Opinion
CRIMINAL DOCKET NO. 02-277 SECTION "L"
February 7, 2003
ORDER REASONS
Before the Court is the motion of defendant Ronnie Merrill to suppress all evidence seized at the time of his arrest on September 11, 2002. A suppression hearing was held on January 8 and 9, 2003 to consider the testimony of witnesses involved in the execution of the arrest warrant and search of the residence in which the defendant was arrested. Following the hearing, the Court permitted the government and defendant to file supplemental briefs on the issues raised in the hearings and took the matter under submission. Having considered the testimony and briefs of the parties, the Court, for the following reasons, DENIES the defendant's motion.
I. BACKGROUND On September 10, 2002, United States Magistrate Judge Louis Moore signed a warrant for the arrest of defendant Ronnie Merrill. The Federal Bureau of Investigation and other police agencies executed the warrant the following day. The leader of the arrest group was FBI Special Agent James Insco, who testified regarding the events of that day. The officers decided to first visit the last known address of the defendant, 1427 Conti Street in New Orleans. The defendant's mother, Sandra Merrill, lived at the house.
According to the testimony of Mrs. Merrill, the police began knocking on the door early in the morning of September 11, 2002, but did not announce their intent to execute an arrest warrant or identify themselves as police officers. When Mrs. Merrill answered the door, the officers entered the house and informed her that they were looking for Ronnie Merrill because they had a warrant for his arrest; the officers also told Ms. Merrill that they did not have a search warrant for the location. Mrs. Merrill told the officers her son was not there and invited them to walk through the house and see for themselves, which they did.
The officers then decided that the best place to find Merrill would be to look for his girlfriend, Tammy Brown. Based on the knowledge of one of the officers present, the arrest team then proceeded to Ms. Brown's known address on North Robertson Street, where Ms. Brown lived with her grandmother Clarisse Coleman. According to the testimony of Ms. Coleman, the officers arrived at the house and began knocking on the door to her apartment. They neither stated their identity nor purpose in being there prior to the door being opened. The officers again waited until Ms. Coleman answered the door and then informed her that they were looking for Tammy Brown, who Ms. Coleman said was not at the residence. She further told the officers that the defendant was not there, and that he had never spent the night at the apartment.
With Ms. Coleman's consent, the officers walked through Ms. Coleman's house to verify that the defendant was not present. They noticed that the door to one of the rooms was locked and the television was on. They were told the door led to Tammy Brown's room. The officers asked Ms. Coleman if she had a key to the door, and she responded that she did not. Ms. Coleman testified that she told the officers that they would need to break the door down if they intended to enter the room. The officers proceeded to force the door open.
Officer Desmond Pratt testified that when he entered the room, he looked around the room and under the bed, finding no indication of the defendant's presence. The officer further testified that at that time, he heard the phone ring in the room. He noticed a Caller ID box in the room displaying a telephone number and the name "Tammy Brown.' The officer noted the phone number and entered it into his cell phone and called information to do a reverse look-up and ascertain the address to which the number was assigned. Officer Pratt learned that the address in question was 4703 1/2 Baudin Street.
At the same time as Officer Pratt was searching Tammy Brown's room and checking the phone number, Special Agent Insco and the other officers were talking to Ms. Coleman, asking her if she had any contact information for Tammy Brown. Ms. Coleman testified that she told the officers to retrieve a pad of phone numbers from her bedroom. The officer who retrieved the pad also called information for a reverse look-up of the number on the pad linked to Tammy Brown. That number was the same as the one found by Officer Pratt. Agent Insco also testified that he was told that the number belonged to Tammy Brown, according to the telephone company records.
A utilities bill for 4703 1/2 Baudin Street introduced into evidence at the suppression hearing identified Tammy Brown as an adressee. Tammy Brown was identified as Tammy Brown's brother. However, Tammy Brown admitted in her testimony that the telephone and cable bills for the Baudin Street address were in her name. Agent Insco testified that he relied only on the report from the telephone company that the Baudin Street address belonged to Ms. Brown. Based on the information learned at the Coleman residence, the officers decided to proceed to 4703 1/2 Baudin Street.
Agent Insco testified that the arrest warrant team arrived at 4703 1/2 Baudin Street at approximately 7:07 a.m. The house was surrounded by officers with Agent Insco at the front of the house. He testified that within five minutes of his arrival he began knocking on the outer security door of the residence. The officers did not use any type of a breaching tool. Agent Insco admitted that the officers were only knocking at this point; they did not announce their presence or their intent to serve an arrest warrant. Agent Insco stated that after knocking for a period of time, the officers heard someone running in the residence; he described the sound as though a "herd of elephants' were running. At this point, Agent Insco and the other officers identified themselves for the first time as police officers.
Agent Insco then heard other officers calling out that something or someone was "out the window." Assuming that Merrill had jumped out the window and was running away, Agent Insco hurried to the back of the house and saw a hand that was reaching out the rear window disappear into the house. The other officers in the rear of the house told Agent Insco that someone was throwing bags of white powder. He testified that later a substantial quantity of heroin was recovered from outside the window. At that point, he raced back to the front of the house and assisted the other officers in pulling open the outer security door. They did so and began pounding on the inner door of the house. At this point, the defendant opened the door with a gun in his hand. He was pushed down and handcuffed.
While these events were taking place, the defendant, Tammy Brown, and her baby were inside the residence. Tammy Brown testified that she awakened to the sound of loud banging on what she thought was the inner door of the house. She awakened the defendant and told him about the banging. According to her testimony, the defendant ran down the stairs and opened the door; she did not hear him enter the kitchen or any other area of the house. The defendant testified that he ran down the stairs of the residence with a gun in his hand and heard a loud banging on the door. He did not hear any announcement that there were police outside. He said that he ran back up the stairs and into the kitchen where he began throwing heroin outside the window because he did not want anyone to find it in the house. At that point, he returned to the door and heard a noise that sounded to him as though someone were banging on the inner door of the house. He further said that the noise was different from the banging he previously heard the first time he came down the stairs. He then opened the door and surrendered. According to Agent Insco, the officers entered the house at 7:30 am.
After securing the defendant, the officers entered the house and performed a protective sweep to determine how many people were in the residence. Only Tammy Brown and her baby were found in the upstairs bedroom. Several guns were also found in the room. The officers questioned Tammy Brown and obtained her consent to search the house. Although Tammy Brown testified that she did not sign a consent form, she did admit that her signature appeared on the form, which was introduced into evidence. During the search, the officers located a locked safe. They obtained the combination from the defendant and opened it, finding cash. The results of the search, according to the receipt signed by Tammy Brown and introduced into evidence, yielded more than $14,000 in cash, drug paraphernalia, 36 grams of marijuana, 12 grams of heroin, 3 grams of crack cocaine, and four handguns. The defendant now seeks to exclude this evidence on several constitutional bases.
The defendant's initial brief argues that the actions of the officers at 4703 1/2 Baudin Street violated the "knock and announce rule" set forth by the United States Supreme Court in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914 (1995). During and after the hearing, the defendant also challenges the reasonableness of the FBI agents' search for the defendant claiming that their tactics at the three houses were unreasonable. Finally, the defendant challenges the agents' search at 4703 ½ Baudin street as being without consent, and in absence of any exigent circumstances. The government responds and argues that the police properly followed the knock and announce rule and that their actions inside the various locations were reasonable. Further, the government asserts that the police had valid consent to search the house at 4703 1/2 Baudin Street and had a reasonable belief that Tammy Brown could validly consent to a search of the house.
II. ANALYSIS
A. Reasonableness of the Execution of the Arrest Warrant
The first issue requiring resolution is whether the actions of the arrest team were reasonable when they entered the houses on North Conti Street, North Robertson Street, and Baudin Street. Both sides refer this Court to the Fifth Circuit's holding in United States v. Route, 104 F.3d 59 (5th Cir. 1997) as articulating the standard for police officers in executing an arrest warrant. The Route court noted that an arrest warrant permits "`the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances."` Id. at 62 (quoting United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977) (citations omitted)).
In this case, the arrest task force began their search for the defendant with the knowledge that his last known address was on North Conti Street. Agent Insco testified that no further checks were performed to determine whether the defendant resided elsewhere. However, the defendant's last known address was the logical place for them to begin their search, and no evidence was presented that would have led the police to conclude that the defendant resided elsewhere. The Court also notes that the officers did not break down Mrs. Merrill's door. Rather, the officers testified that they knocked on the door for at least ten minutes before she answered. The officers did not need Mrs. Merrill's consent to enter the house as they had a reasonable belief that the defendant was located in the house. See Route, 104 F.3d at 62 ("A valid arrest warrant carries with it the implicit but limited authority to enter the residence of the person named in the warrant in order to execute the warrant where there is "reason to believe' that the suspect is within."). Accordingly, the officers acted reasonably when attempting to execute the arrest warrant for the defendant on North Conti Street.
Once the officers left North Conti Street, they were still in search of the defendant. They had a reason to investigate his possible location. Their arrival at North Robertson Street was the logical progression of their search. Members of the task force had knowledge that the defendant's girlfriend occasionally resided with Ms. Coleman on North Robertson Street. Agent Insco testified that in his experience as a law enforcement officer, criminal suspects could usually be located with their girlfriends. Thus, the police were following the best lead they had in determining the defendant's location. At Ms. Coleman's apartment, as at Mrs. Merrill's, the police knocked on the door until it was opened. Furthermore, Ms. Coleman and Agent Insco testified that she gave the officers consent to search her apartment for the defendant. Finally, it is undisputed that Ms. Coleman gave the officers permission to force open the door to Tammy Brown's room to check for her presence. There is no evidence that the search exceeded the scope of her consent or the purpose for which they entered the residence.
Based on the knowledge acquired at North Robertson, the police determined that they would go to Baud in Street to question Tammy Brown and possibly apprehend the defendant. Once there, they employed the same techniques they had used on North Robertson and North Conti Streets. They only deviated from this course of action once bags of heroin were thrown out the window of the house. Once the defendant answered the door and surrendered to the police, they had fulfilled their search warrant. Again, the Court cannot conclude that the officers' actions were unreasonable. They were searching for a suspect and had a right to gather intelligence to achieve their objectives. The officers relied on their experiences and gathered information in affecting the search. Nothing they did violated the defendant's rights.
The Court also notes that the defendants' reliance on cases such as Route appears to be misplaced. Route and similar cases apply to facts where the police enter a residence to search for the arrestee and discover evidence that incriminates another person, who subsequently becomes a defendant. In this case, Merrill is named in the arrest warrant, not Mrs. Merrill. Thus, the Court finds that Route is inapplicable to this case, and, alternatively, that the officers' actions were reasonable. Accordingly, the Court finds the defendant's arguments regarding the officers' search for Mr. Merrill to be without merit. The Court now turns to discussion of the officers' conduct when they arrived at 4703 1/2 Baudin Street.
B. Knock and Announce Rule
18 U.S.C. § 3109 provides that an officer may "break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." The decisions of the United States Supreme Court and Courts of Appeals form the "guideposts" for interpreting the exigent circumstances that permit exceptions to the statute. See United States v. Ramirez, 523 U.S. 65, 73, 118 S.Ct. 992 (1998).
In Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914 (1995), the Supreme Court held that the "knock and announce" principle was part of the requirement that searches under the Fourth Amendment be reasonable. Id. at 928. The Court based its holding on the traditional foundation of the rule under the English Common Law and early-American law. Id. at 931-33. The Court noted that circumstances may arise where the rule would be inapplicable, such as where an officer was in pursuit of a fleeing prisoner, or where the destruction of evidence was likely; however, it left the issue of reasonableness to be determined by the lower courts.
The Supreme Court re-visited its decision in Wilson and the knock and announce rule in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416 (1997). In Richards, the Court reviewed a Wisconsin Supreme Court ruling that police officers were never required to knock and announce their presence when executing a search warrant in a felony drug case. Id. at 388. The U.S. Supreme Court unanimously reversed the per se rule, but upheld the search as reasonable. Id. The Court held:
In order to justify a "no-knock" entity, 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. at 394.
In Richards, the police knocked on the defendant's hotel door, but were recognized when
the defendant opened the door. The defendant then slammed the door shut and attempted to escape. The police broke the door down, apprehended the defendant, and found drugs in the room. The Court upheld the search citing the defendant's recognition of the police officers and the disposable nature of the drugs as justification for the officers' actions. Id. at 396.
In United States v. Jones, 133 F.3d 358 (5th Cir. 1998), the court discussed the amount of time that must elapse between the time the officers identify themselves and the time they effect a forced entry of a suspect's home. In Jones, it was undisputed that a delay of 15 to 20 seconds elapsed between the time the officers identified themselves and the time they entered the defendant's apartment to execute a search warrant. Id. at 360. The court noted that as a general rule, a delay of only 5 seconds was appropriate. Id. at 361. Nonetheless, the court declined to adopt a bright-line standard but noted that "[i]n drug cases, where drug traffickers may so easily and quickly destroy the evidence of their illegal enterprise by simply flushing it down the drain, 15 to 20 seconds is certainly long enough for officers to wait before assuming the worst and making a forced entry." Id. at 362.
In United States v. Cantu, 230 F.3d 148 (5th Cir. 2000), the Fifth Circuit considered whether the knock and announce rule applies to attempts as well as the actual breaking of a door to a house. Id. In Cantu, sheriff's deputies arrived at the defendant's mobile home to execute a search warrant and began to pry the door open without announcing their presence. When that attempt was unsuccessful, the officers then announced who they were and their intent to execute a search warrant. After a forty-five second delay, one of the officers broke a window, unlocked the door, and entered the mobile home. The court found that this search was unreasonable because the officers first attempted to break into the home without announcing themselves. Id. at 153. Further, the court found no factors to suggest that the officers knew that the defendant was armed or posed an immediate danger, or were aware of any attempts to destroy the drugs before the attempted entry began. Id.
Defendant Merrill argues that, under Cantu, the initial entry into the defendant's home was illegal because the officers first pried the security door open without any knowledge that the defendant was armed and dangerous or would attempt to destroy the drugs. However, the government contends that even though the officers did not initially announce their presence when they approached the residence, a sufficient amount of time elapsed [60 seconds] after which they did announce their presence and the time they began prying away the burglar bars.
The defendant's own testimony in this case defeats his arguments and supports Agent Insco's testimony. The defendant admitted that when he went downstairs a second time after throwing heroin out the window, he heard knocking on the inner door of the house. He further testified that this sound was different from the sound he initially heard. This testimony supports Agent Insco's testimony that the police did not begin knocking on the inner door of the house until after the heroin was thrown out the window.
Further, the fact that the agents did not announce their presence when they first approached the residence is immaterial because they certainly had exigent circumstances to begin a forced entry of the house when they observed plastic bags being discarded from a window of the house. These facts make this case analogous to the facts of Richards, supra. The Supreme Court in Richards upheld this search, where the police officers knocked but did not initially identify themselves, finding that it was reasonable to break the door down when the officers reasonably believed that the defendant was aware of their presence; the Court cited the disposable nature of the drugs as justification for this action. Richards, 520 U.S. at 395.
Similarly, in the present case, the officers had reason to believe that the defendant was aware of their presence when they saw bags being discarded from a window and heard someone running in the house. Thus, they were justified in attempting entry into the house. The exigent circumstances combined with the delay after announcing their presence supports their actions. Also, the analogy to Richards will not permit the defendant to argue that the initial knocking without identification constituted a violation of the "knock and announce rule" because the police did eventually identify themselves. Cantu is distinguishable from the present case because in this case the agents could articulate facts to show that the defendant was aware of their presence and the agents had knocked before attempting entry. Considering the foregoing, the Court finds that the defendant has not carried its burden of showing a violation of the knock and announce rule. Therefore, the Court turns to the defendant's final arguments concerning the search of the Baudin Street residence.
C. The Search of 4703 1/2 Baudin Street
The defendant attacks the Baudin Street search on two grounds: first, he asserts that the scope of the search exceeded the Chimel search incident to arrest exception to the Fourth Amendment; and second, he argues that Tammy Brown's consent to search was invalid. Under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969), the Supreme Court held that an officer, when making an arrest may search not only the person of the arrested individual, but also the area ""within his immediate control."` Id. at 763. of course, the search of the entire apartment would be invalid under Chimel, but another exception to the Fourth Amendment exists to permit "a protective sweep" of the apartment.
In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093 (1990), the Court distinguished Chimel and held:
[A]s an incident to the arrest, the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. . . . We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger.Id. at 334-36.
In this case, the officers standing outside the house testified that they heard what sounded like a "herd of elephants" running in the house when they began knocking on the door. Hearing such a sound, it would be difficult to discern whether one person or more were in the house. They then observed packages of heroin being thrown from the window. Further, the defendant himself testified that he answered the door holding a loaded weapon, which he dropped when he saw the police. Certainly, the officers at that point knew that drugs and weapons were on the premises. It is entirely reasonable for them to conduct a protective sweep to determine whether there was anyone else inside the residence, who could possibly use a weapon on the officers. The Court thus finds that the initial sweep of the house was a valid protective sweep as authorized by the Court in Buie. That search. as the defendant admits, found two weapons on the bedroom dresser that were in plain view. As such, they are clearly admissible under the protective sweep. The admissibility of the remaining evidence seized turns, then, on the validity of Tammy Brown's consent to search. In answering these issues, the Court must determine whether the police had a reasonable belief that Ms. Brown could consent to a search of the Baudin home and whether Ms. Brown voluntarily consented to such a search.
When the government seeks to admit evidence seized pursuant to a warrantless consensual search, the "government must prove by a preponderance of the evidence that consent was voluntary and effective." United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997). In Gonzales, the Fifth Circuit also stated that the government may prove that a third party gave consent to search by proving that the third party had "`mutual use of the property by persons generally having joint access or control for most purposes."` Gonzales, 121 F.3d at 938 (quoting United States v. Matlock, 415 U.S. 164, 171 n. 7, 94S.Ct. 988, 993 n. 7 (1974)). Further, the government need only show that the arresting officers "reasonably believed that the third party was authorized to consent." Id. at 938.
The defendant mistakenly argues that the "clear and convincing" standard of proof applies to determine whether consent was freely given, relying on United States v. Hurtado, 899 F.2d 371 (5th Cir. 1990). However, defense counsel fails to note that this is the panel decision in Hurtado. On rehearing en bane, the court reversed prior circuit precedent and determined that the preponderance of the evidence would apply in these cases. See United States v. Hurtado, 905 F.2d 74, 75 (5th Cir. 1990) (en banc).
The sole basis for the officers' belief that Ms. Brown resided at the Baudin Street residence was their knowledge that the phone number they obtained from Ms. Coleman's house could be traced to Tammy Brown at 4703 1/2 Baudin Street. During cross-examination by the government, Ms. Brown admitted that her name appears on the telephone and cable bills for that address. The defendant submitted the electric bill from Energy showing the addressee was Tammy Brown, Tammy Brown's brother. Although the government did not follow up beyond the telephone number, at best they would have found some bills in the name of Tammy Brown and some bills in the name of Tammy Brown. When the agents arrived at the house, Tammy Brown was sleeping with her infant in the house, and the agents found a baby's crib during their protective sweep of the house. This situation might well lead to a different conclusion if the police found Ms. Brown at the residence in the middle of the day, but having awakened her at 7:30 a.m., combined with the knowledge that her name was on the telephone bill, the police had reason to believe that Ms. Brown could consent to a search of 4703 1/2 Baudin Street. Finally, during her testimony, Tammy Brown never said that she told the officers that she did not live at the house on Baudin Street. In fact, Agent Insco testified that Tammy Brown told him that she did live there. Based on the totality of the evidence presented, the Court finds that the officers had a reasonable belief that Tammy Brown had access or control of the property and could consent to a warrantless search.
The next issue for resolution is whether the consent to search was validly obtained. The government introduced into evidence a consent form purportedly signed by Tammy Brown on September 11, 2002 authorizing a search of 4703 1/2 Baudin Street. Ms. Brown testified that she did not recall seeing the consent form or signing the form, or understanding that she was being asked to consent to a search of the house. She further testified that she was handcuffed to a chair in the house and the police questioned her, threatening to take her baby away if she did not permit a search of the house. During cross-examination, however, she did admit that the signature on the consent form was hers. The members of the arrest team who testified, Agent Insco in particular, stated that Ms. Brown was never handcuffed to a chair, and was never threatened with the loss of her child.
After reviewing the testimony of the witnesses and their demeanor on the stand, the Court credits the testimony of the law enforcement officers and finds that the consent to search was freely and voluntarily given. The testimony of Ms. Brown was too inconsistent with the other testimony presented, including the defendant's own testimony. First, she denied having signed the consent form, but admitted it was her signature on the form. Second, she testified that the initial knocking she heard when awakened was on the inner door of the house. As previously discussed, the testimony of the defendant and police officers is consistent that the police knocked first on the outer door and next on the inner door, only after the heroin was thrown out of the house. Therefore, Ms. Brown's testimony about invalid consent and not signing the consent form is not credible. As such, the consent to search 4703 1/2 Baudin Street was legally and validly obtained. Further, the evidence seized at the house is admissible.
III. CONCLUSION
In summary, the Court finds that the actions of the law enforcement officers in executing the arrest warrant on September 11, 2002 were reasonable. The Court further finds that the officers did not violate the "knock and announce" rule and that their initial search of the Baudin Street residence was a valid protective sweep. Finally, the Court concludes that the officers had a reasonable belief that Tammy Brown had authority to consent to a search of the residence and that she freely and voluntarily gave her consent. For all these reasons, the Court DENIES the defendant's motion to suppress the evidence seized on September 1, 2002.