U.S. v. Von Willie

• Decision Date: 06 July 1995
• Docket Number: No. 94-10291,94-10291
• Citation: 59 F.3d 922
• Parties: 95 Daily Journal D.A.R. 8937 UNITED STATES of America, Plaintiff-Appellee, v. Christopher Fredrick VonWILLIE, aka Christopher Fred VonWillie, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 922

59 F.3d 922

95 Daily Journal D.A.R. 8937

UNITED STATES of America, Plaintiff-Appellee, v. Christopher Fredrick VonWILLIE, aka Christopher Fred VonWillie, Defendant-Appellant.

No. 94-10291.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 14, 1995.

Decided July 6, 1995.

Mark J. Berardoni, Phoenix, AZ, for defendant-appellant.

Patrick J. Schneider, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: NORRIS, WIGGINS, and FERNANDEZ, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Christopher F. VonWillie was convicted of being a felon in possession of firearms and of using a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. Secs. 922(g)(1) and 924(c)(1). He was sentenced to 33 months imprisonment on the first count and 60 months imprisonment on the second count, to be served consecutively with each other and with a state court sentence that he is currently serving. He appeals both his conviction and his sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

FACTS

On the morning of December 26, 1991, officers from the Phoenix Police Department and the Arizona Department of Public Safety conducted a warrant search of VonWillie's residence. As a result, several packages of methamphetamine, three firearms (two of which were loaded), assorted drug paraphernalia, and over $3,000 in cash were seized.

The warrant was based on information obtained from a reliable confidential informant, police surveillance of the property, and prior investigations of Phoenix-area motorcycle gangs. The information indicated that drugs and weapons were likely to be found in the house, and that VonWillie, a motorcycle gang "warlord," was possibly dangerous. VonWillie does not challenge the warrant's validity, but he does challenge the circumstances surrounding its execution.

Before the warrant was executed, all of the participating officers except Sergeant Anderson attended a briefing. At the briefing, Detective Ballentine warned that VonWillie could be armed and the Special Assignments Unit described the plan of entry.

The actual entry did not proceed according to plan. The group of officers who were to execute the warrant knocked and announced their presence at a side door that turned out to open into a separate apartment that was unaccessible to the rest of the house. That group of officers then went to the rear of the house and knocked and announced their presence at a back door. They subsequently made a forced entry there. After the group had started knocking at the side door, but before they had entered at the back door, a series of significant but disputed events took place at the front door.

During this time period, Sergeant Anderson (apparently confused about his role) got out of his marked police car, which he had parked in front of the house, and he After a two-day hearing, the district court denied VonWillie's motion to suppress the evidence seized from his house. The court also denied various other pretrial motions, jury instruction requests, and VonWillie's Rule 29 motion for acquittal.

approached the front door. Before Anderson could knock, VonWillie opened the door. Anderson did not inform VonWillie that he was there to execute a search warrant. Instead, he said that he had received a report of a disturbance. VonWillie answered that there was no disturbance and began to shut the door. At this time, Detective Whitlow rushed to the front door with his gun drawn, ordering VonWillie out of the house. He grabbed VonWillie, pulled him onto the front porch, and handcuffed him. Whitlow explained at the suppression hearing that he had been surprised to see Anderson confronting VonWillie. He had feared that Anderson was in danger and that VonWillie might go back inside and get a weapon or destroy evidence. At some point during the encounter, Whitlow announced his identity and purpose to VonWillie, but the parties dispute when that occurred.

The jury convicted VonWillie on both counts, and he was sentenced on May 23, 1994 to consecutive terms of imprisonment. Those prison terms were also imposed to run consecutively to a state court sentence for a drug offense that arose from the same search of VonWillie's home. VonWillie timely appeals both his conviction and his sentence.

DISCUSSION

I. "KNOCK AND ANNOUNCE" STATUTE

Prior to trial, VonWillie moved to suppress the evidence seized from his home, arguing that the officers executing the search warrant violated the federal "knock and announce" statute, 18 U.S.C. Sec. 3109. Section 3109 requires "police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance." United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991).

Following a two-day evidentiary hearing, the district court denied the motion, concluding that the requirements of section 3109 were satisfied because the officers had knocked and announced their presence and purpose before entering. The district court also concluded that exigent circumstances existed that excused noncompliance with section 3109. ¹ We affirm on the latter ground.

This court reviews de novo the district court's denial of the suppression motion and its conclusion that exigent circumstances were present. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). The district court's underlying factual findings are reviewed for clear error. Id.

The determinative issue here is whether the entry at the front door was permissible. ² The relevant sequence of events is as follows: There was no knock at the front door--VonWillie opened the door before Anderson could knock and the door was not yet closed when Whitlow reached it; Whitlow did announce his identity and purpose as he reached through the door and grabbed VonWillie; Whitlow and another officer subsequently entered the house through the front door; there was no explicit refusal of entry by VonWillie (although VonWillie attempted to shut the door, that was after he had answered Anderson's pretextual question and before Whitlow announced his identity and purpose); and the entry occurred through a partially open door and did not require physical destruction of property.

Based on the foregoing description, we characterize Whitlow's initial reaching through the door and the officers' subsequent There were two types of exigent circumstances in this case: foreknown exigencies and unexpected exigencies that arose during the execution of the warrant. The foreknown exigencies included the officers' reasonable belief that VonWillie was armed and dangerous and that he had both weapons and drugs inside the house. The on-the-scene exigencies arose because of the misunderstanding regarding the role Anderson was to play in executing the warrant. As a result of this misunderstanding, Anderson actually confronted VonWillie at the front door (instead of remaining in his patrol car to apprehend anyone who tried to escape from the house). This surprised and worried Whitlow, who could see but not hear the exchange between VonWillie and Anderson. Whitlow was aware that VonWillie might be armed or have weapons within the house. Whitlow had heard the other officers knocking and announcing at the side door and reasonably could conclude that VonWillie had been alerted to their presence. He could see that Anderson's gun was not drawn. He knew there might be drugs in the house and it was reasonable for him to think that after seeing a policeman at his door and possibly hearing the other officers at the side door, VonWillie would go back inside and try to get rid of the drugs or arm himself.

entry as a simultaneous, no-refusal entry. Such an entry is permissible if at least "mild exigent circumstances" were present. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc) (mild exigency is sufficient to justify simultaneous knock/announce and entry if entry does not require physical destruction of property), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); United States v. Whitney, 633 F.2d 902, 909 (9th Cir.1980) ("only a mild indication of exigency is required to excuse noncompliance with the 'refusal of admittance' requirement of section 3109"), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981).

We conclude that Whitlow had a reasonable and sincere fear that Anderson was in jeopardy and contraband might be destroyed. This usually constitutes sufficient exigency to justify a simultaneous, no-refusal entry. See McConney, 728 F.2d at 1206; Whitney, 633 F.2d at 909-10. ³

VonWillie argues that a different result is required in this case for two reasons. We reject both. First, VonWillie contends that the officers' noncompliance with section 3109 cannot be excused on the facts here because the officers created their own exigency. In the context of warrantless entries and searches, this court has held that exigencies created by the government cannot be the basis for excusing compliance with the warrant requirement. See, e.g., United States v. Hackett, 638 F.2d 1179, 1183-85 (9th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); United States v. Curran, 498 F.2d 30, 34 (9th Cir.1974). Even assuming that this rule applies in the knock and announce context, the officers' actions in this case did not violate it. The rule has been applied only in cases where exigencies arose "because of unreasonable and deliberate [conduct] by officers," in which the officers "consciously established the condition which the government now points to as an exigent circumstance." See, e.g., Curran, 498 F.2d at 34 (emphasis added); Hackett, 638 F.2d at 1183; United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792,...