U.S. v. Ramirez

• Decision Date: 02 August 1996
• Docket Number: No. 95-30158,95-30158
• Citation: 91 F.3d 1297
• Parties: 96 Cal. Daily Op. Serv. 5747, 96 Daily Journal D.A.R. 9407 UNITED STATES of America, Plaintiff-Appellant, v. Hernan RAMIREZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1297

91 F.3d 1297

96 Cal. Daily Op. Serv. 5747, 96 Daily Journal

D.A.R. 9407

UNITED STATES of America, Plaintiff-Appellant, v. Hernan RAMIREZ, Defendant-Appellee.

No. 95-30158.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1996.

Decided Aug. 2, 1996.

Stephen F. Peifer, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellant.

Michael R. Levine, Deputy Federal Public Defender, Portland, Oregon, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-94-00379-1-ALH.

Before: REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.

Opinion by Judge Fernandez; Dissent by Judge Kozinski.

FERNANDEZ, Circuit Judge:

Hernan Ramirez was indicted for being a felon in possession of firearms. 18 U.S.C. § 922(g)(1). The district court determined that the firearms had been discovered in connection with a violation of Ramirez's rights under the knock-and-announce law. 18 U.S.C. § 3109. It, therefore, suppressed the evidence of the weapons, and the United States appealed. We affirm.

BACKGROUND

On November 5, 1994, Ramirez and his wife awoke out of their peaceful slumbers to a series of unusual sounds, including the breaking of a window. Their child, too, awoke and started crying. They feared that they were being attacked by burglars. They were not, but by the end of the day Ramirez found himself in the custody of federal agents and charged with a crime--felon in possession of a firearm--which could lead to a lengthy period of incarceration. How he found himself in that predicament takes some telling.

Just three days before, Alan Laurence Shelby had knocked a deputy sheriff down and escaped from custody. He was then facing a term of federal imprisonment of 248 months and had declared that he would not do federal time. He had tried to escape before. One time he had struck an officer, kicked out a jail door, stolen an automobile, and rammed a police vehicle as he attempted to get away. Another time he had attempted to escape by using a rope made from torn bedsheets. At some time in the past he had also threatened to kill witnesses, and, it was said, he had tortured someone with a hammer.

The authorities were understandably anxious to get Shelby back, so they sent out a press release. Almost immediately, on November 3, 1994, a reliable confidential informant contacted Bureau of Alcohol, Tobacco and Firearms Special Agent George H. Kim In the afternoon of the next day, a warrant to arrest Shelby at Ramirez's home was obtained, and that led to the early morning raid on November 5, which brought Ramirez, but not Shelby, into the clutches of the law.

and told him that he had seen a person he believed to be Shelby at Ramirez's home the day before. Agent Kim and the informant then drove out to the area, and from some distance away they saw a person who was "very similar to" a photo of Shelby and noted that the man was wearing a blue jumpsuit and was clean-cut. That was the person the confidential informant had seen there the day before. Thereupon, a deputy marshal also went out, and from 1,000 yards away he saw a clean-cut man wearing blue sweats come out of the house. The marshal decided that the man was the person whom Agent Kim had seen.

Ramirez's fateful day unfolded in this way. In the predawn hours of November 5, Ramirez, his wife, and their three-year-old child were asleep in their abode. The main house had three bedrooms, a living-room, an activity room, and a kitchen which led into a small utility room, which, in turn, led into an attached garage. The informant, who said that Shelby was at the house, also "indicated there were supposed to be several guns in the garage." Apparently there were not, and apparently the informant had never seen them there. Nevertheless, that is what he had said.

At 6:15 a.m., 45 armed officers converged on the property. The group included S.W.A.T. teams of state, county, and city officers. The officers set up a portable loud speaker system and began announcing that they had a search warrant, but without waiting for a response they broke the window of the garage and began waving a gun through that window, a maneuver that was not too efficacious because a curtain got in the way.

The Ramirezes had no idea that police were outside their home, but they did hear the disturbance, did hear the breaking of glass, and thought that they were being burglarized. They feared for their safety and for the safety of their three-year-old child. Thus, in order to frighten the intruder off, Mr. Ramirez obtained a pistol from a utility closet and fired it toward the ceiling of the garage. The officers fired back and shouted "Police." At that point, and only at that point, the occupants of the house realized that it was law enforcement officers who had broken into the home. Ramirez "ran to the living-room, threw away the firearm across the floor, and threw himself on the floor in a prone position, shaking from fright." By 6:35 a.m., he and his wife, with their child in her arms, had walked out of the house and into police custody. These householders were the only persons captured in the raid. Shelby was nowhere to be found, although Ramirez acknowledged that a photo of Shelby looked like a person who might have been there on November 3.

Based on what occurred at the house that morning, a second warrant was obtained, the gun which Ramirez had fired and another one were seized, and Ramirez found himself in the toils of the law.

JURISDICTION AND STANDARD OF REVIEW

The trial court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731.

In general, we review determinations of motions to suppress de novo. United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). The trial court's factual findings are reviewed for clear error. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). Where no findings of fact were made or requested, this court will uphold a trial court's denial of a motion to suppress if there was a reasonable view to support it. United States v. Rabe, 848 F.2d 994, 997 (9th Cir.1988). The mixed fact and law question of exigent circumstances justifying a failure to comply with the statutory knock and announce provisions of 18 U.S.C. § 3109 is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994).

DISCUSSION

A. Knock and Announce. We have previously had occasion to expatiate on the important role that the Fourth Amendment plays in the protection of our homes--the centers of our family life and our refuge from the rude world. We must now cover that ground again.

As we said in Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990):

Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); United States v. Shaibu, 895 F.2d 1291, 1293 (9th Cir.1990) [, amended and superseded by, 920 F.2d 1423 (9th Cir.1990) ]; United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir.1988) (en banc). The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities. See Shaibu, at 1293; United States v. George, 883 F.2d 1407, 1411 (9th Cir.1989).

The amendment's force, however, extends even beyond the obtaining of a warrant. Even if a warrant issues, the concerns which lie at the heart of the amendment continue to evoke our solicitude. Our "concern for the privacy, the safety, and the property of our citizens continues...." Becker, 23 F.3d at 1540. That concern is reflected in knock-and-announce requirements. As the Supreme Court recently said, "[i]n evaluating the scope of [our Fourth Amendment] right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing." Wilson v. Arkansas, --- U.S. ----, ----, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976 (1995). Among those traditions was "[t]he common law knock-and-announce principle [which] was woven quickly into the fabric of early American law." Id. at ---, 115 S.Ct. at 1917. The Court, therefore, concluded that as a matter of constitutional law "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." Id. at ---, 115 S.Ct. at 1918. For our purposes, the tradition finds an even more direct expression of societal concern. "It finds expression in the knock and announce statute which allows an officer to 'break open any outer or inner door of a house ... to execute a search warrant if, after notice of his authority and purpose,' he is refused admittance. 18 U.S.C. § 3109." Becker, 23 F.3d at 1540. We insist upon this notice because, as individuals, we fear for our privacy in the face of government might, and we fear for our property and our safety as well.

"The fear of a smashing in of doors by government agents is based upon much more than a concern that our privacy will be disturbed. It is based upon concern for our safety and the safety of our families. Indeed, the minions of dictators do not kick in doors for the mere purpose of satisfying some voyeuristic desire to peer around and then go about their business. Something much more malevolent and dangerous is afoot when they take those actions. It is that which strikes terror into the hearts of their victims. The fourth amendment protects us...