U.S. v. Musa, 03-3343.

• Decision Date: 21 March 2005
• Docket Number: No. 03-3343.,03-3343.
• Citation: 401 F.3d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Donald MUSA, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

401 F.3d 1208

UNITED STATES of America, Plaintiff-Appellant, v. James Donald MUSA, Jr., Defendant-Appellee.

No. 03-3343.

United States Court of Appeals, Tenth Circuit.

March 21, 2005.

COPYRIGHT MATERIAL OMITTED

Eric F. Melgren, United States Attorney, Wichita, Kansas (John A. Drennan, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., with him on the briefs), for Plaintiff-Appellant.

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Topeka, KS, for Defendant-Appellee.

Before KELLY, HENRY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

The district court held that police officers lacked adequate grounds to conduct a no-knock entry of Defendant's home to execute a search warrant, and suppressed all evidence obtained during the search. The Government appeals. We exercise jurisdiction under 18 U.S.C. § 3731 and reverse.

"In reviewing a district court's ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the prevailing party and accept the district court's findings of fact unless they are clearly erroneous." United States v. Oliver, 363 F.3d 1061, 1065 (10th Cir.2004) (internal quotation marks omitted). "The ultimate question of whether a search and seizure was reasonable under the Fourth Amendment is a question of law that we review de novo." Id. (internal quotation marks omitted).

I. BACKGROUND

The facts in this case are largely undisputed. On December 3, 2002, Officer Bruce Voigt, a narcotics officer with the Topeka Police Department, obtained from the district court of Shawnee County, Kansas, a warrant to search Defendant's home for methamphetamine and items associated with the sale or use of methamphetamine, including weapons. The affidavit in support of the warrant stated that a reliable informant had reported seeing Defendant sell methamphetamine at least 15 times in the past month. According to the informant, Defendant's customers would contact him on his cell phone and Defendant would then deliver the methamphetamine to either the customer's residence or another location. The informant also said that Defendant commonly left the methamphetamine in the glove compartment of his car, even when he was at home. The informant explained that Defendant was on federal parole and did not want to get caught with the methamphetamine in his house during an in-home visit by his parole officer.

Included in the affidavit was a summary of Defendant's criminal record, which Officer Voigt had gathered from a national computer database. Defendant had a 1990 conviction for felony auto theft and a 1997 conviction for marijuana possession. In 1998 and 1999 Defendant had five other arrests: (1) for domestic battery, obstruction, and terroristic threat; (2) for domestic battery, obstruction, possession of drug paraphernalia, and battery on a law-enforcement officer; (3) for domestic battery and unlawful restraint; (4) for domestic battery; and (5) for possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, and traffic violations. In 2001 Defendant was convicted on a federal charge of felon in possession of a firearm; he was sentenced to 18 months' imprisonment and two years' supervised release. At the time this search warrant was issued, Defendant had been on supervised release for a little over two months.

As Defendant points out, Voigt did not investigate any of the facts surrounding these offenses, nor did he contact Defendant's parole officer for additional information. Also, at the time of the search the police had no specific information that Defendant possessed a firearm or booby trapped his residence. Nor did they have any information about what was inside the house.

At 1:22 a.m. on December 5, 2002, an eight-member search team led by Officer Voigt executed the search warrant. As the team approached Defendant's residence, they noticed a light on inside but did not attempt to determine what was going on in the house. Without knocking, they executed the search warrant by forcing the front door with a battering ram. Once inside, they announced their presence and ordered everyone to the ground.

In the house the officers found 18 grams of methamphetamine but no firearms or other weapons. Defendant was indicted for possession with intent to distribute 18 grams of methamphetamine and conspiracy to possess methamphetamine with intent to distribute it.

At the suppression hearing Voigt testified that he preferred to "do a knock and announce entry on every search warrant we possibly can." App. at 68. Here, however, there were several reasons for the tactical decision not to knock and announce. First, there was Defendant's criminal history. Voigt testified:

Going back over his past arrest record and convictions, he shows the potential for violence. And not only that, but his last arrest was for the federal gun charge. We also took in consideration during the raid briefing that he had just been released in September of this year, and less than two and a half months later we're doing a search warrant at his residence for selling methamphetamine and marijuana. To us, that shows a complete disregard for laws, or a person who is — possibly has the potential of having violence still.

Id. at 50. In addition, Voigt knew, based on his 10 years of experience as a narcotics officer, that firearms were tools of the drug trade. Moreover, he was concerned because of the lack of police knowledge of the inside of the residence. He testified that this lack of intelligence "itself is a dangerous situation because you don't know what to expect." Id. at 68.

The search team was also concerned about Defendant's destroying evidence. Voigt explained that this concern was based on the informant's statement that Defendant was on federal parole and did not want to be caught with methamphetamine in his house during a visit by his parole officer.

II. DISCUSSION

The United States Supreme Court has held that the "Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). But "the flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. (internal quotation marks omitted). "[T]he knock-and-announce requirement [can] give way `under circumstances presenting a threat of physical violence,' or `where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.'" Id. at 391, 117 S.Ct. 1416 (quoting Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)).

These justifications, however, must relate to the specific circumstances confronting the officers. Richards held that the Fourth Amendment did not allow Wisconsin's categorical authorization of no-knock entries in executing search warrants for felony-drug investigations. Id. at 387-88, 117 S.Ct. 1416. Acknowledging that such investigations frequently involve a threat of violence and the likelihood of destruction of evidence, id. at 391, 394, 117 S.Ct. 1416, the Court said that Wisconsin's blanket exception nevertheless improperly removed "from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case." Id. at 394, 117 S.Ct. 1416. The Court gave two reasons for rejecting an exception "based on the `culture' surrounding a general category of criminal behavior." Id. at 392, 117 S.Ct. 1416. One was that it would justify unnecessary no-knock entries:

First, the [Wisconsin] exception contains considerable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry. Wisconsin's blanket rule impermissibly insulates these cases from judicial review.

Id. at 393, 117 S.Ct. 1416. The other reason was that such blanket exceptions could eviscerate the knock-and-announce requirement:

A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable — albeit hypothetical — risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless.

Id. at 393-94, 117 S.Ct. 1416.

Thus, a reviewing court must "determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." Id. at 394, 117 S.Ct. 1416 (emphasis added). "In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would...