U.S. v. Sargent, No. 01-CR-14-B-S.

• Decision Date: 12 July 2001
• Docket Number: No. 01-CR-14-B-S.
• Citation: 150 F.Supp.2d 157
• Parties: UNITED STATES of America v. Roscoe B. SARGENT, Defendant
• Court: U.S. District Court — District of Maine

Page 157

150 F.Supp.2d 157

UNITED STATES of America v. Roscoe B. SARGENT, Defendant

No. 01-CR-14-B-S.

United States District Court, D. Maine.

July 12, 2001.

Timothy D. Wing, Assistant United States Attorney, U.S. Attorney's Office, Bangor, ME, for U.S.

Brett D. Baber, Baber & Weeks, Bangor, ME, for defendant.

ORDER MODIFYING THE RECOMMENDED DECISION

SINGAL, District Judge.

On May 31, 2001, the Court issued an Order (Docket # 11) affirming the Magistrate Judge's Recommended Decision (Docket # 7) to deny Defendant's Motion to Suppress Evidence (Docket # 4). In light of a new First Circuit opinion, United States v. Brown, 251 F.3d 286, 293 (1st Cir.2001), the Court issued an Order (Docket # 14) asking the parties to file supplemental briefs regarding how the Brown ruling affects the merits of Defendant's arguments and whether the Court could and/or should reopen the factual record and receive additional evidence. Neither party has requested that the Court reopen the factual record.

Based on the parties' supplemental memoranda and the Court's interpretation of Brown, the Court withdraws its prior Order affirming the Recommended Decision and in its place issues this Order Modifying the Recommended Decision. See, e.g., United States v. Lachman, 48 F.3d 586, 594 (1st Cir.1995) ("Within very broad limits, the district court is free to reexamine its position on any issue as the case develops."). Based on the discussion below, the Court GRANTS Defendant's Motion to Suppress Evidence.

I. FINDINGS OF FACT

On December 29, 2000, Special Agent Andrew Miller of the Maine Drug Enforcement Agency ("MDEA") filed an "Affidavit and Request for Search Warrant" (Docket # 5, Attach.) with the State District Court located in Bangor, Maine, pursuant to Me. R.Crim. P. 41. The affidavit describes how, through a confidential informant, Miller had probable cause to know that Defendant Roscoe Sargent was selling narcotics, specifically marijuana and hallucinogenic mushrooms, out of his residence. The affidavit requested a daytime search warrant of Sargent's home and person. Miller did not ask for a no-knock warrant.

The affidavit and request provides no information regarding the possibility of weapons being present at Sargent's home. Miller, however, testified at the suppression hearing that prior to requesting a search warrant, he had reason to believe that Sargent's home contained a large number of knives, dispersed throughout his small, two-room apartment.¹ Even though the evidence presented at the hearing demonstrated that the police knew that Sargent possessed numerous bladed weapons and had easy access to them, no evidence indicated that Sargent had a violent disposition or otherwise was likely to do violence with those knives.

During the evening of the same day, December 29, 2000, Miller and several other police officers executed the search warrant. Accompanying Miller was Bangor Police Officer Gregory Sproul, a member of the Bangor Special Tactical Team. The role of the Tactical Team was "to make the entry, secure the premises and the people within the residence, and then turn it over to the MDEA," who presumably would search for illegal narcotics pursuant to the search warrant. (Tr. p. 8-9 (Docket # 9).) At about 8:30 p.m., the group of police officers arrived at Sargent's apartment building, entered it, and proceeded down a hallway toward Sargent's unit.

Sproul testified that upon reaching Sargent's apartment door, both he and another Tactical Team officer, John Heitmann, announced their presence by yelling words to the effect of, "Bangor police, search warrant, open the door." (Tr. p. 9, l.16.) At the same time, they knocked on the apartment door. The police officers then waited approximately five seconds. Sproul testified that he thought that five seconds was an appropriate amount of time to wait because he had "safety concerns" (Tr. p. 10, l.13), and because he had not heard anyone making any motion to comply with their request to open the door. After the five second delay, Officer Sproul gestured to the "breaching man," Officer Al Hayden, who then smashed in the apartment door with a single strike of a battering ram. Thereafter, officers entered the apartment and found Sargent near the doorway. Upon searching the apartment, the police uncovered a cache of marijuana and psilocybin mushrooms, as well as multiple knives and a shotgun.

Sargent and his girlfriend, Heather Fliegelman, both testified that they had been sitting inside Sargent's small apartment's front room when they heard "a lot of racket out in the hallway." (Tr. p. 19, l.21.) Sargent rose out of his chair to investigate the noise. As he approached the apartment door, Sargent heard the police officers announcing their presence. Sargent testified that "I hollered that I was opening the door, and I got the door unlocked, but I didn't have a chance to even turn the doorknob because they smashed the door in without giving me a chance." (Tr. 20 ll.1-4.) Apparently, Sproul did not hear Sargent declare that he was in the process of opening the door.

II. DISCUSSION

When police officers have probable cause to search a home, and they have a reasonable suspicion that searching that residence poses a risk to human safety or a risk that evidence will be destroyed, the police may request a so-called "no-knock" search warrant which authorizes police officers to enter a home without pausing to knock on the front door or to announce their presence. See, e.g., Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Unless the police have obtained and are executing a no-knock warrant, police officers generally must "knock and announce" themselves prior to entering a residence. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

In the present case, the police neither asked for nor received a no-knock warrant. Defendant argues that the police officers violated his Fourth Amendment rights because when they arrived to search his apartment, they did not make a legitimate knock-and-announce entrance. Rather, Defendant contends that by delaying only five seconds, the police made a de facto no-knock entry. The Government responds by arguing (1) that it was not a de facto no-knock entry, rather that the police performed a valid knock-and-announce entrance, and (2) that even if the Court treats the police officers' actions as a de facto no-knock entry, it was justified because of exigent circumstances.

A. No-Knock Warrants

The requirement that police officers knock and announce themselves prior to entering a residence is grounded in the Fourth Amendment's protection against unreasonable searches. The knock-and-announce requirement

serves several worthwhile purposes: (i) it decreases the potential for violence, as an unannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures; (ii) it protects privacy by minimizing the chance of entry of the wrong premises and subjecting innocent persons to the shock, fright or embarrassment attendant upon an unannounced police intrusion, and even when there is no mistake, allows those within a brief time to prepare for the police entry; and (iii) it prevents the physical destruction of property by giving the occupant the opportunity to voluntarily admit the officer into his home.

Wayne LaFave, Jerold Israel & Nancy King, Criminal Procedure § 3.4(h) (1999) (internal quotations and footnotes omitted). "The Fourth Amendment, reflecting the long common law tradition protecting the sanctity of the home, includes a general presumption that police officers executing a search warrant for a residence must announce their presence and authority before entering." United States v. Moore, 91 F.3d 96, 98 (10th Cir.1996) (citing Wilson, 514 U.S. at 934, 115 S.Ct. 1914 (stating that there is a "presumption in favor of announcement")). Although police generally must knock and announce prior to executing a search warrant, there are two exceptions: if the police have obtained a no-knock warrant, or if exigent circumstances arise.

In the instant case, it appears that if the police had included in the warrant application information regarding Defendant's possession of numerous knives and the likelihood that evidence would be destroyed, the State court judge may have issued a no-knock warrant to the police. See, e.g., Me. R.Crim. P. 41(i). At the time of the application, the police had information indicating that Sargent had many knives.

Special Agent Miller, however, testified that he simply did not have enough time to seek a no-knock warrant. The Court, however, finds this to be a poor excuse: taking the extra step of petitioning the State court for a no-knock warrant would have required writing one or two additional sentences on the application (Agent Miller typed three pages of text for his affidavit) and placing a check mark in the box beside the statement "I request that a search warrant be issued which may be served without providing notice of the officer's purpose and office." (Affidavit and Request for Search Warrant at 6 (Docket # 5, Attach.).) Demanding this type of meticulousness from police officers is not a technicality designed to impede law enforcement efforts. Rather, requiring police officers to request permission prior to conducting a no-knock search ensures that a neutral magistrate reviews the facts of the case and agrees that the situation merits a no-knock entry. The solemn role of the judge is to balance an individual's Fourth Amendment privacy rights against the potential overzealousness of police officers.

B. Whether the Entry Was a De Facto "No-Knock" Entry

The police officers did not seek or obtain a no-knock warrant, but Defendant argues that they acted as if they had one. The police waited five seconds. Officer Sproul testified that five seconds was a...