U.S. v. Nielson, 04-3424.

Citation415 F.3d 1195
Decision Date21 July 2005
Docket NumberNo. 04-3424.,04-3424.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Lawrence D. NIELSON, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Patty Merkamp Stemler, Chief, Criminal Appellate Section, United States Department of Justice, Washington D.C. (Eric F. Melgren, United States Attorney, District of Kansas and Gregory G. Hough, Assistant United States Attorney, District of Kansas, with her on the briefs), for Plaintiff-Appellant.

Kirk C. Redmond, Federal Public Defender, Topeka, Kansas (David J. Phillips, Federal Public Defender and Ronald E. Wurtz, Assistant Federal Public Defender for the District of Kansas, Topeka, Kansas on the brief), for Defendant-Appellee.

Before SEYMOUR, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

We must decide whether law enforcement officers violated Lawrence D. Nielson's Fourth Amendment rights when they executed a search warrant that authorized them to enter his home without complying with the Fourth Amendment's knock and announce requirement. Finding under the totality of the circumstances that officers were obligated to knock and announce prior to entering, the district court suppressed evidence seized during the search. Because we take the district court's view that law enforcement officers failed to demonstrate that they had an objectively reasonable suspicion that knocking and announcing would be dangerous or futile, we AFFIRM.

I

Law enforcement officials received an anonymous Crime Stoppers report that a person named Danny Mills or Danny Nielson possessed an automatic weapon kept in the loft in his garage and possessed narcotics in a work bench in the garage. Detective Eric Coffman, who is with the Junction City/Geary County Drug Task Force, determined that Nielson resided at an address matching that given by the tip. Coffman determined that Nielson had previously been arrested in 1999 for possession of a firearm by a convicted felon and had pled no contest to misdemeanor possession of marijuana. Relying on the tip and the circumstances of the 1999 search, he sought a search warrant authorizing police officers to search the residence without complying with the Fourth Amendment's "knock and announce" requirement. Finding that probable cause existed to support the search warrant with a "no-knock" exemption, a Geary County district judge signed the warrant granting authority to the police to search the home of Nielson and Caroline Vigil.

In executing the warrant the following morning at 4:45 a.m., police found Nielson, unclad, and Vigil, clad in a bathrobe, in a bedroom. A loaded .45 caliber handgun was found on the floor next to their bed, knives were on the night stand, and seven other firearms were recovered from a closet safe, including assault rifles. In the garage they found 25-millimeter military rounds, and an M21 artillery simulator. Detectives also seized small amounts of marijuana and smoking devices found in the garage workbench and bedroom. Both Nielson and Vigil were arrested.

In support of the application for a no-knock warrant, Detective Coffman provided an affidavit reciting three facts to establish probable cause for the search and to support reasonable suspicion for an exemption to the knock and announce requirement. First, police conducted a search of Nielson's home pursuant to a search warrant four years earlier. When executing the 1999 search, a loaded gun was found on top of a laundry basket outside a master bedroom, although both Nielson and Vigil were located between the kitchen and living room. That search uncovered five weapons and marijuana which resulted in Nielson being charged with possession of a firearm by a convicted felon and with misdemeanor possession of marijuana. Second, police received a Crime Stoppers anonymous report in August 2003 that Nielson possessed an automatic weapon and narcotics which were located in the garage. Third, detectives searched Nielson's garbage which revealed marijuana seeds, and "five round cloth patches" which they believed to have been used to clean firearms. In his affidavit, Coffman therefore requested "a no-knock search warrant for officer's safety based on Mr. Nielson's past history of possessing firearms and the potential for violence."

Before the district court, Nielson sought to suppress the evidence seized pursuant to the search, arguing that executing the search at 4:45 a.m. without knocking and announcing violated his constitutional rights. At the suppression hearing, Detective Coffman testified that officers were concerned that Nielson and Vigil might attempt to arm themselves if police knocked and announced. Officers determined that the garage where the Crime Stoppers tip said an automatic weapon and marijuana were located was connected to the house, but they did not know if there was an interior passageway between the garage and the house. Regarding the search more than four years prior, detectives testified that placing a gun on a laundry basket was unusual, and speculated that Nielson had handled the gun shortly before police entered, though Nielson did not resist and did not threaten violence. Moreover, police noted that small amounts of marijuana for personal use are easily destroyed by flushing. Police thus feared both violence and destruction of evidence.

After hearing this testimony, the district court concluded that it was clear that the officers were obligated to knock and announce before entering Nielson's home. The district court found that the facts presented to support reasonable suspicion fell far short of providing reasons to believe Nielson would be violent or attempt to destroy evidence when he had exhibited no prior violent behavior and when he had not attempted to destroy evidence during the 1999 search. Finding that Tenth Circuit precedent clearly established that Detective Coffman's information was insufficient to support a no-knock execution to the search warrant, the district court refused to apply the good faith doctrine under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and granted Nielson's motion to suppress the evidence obtained during the search. The United States now appeals.

II

On appeal from a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous. United States v. Moore, 91 F.3d 96, 97 (10th Cir. 1996). When reviewing factual findings in the totality of the circumstances, we view the evidence in the light most favorable to the prevailing party. Id. Because they are questions of law, we review de novo the reasonableness of a search and seizure under the Fourth Amendment, as well as the district court's determinations with regard to exigent circumstances. United States v. Dahlman, 13 F.3d 1391, 1398 (10th Cir. 1993).

We must begin any examination of Fourth Amendment limitations on no-knock entries with two Supreme Court cases. The first, Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), held that the common-law knock and announce principle forms part of the Fourth Amendment reasonableness inquiry. Tracing deep into the English Common law the history of the principle that a person's house is "his castle of defence and asylum," 3 W. Blackstone, Commentaries 288, the Supreme Court concluded that the prohibition against the sovereign's breaking down doors without first knocking and announcing was "woven quickly into the fabric of early American law." Id. at 932-933, 115 S.Ct. 1914; see also, Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) ("The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application."). Not only is it part of our common law heritage, but because the reasonableness of a search under the Fourth Amendment may depend in part on the manner in which the search is executed, the Court reasoned: "[W]e have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure." Wilson, 514 U.S. at 934, 115 S.Ct. 1914. The Court was quick to note, however, that inquiry into the reasonableness of an unannounced entry must be flexible. Id. at 934, 115 S.Ct. 1914 ("The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.").

In the second case, Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Court struck down the Wisconsin Supreme Court's conclusion that the knock and announce requirement did not apply to felony drug cases because as a category they all involved a high risk of harm to police officers and a threat of disposal of drugs. Under the flexible approach announced in Wilson, the Court explained that "the knock-and-announce requirement could 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 (quotation omitted). Before law enforcement officers may enter a dwelling without complying with the knock and announce requirement, they "must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394, 117 S.Ct. 1416. However, an officer must have an objectively reasonable belief, and may not rely on subjective factors or hunches. See United States v. Maden, 64 F.3d 1505, 1509 (10th Cir.1995); United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989) (examining ...

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