USa. v. Spry

• Decision Date: 08 October 1999
• Docket Number: No. 98-4104,98-4104
• Citation: 190 F.3d 829
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SUSAN C. SPRY, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 829

190 F.3d 829 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SUSAN C. SPRY, Defendant-Appellant.

No. 98-4104

United States Court of Appeals, Seventh Circuit

ARGUED APRIL 19, 1999

DECIDED SEPTEMBER 10, 1999

Rehearing and Rehearingh En Banc Denied October 8, 1999

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 CR 21--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted] Before POSNER, Chief Judge, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

On April 2, 1998, a federal grand jury in the Western District of Wisconsin returned an eight- count indictment against the defendant- appellant, Susan C. Spry ("Spry"). Count One of the indictment charged Spry with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. sec. 841(a)(1).¹ Spry pled guilty to Count One on September 14, 1998, and the district court entered judgment against Spry on November 27, 1998. Spry appeals. We affirm.

I. BACKGROUND

On April 14, 1992, Officer John Christensen ("Christensen") of the Duluth, Minnesota, Police Department sub mitted an affidavit to a state judge in St. Louis County, Minnesota, requesting a "no-knock" search warrant for Spry's residence at 422 North 19th Avenue West in Duluth, Minnesota. Christensen had learned from a confidential informant that Spry was distributing illegal narcotics from her residence, in violation of 21 U.S.C. sec. 841(a)(1). The judge issued the no-knock warrant, based on Christensen's affidavit, ruling that an unannounced entry into Spry's residence was necessary to prevent the loss, destruction, or removal of evidence of drug trafficking and in order to protect the safety of the officers involved. The 1992 warrant authorized officers conducting the search to "enter without announcement of authority and purpose." Later the same day, police officers forcibly entered Spry's residence without knocking, announced their presence, and completed a search. Police recovered 130 grams of marijuana and over $1,000 in cash inside Spry's residence and placed Spry under arrest. Spry was convicted of possession of marijuana and sentenced to two years probation.

Five years later, on May 27, 1997, Officer Todd Maas ("Maas") of the Superior, Wisconsin, Police Department submitted an affidavit in support of his application for a search warrant for Spry's residence at 2107 Ogden Avenue in Superior, Wisconsin. In his affidavit, Officer Maas stated that within the prior 72 hours, a confidential informant ("CI") had advised the police that a third party planned to buy methamphetamine for the CI from an individual living in Superior. The affidavit stated that the Superior Police had then set up surveillance on the unknown third party and followed her to Spry's home where she remained for forty-five minutes. After the meeting at Spry's residence, the third party gave methamphetamine to the CI, who turned the methamphetamine over to police. The CIreported that the third party had told her that she had bought the methamphetamine from "Sue" during her forty-five minute meeting in Spry's residence and furthermore that Sue had stated that she had an additional two ounces for sale. The affidavit also recounted that Officer Shelly Johnson of the Duluth Police Department had received intelligence information from another CI that Spry was involved in dealing controlled substances in the Duluth/Superior area.

After reviewing Officer Mass's affidavit, a state court judge in Douglas County, Wisconsin, issued a search warrant, and police searched Spry's home at 2107 Ogden Avenue in Superior on May 27, 1997, pursuant to the warrant. During the search, police recovered 106 grams of marijuana, 37.2 grams of methamphetamine, 632.2 grams of psilocybin mushrooms, over $6,000 in cash, and various drug paraphernalia for diluting, repackaging, and redistributing controlled substances. Police placed Spry under arrest for possession with intent to distribute methamphetamine marijuana, and psilocybin. Spry was detained in theDouglas County Jail and released on October 31, 1997, when the charges against her were dismissed in lieu of further investigation.

Thereafter, on February 16, 1998, Special Agent James Ohm ("Ohm") of the Wisconsin Department of Justice, Division of Narcotics Enforcement, submitted an affidavit in support of a warrant to search Spry's residence at 2107 Ogden Avenue in Superior, Wisconsin. In the affidavit, Ohm detailed his extensive background in the investigation of narcotics cases and stated that based on his experience, he knew that large scale narcotics traffickers maintained evidence of their activities at their residences. Ohm, in support of the 1998 search warrant, submitted to the state court judge the results of earlier searches of Spry's homes, which included the seizure of thirty-seven grams of methamphetamine, a quarter-pound of marijuana, nearly one and one-half pounds of psilocybin mushrooms, over $6,000 in cash, paraphernalia related to drug dilution, repackaging and redistribution, and various narcotics records. Ohm's affidavit also recited that confidential informants had reported to the Superior Police Department that Spry continued to traffic in controlled substances in the Duluth/ Superior area after the search of her residence and arrest in May of 1997 and that Spry was still distributing methamphetamine in the area as late as January of 1998. Based on Ohm's affidavit, a Douglas County judge issued the 1998 warrant, and the police searched Spry's residence on February 16, 1998. Police recovered 100 grams of marijuana, a number of empty syringes, a syringe filled with methamphetamine, an electronic scale, cellophane zip-lock bags, twenty-three grams of an unknown white-colored powder, and more than $3,000 in cash. On February 24, 1998, the police arrested Spry for possession of controlled substances.

On April 2, 1998, a federal grand jury in the Western District of Wisconsin returned an eight-count indictment against Spry. Count One of the indictment charged Spry with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. sec. 841(a)(1). Counts Two through Eight of the indictment are not involved in this appeal. On July 31, 1998, Spry moved to suppress the evidence obtained during the April 14, 1992, May 27, 1997, and February 16, 1998, searches of her various residences. On August 5, 1998, the district court declined to grant an evidentiary hearing on any of these motions, stating that Spry had failed to make "a substantial preliminary showing of any reckless or intentional omissions" on the part of the Government. On September 9, 1998, a magistrate judge issued a Report and Recommendation which: (1) reaffirmed the decision not to grant an evidentiary hearing; and (2) recommended that the suppression motions be denied. On September 18, 1998, the district judge entered an order adopting the magistrate's recommendations.

Spry pled guilty to Count One of the indictment on September 14, 1998. The district court determined that 2,067 grams of methamphetamine represented Spry's relevant conduct. The court determined that Spry's offense level was 33 and that she fell within criminal category I, placing her in a guideline range of 135 to 168 months. On November 23, 1998, the court sentenced Spry to 152 months imprisonment. Spry appeals.

II. ISSUES

On appeal, we consider: (1) whether the district court correctly determined that the law did not require police officers, after obtaining the 1992 no-knock search warrant, to make an independent determination of the exigent circumstances at the time they executed the warrant; (2) whether the district court erred by finding that the police had relied in good faith on the 1997 warrant at the time of the search in May of 1997; (3) whether the district court erred by finding that probable cause existed to issue the 1998 warrant; and (4) whether the district court erred by finding that Spry's prior drug dealings constituted relevant conduct for sentencing.

III. DISCUSSION

A. The Failure to Knock-and-Announce Before Executing the 1992 Warrant

Initially, Spry asks this Court to vacate her conviction and order the suppression of evidence discovered during the 1992 search of her residence in Duluth, Minnesota. Spry contends that even though the April 14, 1992, warrant authorized a no-knock entry, the executing police officers should have reevaluated the reasonableness of the no- knock approach before the time of entry. The trial court considered Spry's contention and determined that the law in this Circuit does not require officers executing a no-knock warrant to independently assess the reasonableness of the entry.

The Fourth Amendment incorporates the common law requirement that officers entering a dwelling must "knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S. Ct. 1416, 1418, 137 L. Ed. 2d 615 (1997) (citation omitted). However, no "rigid rule" exists requiring announcement in all circumstances. United States v. Ramirez, 523 U.S. 65, ___, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998). "[I]n order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. (citation and internal quotation omitted).

In the case under consideration, a state judge in St. Louis County, Minnesota, issued the no-knock warrant on April 14, 1992, based on Officer Christensen's affidavit, in which he requested an unannounced entry into Spry's residence at 422 North 19th Avenue West in Duluth, Minnesota. Christensen stated that the unannounced entry was necessary to prevent the loss, destruction, or removal of evidence...