Opinion
Criminal Action No: SA-04-CR-81-XR.
October 12, 2005
ORDER
On this date the Court considered Defendant's Motion to Suppress (docket no. 103). The motion is DENIED.
Background
The defendant is charged in a four-count indictment with the following offenses: (1) conspiracy to distribute and possess with intent to distribute cocaine, within 1,000 feet of a secondary school; (2) aiding and abetting the distribution of cocaine, within 1,000 feet of a secondary school; (3) possession with intent to distribute heroin, within 1,000 feet of a secondary school; and (4) using, carrying and possessing a firearm during, in relation to and in furtherance of a drug trafficking crime.
A suppression hearing was held in this case on October 25, 2005, in connection with the Defendant's previous motion to suppress. In this motion Defendant seeks to suppress certain evidence "on the grounds that the state officers executing a warrant failed to knock and announce their presence, prior to their forcible entry into the home."
Based on an affidavit a City Magistrate issued a Search Warrant on January 10, 2004. The warrant was executed the following night. As the police officers were arriving at the residence they observed two males in the front yard. Detective Berrigan testified that it appeared that the two males were in the middle of a drug transaction and he saw a hand to hand exchange of a bag. When the police officers exited their marked police vehicles they approached the two men. One of the police officers was wearing a vest marked police. The other police officer was wearing rain gear marked police. They yelled "police" and "search warrant, narcotics." Detective Robert Perez testified he saw one male (Albert Contreras) throw a bag into the air. Defendant Alex Gallegos fled and was apprehended when he ran to the rear of the house. "Real close" to where Defendant was apprehended, the police officers found a "baggie of cocaine and heroin packaged the same way as we found on the defendant when [they] first rolled up [to the house]." Thereafter, the police officers took Mr. Contreras and the Defendant inside the home and conducted a security sweep. Once the sweep was completed and Defendant's sister was found inside the home, the search warrant was read to the Defendant, the other male apprehended in the front yard (Albert Contreras), and the defendant's sister (Amira Gallegos). In addition, the Defendant was read his "Miranda" rights. Detective Berrigan testified that the Defendant acknowledged understanding his "Miranda" rights.
The bag was later tested and found to contain cocaine.
A search of the home found approximately $34,000 cash in several rooms. A search of a "shed" outside the house resulted in the discovery of 584 grams of cocaine, 274 grams of black tar heroin, and a "cutting agent". In addition, six weapons (two sawed off shotguns, a .45 caliber handgun, a Luger 9 mm, .22 rifle, and a Colt 25 revolver) were found. When police officers informed Defendant that they found narcotics in the shed and asked Defendant if he knew anything about them, he said he did not but asked the police officers to show him what had been found. Detective Perez testified that despite claiming no knowledge about the drugs, Defendant kept looking in the direction of where the cocaine was found.
Analysis
The standard for evaluating a no-knock entry in the Fifth Circuit was most recently articulated in U.S. v. Washington, 340 F.3d 222 (5th Cir. 2003):
[T]he 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. . . . Although the [Supreme] Court [in Richards] refused to adopt a blanket rule that police are never required to knock-and-announce when executing a warrant for a drug investigation, the Court admitted that the showing of reasonableness "is not high." In order to justify the no-knock entry in this case, the police officers must have had a reasonable suspicion that the drugs could be readily destroyed or that announcing their presence would endanger their safety.Id. at 226 (citations omitted). Further, the Fifth Circuit has stated that the knock-and-announce rule should not be applied in a "rote fashion" nor should "meaningless formalism" be required under appropriate circumstances. U.S. v. Buchanan, 78 Fed. Appx. 933, 935 (5th Cir. 2003).
In this case, the police officers were in the possession of a search warrant. Prior to serving the warrant they saw what they reasonably believed to be a drug transaction taking place in the front yard of the home that was to be searched. They announced their presence as police officers. They drove up in marked police vehicles and were wearing uniforms that clearly stated they were police officers. Upon seeing the police officers the Defendant and his companion ran away. The Defendant ran to the rear of the home that was going to be searched.
The Government argues that the facts of this case demonstrate that the Defendant knew that police officers were in the front yard of his home, he ran from the police officers, that the police officers stated their purpose (to execute a search warrant), that the police officers arrested and handcuffed the Defendant prior to entering into the home, and accordingly any "knock" would have been a "useless gesture." Further, the Government argues that given the commotion that ensued as the police officers chased the Defendant and Mr. Contreras in the front and back yards, it is reasonable to assume that their presence and safety was compromised and that the commotion alerted anyone inside the home to potentially destroy any illegal contraband.
Defendant relies upon U.S. v. Sanchez, 2005 WL 435253 (W.D. Tex. 2005) in support of his position. Reliance, however, upon Sanchez is misplaced. In Sanchez, this Court concluded that the police officer's failure to knock and announce was excused, in part, because the Defendant in Sanchez had the functional equivalent of notice of authority and purpose as required by 18 U.S.C. § 3109.
More difficult to reconcile are the Fifth Circuit's decisions in U.S. v. Valdez, 302 F.3d 320 (5th Cir. 2002), Wittner v. U.S., 406 F.2d 1165 (5th Cir. 1969), and the recent statements made by that Court in Washington and Buchanan.
In Valdez, the Fifth Circuit concluded that the district court did not abuse its discretion in suppressing certain evidence. Valdez, 302 F.3d at 321. In Valdez, a "case agent tasked a five person entry team with execution of the warrant. In preparation for execution, the entry team dressed in ski masks, black `battle dress uniforms,' and combat boots. As the van carrying the entry team traveled East bound on Richard street, a car with five male youths traveling West bound on Richard street turned into the driveway of Defendant. The entry team van followed the car into the driveway and parked. The team exited the van, rushed toward the door of the house, yelled to the five youths `get down, police,' and lined up single-file at Defendant's door. Officer McCoy, the first team member in the line, knocked on the door with his hand and immediately kicked the door twice intending to open the door. The second kick caused the door to open. The warrant was executed resulting in the arrest of Defendant and seizure of approximately 75 grams of cocaine." Id.
The Valdez district court found that because there was no wait in between the knock and the forced entry, the officers violated the knock-and-announce rule. The Valdez district court also concluded that the "government failed to provide a convincing case that pausing some 10 to 20 seconds was not reasonable" and the "failure to wait was not mitigated by any exigent circumstance. In order to justify the entry, the police must have a reasonable suspicion that knocking and announcing, under the particular circumstances, would be dangerous and futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id.
The Valdez district court found that "no exigent circumstance existed inside the Defendant's home. There was no testimony at the suppression hearing that officers had any reason to believe that there were weapons in Defendant's home, or that armed and dangerous people were known or even rumored to be present there. No weapons were seized in the raid of Defendant's home. There was no testimony that any officer heard movements inside Defendant's home suggesting that evidence was being destroyed." Id.
In affirming the Valdez district court the Fifth Circuit noted that the district judge "carefully considered all of the facts and circumstances associated with this arrest, and that none of his factual findings is clearly erroneous. Given his factual findings, we hold that the district judge did not abuse his discretion in suppressing the evidence. In upholding the district court's ruling, we emphasize that this case is close, which all the more requires us to abide by the findings of the factfinder here. . . ." Id.
In Wittner v. U.S., 406 F.2d 1165 (5th Cir. 1969), an "Internal Revenue agent with [a] search warrant approached the front of the house while another agent found appellant in back, arrested him, went inside, and commenced a search. The agent with the warrant came inside and served it after the search had begun. The arresting officer did not make an official announcement of authority and purpose before entering the house." Id. at 1166. The Fifth Circuit concluded that "we believe this case is governed by the rule that a formal announcement of authority and purpose is not essential to the validity of an entry and search where such an announcement would be a useless gesture. Appellant knew he was being arrested, knew why he was being arrested, and knew why he and the officer were going inside the house." Id.
In this case the only exception that could apply to the police officers' failure to knock and announce is the "useless gesture" exception. The Government has failed to offer any specific evidence that an "exigent circumstance" exception may be applicable. None of the Government witnesses who testified at the suppression hearing stated that they believed evidence was about to be destroyed.
Despite the apparent inconsistency between Valdez and Wittner, the Court concludes that the announcement of the officers' identity and their purpose suffices. In Valdez, the car carrying the five boys turned into the driveway of the home in question. 302 F. 3d at 321. Immediately the police followed, "rushed the door of the home," yelled to the five youths "get down, police," and proceeded to kick in the door to the house. Id. In addition, Valdez did not discuss the "useless gesture" or "futility" exception.
In this case, however, the Defendant was aware that police officers arrived to the front of the home, the police officers announced their presence and the fact that they had a search warrant, the Defendant ran to the rear of the home to avoid the police officers, and was thereafter arrested. All these facts provided the Defendant and any other potential occupants of the home adequate notice.
Conclusion
Defendant's motion to suppress is DENIED (docket no. 103).