stat. Sec. 1228. ¹ However, we need not consider whether the Oklahoma statute was satisfied or not, although the trial court's findings would appear to justify a conclusion that the officers' conduct was compatible with the interpretation given to the statute by the Oklahoma courts. c.f. Davis v. State, 560 P.2d 1051 (Okla.Cr.1977). The issue in this case is one under the Fourth Amendment and the exclusion of evidence would only be warranted if there were a violation of the Constitution of the United States. ² Although in Miller v. United States, 357 U.S. 301 305, 78 S.Ct. 1190, 1193, 2 L.Ed.2d 1332 (1950) the Supreme Court did reference local law as relevant to the arrest authority of state police officers making an arrest for violation of a federal law, the court has since referred to the constitutional dimension of knock and announce requirements. In, Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) the Supreme Court noted the relevant federal statute, 18 U.S.C. Sec. 3109, on the use of force before entering a home to execute a search warrant was a codification of the traditional Anglo-American rule and referred to it as embodying "fundamental values" Id. p. 589, 88 S.Ct. at p. 1758. In, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), where state officers entered premises to search for narcotics, the Court said that "admissibility is governed by constitutional standards." Id. p. 39, 83 S.Ct. at p. 1632-33. The Court expressly recognized an exception to the notice requirements for exigent circumstances and this position was suggested as proper under appropriate circumstances for federal officers acting under 18 U.S.C. Sec. 3109. The standard for state officers is therefore one of reasonableness under the Fourth Amendment. United States v. Valenzuela, 596 F.2d 824 (9th Cir.1979) cert. denied 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1070. In, United States v. Baker, 638 F.2d 198, 202 (10th Cir.1980) this court, in a similar situation to the facts of this case, said the question was one of whether the officers' conduct was reasonable under the Fourth Amendment. The case also arose in Oklahoma and the court observed:

"Appellants have not suggested that applicable state law places more restrictive constraints on officers executing a search warrant than does the Fourth Amendment. We therefore do not decide whether the evidence seized under this search warrant would properly have been suppressed had the state search that produced it failed to meet anymore demanding state standards."

In this case, the officers gave notice and announced the authority of the search warrant. Only after it became apparent that the movement of the occupants was not towards the door, and that exigent circumstances existed, did the officers break and enter. Under very similar facts in United States v. Baker, supra, this court upheld the entry:

While the record does suggest on the basis of one officer's testimony that the execution of the warrant may have been unlawful, it also contains testimony from another officer and a person who had been inside the residence that the officers did knock and announce their authority, whereupon they heard such scuffling from inside the residence as to constitute exigent circumstances that would justify immediate entry. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Clemons, 503 F.2d 486 (8th Cir.1974); United States v. Manning, 448 F.2d 992 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971). Under these circumstances, we conclude that there was enough evidence before the trial judge to satisfy him that the warrant was properly executed. 638 F.2d pp. 202-203.

See also United States v. Coffman, 638 F.2d 192 (10th Cir.1980); United States v. Remigio, 767 F.2d 730 (10th Cir.1985). Under the circumstances the trial court's finding in this case was proper and the entry to execute the warrant lawful.

Appellant also contends that during the execution of the search warrant, the appellant was improperly subjected to a "pat down" frisk and the eventual seizure from his person of the bottle of PCP. Appellant contends the police conduct violated his Fourth Amendment rights and was contrary to the decision of the United States Supreme Court in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra v. Illinois, supra, the Court held that a frisk by police executing a search warrant of patrons in a public bar and resultant seizure of contraband violated the Fourth Amendment absent justification for the frisk as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court found there was "no reasonable belief" the tavern patron was "armed and presently dangerous." 444 U.S. 90, 100 S.Ct. 341-42. The court stated that the mere presence of a person at the place of search does not justify the search of the person. ³ c.f. United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Appellant contends he was merely present on the premises and was unjustifiably subjected to a pat down search. This court has held, where the record has shown such conditions of a search, that evidence obtained from such a search must be suppressed. In, United States v. Ward, 682 F.2d 876 (10th Cir.1982) we held a search pursuant to a warrant for wagering materials could not justify a pat down search of a person on the premises.

Although...