U.S. v. Peterson

• Decision Date: 30 December 2003
• Docket Number: No. 03-30025.,03-30025.
• Citation: 353 F.3d 1045
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Dale PETERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.3d 1045

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Dale PETERSON, Defendant-Appellant.

No. 03-30025.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2003.

Filed December 30, 2003.

Robert Gombiner, Assistant Federal Public Defender, Seattle, Washington, for defendant-appellant Thomas Dale Peterson.

Helen J. Brunner, Assistant United States Attorney, Seattle, Washington, Ilene J.K. Miller, Assistant United States Attorney, Tacoma, Washington, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Western District of Washington, Jack E. Tanner, Senior United States District Judge, Presiding. D.C. No. CR-02-05529-JET.

Before: Andrew J. KLEINFELD, Ronald M. GOULD, and Richard C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

Thomas Dale Peterson asserts that a police SWAT team failed to fully comply with the knock-and-announce requirement prior to executing a warrant to search his residence. He appeals the denial of his motion to suppress the evidence found. Because the SWAT team's entry in this case violated neither the Fourth Amendment nor 18 U.S.C. § 3109, we affirm.

I

In late 2001, Vancouver, Washington, police officers, acting in cooperation with police in nearby Portland, Oregon, learned that Peterson was involved in an identity theft operation and other criminal conduct. This information came from three sources who supplied probable cause for issuance of the search warrant. The first source told police that Peterson and an associate named Tai Watson had been stealing mail in Portland and Vancouver.¹ According to this source, Peterson possessed a ring of duplicate U.S. Postal Service mailbox keys, and the floor of Peterson's room in his Vancouver residence was littered with stolen mail. The source also told police that Watson possessed a black SKS assault rifle and some two-part (binary) plastic explosives.²

According to the first source, after Watson was arrested he phoned from jail and requested that the source transfer the explosives (which Watson and the source referred to as "the bin Laden") from Watson's apartment to a second apartment in Beaverton, Oregon. Based on this information, the police sought and received consent to search the second apartment, where they seized approximately two pounds of Kinepak binary explosives.

A second source further informed police that Peterson was a "master" forger and identity thief who used a computer to produce fraudulent checks and false identification. This individual also reported that Peterson used methamphetamine and heroin and that Watson had brought $3,000 worth of explosives to Peterson's residence in early November 2001. The second source supplied police with a map to Peterson's residence on 4th Way in Vancouver.

On December 5, 2001, a third source confirmed to police that Peterson lived on 4th Way and that he used a computer in his bedroom to create fake checks and identification. This source further reported that Peterson had about 200 pieces of stolen mail strewn about his room, and that within the previous week the source had seen Peterson in possession of blasting caps and pink liquid explosives. Specifically, this source reported that the explosives and blasting caps were hidden in Peterson's bedroom closet and that Peterson had claimed "if we want to blow some shit up we can at any time."

In light of this information, Vancouver police sought and received a state warrant to search Peterson's residence.³ Because of the suspected presence of explosives, police commanders considered the execution of the search warrant to be high-risk. Accordingly, they decided to seek assistance from officers specially trained and equipped for such duties, and recruited the Southwest Washington Regional SWAT team to serve the warrant.

In preparation for this operation, the SWAT team held a pre-raid briefing at 7:00 p.m. on December 5, 2001. The team was told that Peterson's house would most likely contain both explosives and items pertaining to identity theft and check fraud, including many pieces of stolen mail. The team was also informed that Peterson and others at the residence were suspected of drug use. Although the team was told there were no known firearms at the location, police knew that Peterson had an outstanding Oregon arrest warrant for carrying a concealed weapon without a permit. Continuing surveillance during the briefing session reported that at least three to four people were then inside Peterson's residence.

Just after 8:00 p.m., the SWAT team deployed to Peterson's residence. The team members wore helmets and raid clothing clearly labeled "POLICE" in large reflective letters. Officers surrounded the house and closed off traffic in the neighborhood. An ambulance was positioned nearby in case of need. The main entry team proceeded to the front door, led by Corporal Lobdell. The team members began taking their final positions, although they were not yet ready to knock and announce their identity and intentions.

What happened next was the subject of disputed testimony at the evidentiary hearing on Peterson's motion to suppress. However, in response to the government's request for a factual finding at the close of the hearing, the district court expressly credited Lobdell's version of the events. This finding was not clearly erroneous. Accordingly, we adopt Lobdell's version of the facts.

According to Corporal Lobdell, just before he was ready to knock, someone inside the house — later identified as Guy Edwards, the boyfriend of Peterson's housemate — suddenly opened the front door. According to Edwards's testimony, he heard noises outside and was checking for a possible prowler when he surprised the police in the final throes of staging for their entry. Edwards, who admitted at the hearing that he recognized the group on the porch as police officers, immediately attempted to close the door. Lobdell responded by shouting "Police, with a search warrant;" he forced the door open, and led the SWAT team inside. Virtually simultaneously, other officers on either side of the house broke windows to gain entry. In the course of breaching the house, the SWAT team threw inside three noise flash distraction devices (also called "stun grenades"). The occupants were swiftly subdued and the police seized a quantity of binary explosives, six blasting caps, 5.8 grams of methamphetamine, a quantity of tar heroin, over 1000 pieces of stolen mail, more than 20 fake IDs, illegal duplicates of mailbox keys, a laminator, a credit card imprinting machine, counterfeit and forged checks, and $10,500 in cash.

The district court denied Peterson's motion to suppress these items as the fruits of an illegal search. Peterson entered a conditional plea of guilty to one count of possession of stolen mail, one count of bank fraud, and one count of being a felon in possession of explosives. This plea, while conditioned on Peterson's right to appeal the denial of his motion to suppress, did not specifically reserve the right to claim on appeal that the police employed excessive force during execution of the search warrant.

The instant appeal ensued. There is no challenge to our jurisdiction under 28 U.S.C. § 1291.

II

We review de novo the district court's denial of Peterson's motion to suppress. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir.2003). The factual findings underlying the denial are reviewed for clear error. See id. Whether the SWAT team's failure to adhere to the knock-and-announce statute, 18 U.S.C. § 3109, was justified by exigent circumstances is a mixed question of fact and law that we review de novo. See United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir.1996).

A

Peterson first argues that the entry of his residence was unreasonable under the Fourth Amendment. The district court correctly rejected this claim.

In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court instructed that a "no-knock" entry is constitutionally permissible in three situations: when officers "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be [1] dangerous or [2] futile, or that it would [3] inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394, 117 S.Ct. 1416. Richards continues: "This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries." Id.; see also Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) ("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.").

The police in Richards obtained a warrant to search a suspect's motel room for drugs. A plainclothes officer knocked on the door and identified himself as a maintenance man. Leaving the chain on the door, Richards peeked out. Catching sight of a uniformed officer standing behind the plainclothes officer, Richards quickly closed the door. The officers forced their way into the room, apprehended Richards as he attempted to escape through a window, and discovered drugs hidden above ceiling tiles in the bathroom. See Richards, 520 U.S. at 388-89, 117 S.Ct. 1416. The Supreme Court, in a unanimous opinion, excused the officers' failure to knock and announce. The Court held that the entry did not violate the Fourth Amendment because "[o]nce the officers reasonably believed that Richards knew who they were ... it was reasonable for them to force entry immediately given the disposable nature of the drugs." Id. at 395, 117 S.Ct. 1416.

On the record before us, we see this case as closely...