U.S. v. Musa

• Decision Date: 24 October 2003
• Docket Number: No. 03-40061-01-JAR.,03-40061-01-JAR.
• Citation: 288 F.Supp.2d 1205
• Parties: UNITED STATES of America, Plaintiff, v. James Donald MUSA, Jr. Defendant.
• Court: U.S. District Court — District of Kansas

288 F.Supp.2d 1205

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

No. 03-40061-01-JAR.

United States District Court, D. Kansas.

October 24, 2003.

Ronald E. Wurtz, Office of Federal Public Defender, Topeka, KS, for Defendant.

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT'S MOTION TO SUPPRESS

ROBINSON, District Judge.

Defendant James Musa is charged in two counts with conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. This matter comes before the Court on Defendant's Motion to Suppress the evidence seized and any statement made in the night-time execution of a search warrant at his residence, during which entry was made without the officers first knocking and announcing their presence (Doc. 11). An evidentiary hearing was held on September 30, 2003, and the Court took the matter under advisement. The Court is now prepared to rule. For the reasons set forth in detail below, the Court grants Defendant's motion.

Facts

On December 3, 2002, at 3:05 p.m., a judge in the district court of Shawnee County, Kansas signed a search warrant for the residence of James Musa, finding probable cause to believe that methamphetamine or other controlled substances and evidence of the trafficking of controlled substances would be found there. The affiant, Officer Bruce Voigt, did not request a "no knock" warrant, and the judicial officer did not expressly authorize a "no knock" warrant.¹

The search warrant was executed on December 5, 2002, at 1:22 a.m. by Topeka police officers, led by Officer Voigt. Officers executed the warrant by breaking the front door with a battering ram, and simultaneously announcing their presence. They neither knocked nor announced their presence before entering by force.

At the suppression hearing, Officer Voigt, who has been a narcotics officer for 10 of the 16 years he has served as a Topeka police officer, testified that his department prefers to execute search warrants after dark, so that the search team's approach will not be observed by the targets of the search. He further testified that although he prefers to execute search warrants by knock and announce, when circumstances dictate, he executes search warrants without first knocking and announcing. Officer Voigt testified that it is not his practice to apply to the judicial officer for a "no knock" warrant; nor would he apply, because the manner of executing search warrants is a "tactical" decision best left to the officers executing the warrant.

Officer Voigt's decision to execute the search warrant without first knocking and announcing was based on the following facts, which were not only known to Voigt at the time he executed the search warrant, but also when he obtained the search warrant. First, the defendant was currently on supervised release after serving a prison sentence on a 2001 federal conviction for being a felon in possession of firearm. The defendant had been released from prison, and his term of supervised release had commenced in September 2002, just two and one-half months before the search warrant was obtained.

Second, based on a "Triple I" or "NCIC" check, the Defendant's criminal history included other arrests and convictions, which Voigt characterized as violent crimes. The Defendant had a 1989 felony auto theft conviction and a 1997 felony conviction for marijuana possession. In addition, from 1998 through 1999 the defendant had five arrests for a variety of charges, to wit: (1) 1998 arrest for domestic battery, obstruction and terroristic threat; (2) 1998 arrest for domestic battery, obstruction, possession of drug paraphernalia and battery on a law enforcement officer; (3) 1999 arrest for domestic battery and unlawful restraint; (4) 1999 arrest for domestic battery; (5) and 1999 arrest for possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, and a traffic violation. Officer Voigt testified that he did not investigate the circumstances or disposition of the previous arrests.

Third, a confidential informant whom Officer Voigt had utilized since November 2002, told Voigt that the Defendant had stated that he was on federal "parole" and did not want to be caught with methamphetamine in the house during an in-home visit by his parole officer. Officer Voigt testified that this caused him concern about destruction of evidence.

In addition, Officer Voigt testified that his years as a narcotics officer have demonstrated that firearms are tools of the trade of drug traffickers. But, Voigt testified that he had no information from the confidential informant or otherwise, that the Defendant was currently in possession of any firearms. In fact, Voigt testified that officers had no information about what was in the house, other than information from the confidential informant that the drugs were sometimes kept in the house, and sometimes kept in the glove box of the car.

When the eight-person search team arrived at the Defendant's house in the early morning hours of December 5, 2002, they observed that there was only one light on, and it appeared to be in the living room on the front side of the house. The officers did not try to determine whether anyone was awake. Officer Voigt had information that the Defendant's girlfriend might be there with the Defendant. Upon execution of the search warrant, officers seized approximately 18 grams of methamphetamine.

Discussion

The issue in this case is straight-forward. Defendant does not contest the validity of the search warrant, but rather, the means of its execution. Where, as here, a court examines the actions of state law enforcement officers during the execution of a search warrant, it must evaluate those actions in light of the Fourth Amendment's reasonableness requirement.² Absent exigent circumstances, it is unreasonable for officers to enter a dwelling without first knocking and announcing their presence.³ The government bears the burden of establishing exigency.⁴

The government argues that the totality of circumstances and facts known to the officers at the time of the execution of the search warrant satisfies the Fourth Amendment reasonableness standard for execution without knocking and announcing, because the Defendant had a criminal history involving crimes of violence, a history of illegally possessing firearms, and because Defendant was on supervised release, he had incentive to dispose of the evidence. The government urges that these facts are distinguishable from those in cases cited by the Defendant, noting that someone on supervised release or parole status has a diminished expectation of privacy for purposes of Fourth Amendment analysis.

Defendant argues that the officers lacked any reasonable basis to execute the search warrant without knocking and announcing. Admittedly, the officers had no current information that the Defendant had or possessed firearms. Defendant argues that the principles in the seminal case of Wilson v. Arkansas⁵ have been violated in that the government has failed its burden of proving exigent circumstances existed at the time the search warrant was executed. Defendant contends that Officer Voigt's admission that the officers knew nothing about what was in the Defendant's house does not prove exigency or demonstrate that the Defendant currently presented a risk of violence. Defendant further argues that there was not a sufficient showing that a likelihood of destruction of evidence was exigent, for officers admittedly did not know whether the drugs would be in the house or in Defendant's car.

As a threshold matter, the Court addresses the government's claim that a defendant on supervised release, probation or parole has a diminished expectation of privacy under the Fourth Amendment. The Supreme Court has held that a probation agreement containing a provision allowing the search of a probationer's residence diminishes the probationer's reasonable expectation of privacy in his residence and thus, a warrant is not required in a probation search.⁶ A probationer's home, however, remains protected by the Fourth Amendment against unreasonable searches.⁷ The government does not cite, nor did the Court find, cases that extend a probationer's diminished expectation of privacy to elimination of the knock and announce requirement, and the Court declines to do so in this case.

The knock and announce requirement under federal law is codified in 18 U.S.C. § 3109. This statute provides that a law enforcement officer may:

break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.

The warrant in this case was issued by a state court judge and executed by Topeka city police officers. Under these circumstances stances, § 3109 does not directly apply. But, the Supreme Court has incorporated the requirements of the statute into the Fourth Amendment's reasonableness doctrine.⁸ Thus, the court should apply standards similar to those of § 3109.⁹

As determined in Richards v. Wisconsin, the fact that this was a drug investigation does not by itself justify a no-knock approach, although such investigations "may frequently present circumstances warranting a no-knock entry."¹⁰ "Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement."¹¹

The circumstances which justify a no-knock entry should provide a substantial justification. In Richards, the Supreme Court noted:

While it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly...