United States v. Price

• Decision Date: 07 December 1977
• Docket Number: No. LR-CR-77-133-(1).,LR-CR-77-133-(1).
• Citation: United States v. Price, 441 F.Supp. 814 (E.D. Ark. 1977)
• Parties: UNITED STATES of America, Plaintiff, v. Leza PRICE, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

441 F. Supp. 814

UNITED STATES of America, Plaintiff, v. Leza PRICE, Jr., Defendant.

No. LR-CR-77-133-(1).

United States District Court, E. D. Arkansas, W. D.

December 7, 1977.

Kenneth F. Stoll, Richard M. Pence, Jr., Asst. U. S. Attys., Little Rock, Ark., for plaintiff.

Art Givens, Givens & Buzbee, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

SHELL, District Judge.

On November 2, 1977, an evidentiary hearing was held in this Court on defendant's motion to suppress evidence obtained as a result of an allegedly unlawful search and seizure. Upon completion of the hearing, the Court ruled from the bench that the motion was denied, and proceeded, pursuant to Rule 23(a), to hear the merits of the case. At the close of the trial, the Court, upon further consideration, set aside its earlier ruling on the motion to suppress and took both the motion and the case-in-chief under advisement. Accordingly, this opinion incorporates the Court's findings of fact and conclusions of law.

Although there is some dispute, the Court finds the facts relevant to the motion to suppress to be as follows:

On December 10, 1976, a valid search warrant was issued by an Arkansas municipal judge authorizing a search of a "mobile home located at approximately fifty yards north of the intersection of Oak Grove Road and Highway 365 on Oak Grove Road on the west side of the road in Pulaski County being gold in color with brown trim around the top and bottom and brown shutters." The warrant was issued upon the affidavit of Arkansas State Trooper Jerry Roberts,¹ and listed the property to be seized as certain currency and marijuana.

Shortly after the judge issued the warrant, Trooper Roberts and four North Little Rock police officers arrested Kerry Hodge² and proceeded to the mobile home described in the warrant. Upon arriving there at about 12:30 a. m., the officers and Hodge quietly approached the trailer. At the front door, Trooper Roberts drew his revolver with his right hand and held Hodge in front of him with his left hand; the other officers were standing behind them. When the front door opened,³ Trooper Roberts pushed Hodge into the trailer,⁴ then he and the other officers charged in with their guns drawn and began to search the dwelling.

It is clear that the policemen identified themselves once they had gained entry into the dwelling. But, it is equally clear that the officers did not state their identity, authority or purpose before they entered the defendant's premises; nor did they attempt to serve the warrant beforehand.⁵

The resulting search not only produced a substantial amount of "green vegetable matter" appearing to be marijuana, but also a sawed-off 20-gauge shotgun. Subsequently, the defendant was indicted by the United States Grand Jury for the Eastern District of Arkansas for violation of 26 U.S.C. § 5861(d),⁶ which makes possession of certain nonregistered firearms illegal.

The defendant attacks the warrant and the resulting search and seizure on a number of grounds,⁷ most of which are without merit. However, a substantial question is raised with respect to whether the method of entry into the trailer by the police officers offended the constitutional guarantee against unreasonable searches and seizures, thereby rendering the seized evidence (i. e.—the shotgun) inadmissible.

The Fourth Amendment to the United States Constitution mandates that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

Whether a search and seizure is reasonable is "a substantive determination to be made by the trial court from the facts and circumstances of the case and in light of the `fundamental criteria' laid down by the Fourth Amendment and in the opinions of this Court applying that Amendment." Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). In short, a federal constitutional standard is to be applied in determining the reasonableness of a search and seizure.⁸E. g., United States ex rel. Dyton v. Ellingsworth, 306 F.Supp. 231 (D.Del.1969); United States ex rel. Manduchi v. Tracy, 233 F.Supp. 423 (E.D.Pa.1964), aff'd on other grounds, 350 F.2d 658 (3d Cir.), cert. denied, 382 U.S. 943, 86 S.Ct. 390, 15 L.Ed.2d 353 (1965). Such a standard is expressed in 18 U.S.C. § 3109.⁹See United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974). For, as Justice Brennan indicated in his opinion in Ker, supra, both the Fourth Amendment and 18 U.S.C. § 3109 were derived from the firmly established Anglo-American tradition that "the fundamental liberty of the individual includes protection against unannounced police entries." 374 U.S. at 47-53, 83 S.Ct. at 1636.¹⁰ In applying that tradition vis-a-vis either the Fourth Amendment or § 3109, courts have consistently held that before officers enter upon private premises to conduct a search pursuant to a warrant,¹¹ they must make an announcement of their identity, authority and purpose for seeking entry unless there are exigent circumstances excusing their failure to do so.¹²E. g., Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); United States v. Pratter, 465 F.2d 227 (7th Cir. 1972) (Stevens, C. J.); Keiningham v. United States, 109 U.S. App.D.C. 272, 287 F.2d 126 (1960); United States v. Doering, 384 F.Supp. 1307 (W.D. Mich.1974); United States v. Blank, 251 F.Supp. 166 (N.D.Ohio 1966); Monroe v. Pape, 221 F.Supp. 635 (N.D.Ill.1963). If the officers secure entry without complying with this requirement, evidence seized by them must be suppressed. United States v. McClard, 333 F.Supp. 158, 167 (E.D.Ark. 1971) (Henley, J.), aff'd mem. 462 F.2d 488 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 345, 34 L.Ed.2d 255 (1972).

Since it is clear that the officers in this case did not announce their identity and authority before they entered the defendant's premises, the only question remaining is whether exigent circumstances were present excusing the officers' failure to comply with the announcement requirement. In Ker, supra, Justice Brennan detailed such circumstances as follows:

". . . (1) where the persons within already know of the officers' authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted." 374 U.S. at 47, 83 S.Ct. at 1636.

Clearly, none of these circumstances were present in this case. There was no testimony by any of the officers that there were persons inside the trailer who were in danger of bodily harm; nor was there any evidence that the persons within already knew of the officers' authority and purpose. See, e. g., Sabbath v. United States, supra; Gilbert v. United States, 366 F.2d 923, 931 (9th Cir. 1966); United States ex rel. Ametrane v. Gable, 276 F.Supp. 555, 557 (E.D. Pa.1967), aff'd 401 F.2d (3d Cir. 1968). Compare United States ex rel. Dyton v. Ellingsworth, supra. In fact, the record reveals the exact opposite: the officers knew neither the identity nor the number of people inside the dwelling before they entered; moreover, the occupants of the trailer realized that the five men in street clothes who charged into the trailer were police officers only after they had gained entrance. Finally, there was no evidence that the officers believed that destruction of evidence was being attempted. Though the property authorized to be seized by the warrant (i. e.—currency and marijuana) was susceptible to removal or destruction, such is not sufficient to excuse compliance with the announcement rule. Cf. United States v. Doering, 384 F.Supp. 1307 (W.D. Mich.1974). Rather, the officers must have a reasonable belief that evidence is presently being removed or destroyed. In short, there were no urgent circumstances in this case justifying the immediate action of a forceful entry without proper notice.

Having thus concluded that the entry into the defendant's trailer was not preceded by a constitutionally mandated announcement of identity, authority and purpose, and there being no exigent circumstances present which would excuse the lack of compliance with the announcement rule, this Court is compelled to hold that the officers' entry was improper; accordingly, "the search which followed that improper entry cannot be upheld even if the search would otherwise have been valid." Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126, 130 (1960).¹³

In so holding, the Court is aware that the announcement requirement may appear to be a rule without reason. But, addressing that same sentiment in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the Supreme Court stated:

"We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness. 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. . . . Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.

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