Opinion
Case No. 04-40058-01-SAC.
July 28, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to suppress all items seized and statements made by defendant as a result of search of a residence at 1607 S.W. Clay. Also under advisement is defendant's motion to marry.
I. Motion to suppress
This case had its genesis in a search pursuant to warrant of 1607 S.W. Clay on February 6, 2004. Defendant's sole contention is that the no-knock manner in which the search warrant was executed renders the search illegal.
Knock and Announce Law — General Law
The search in this case was executed by state officers acting on a warrant issued by a state court. Thus, the officers' entry was legal if it met the reasonableness standard under the Fourth Amendment. See United States v. Mitchell, 783 F.2d 971, 974 (10th Cir.), cert. denied, 479 U.S. 860 (1986). In order to satisfy this reasonableness standard, the general rule is that police officers executing a warrant must announce their authority and purpose before entering a dwelling. See id.
As both the Supreme Court and the Tenth Circuit have recognized, however, "[o]fficers may . . . be excused from the usual 'knock and announce' rule if exigent circumstances attended the search." United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996). Exigent circumstances include "where there is a threat of physical violence or where evidence would be at risk of destruction in the event of an advertised entry." United States v. Watson, 61 Fed. Appx. 514, 519, 2003 WL 254311 (10th Cir. Feb. 5, 2003). See Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (exigent circumstances include those which would impede the officers' investigation).
Where the police have a reasonable suspicion that exigent circumstances exist, a no-knock entry is justified. As this court stated in United States v. Culpepper, 2003 WL 22801867, *2 (D. Kan. 2003):
In 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. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Richards, 520 U.S. at 394 (finding that officers had a reasonable suspicion that defendant might destroy evidence if given further opportunity to do so, based upon his apparent recognition of the officers combined with the easily disposable nature of the drugs.)
Hypothetical risk and generalized concerns are insufficient. Instead, the court requires a "determination in each case whether the facts and circumstances of the particular entry justified dispensing with the knock-and announce requirement." Richards, 520 U.S. at 394. "In reviewing a challenge to the no-knock or nighttime execution of a search warrant, we review the execution from the perspective of reasonable officers who are legitimately concerned not only with doing their job, but with their own safety. United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997)." United States v. Colonna, 360 F.3d 1169, 1176, (10th Cir. 2004). In determining whether reasonable suspicion exists, "a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference." Ornelas v. United States, 517 U.S. 690, 699 (1996). The court "judge[s] the officer's conduct in light of common sense and ordinary human experience." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (citation omitted). "This approach is intended to avoid unrealistic second-guessing of police officers' decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. Gutierrez-Daniez, 131 F.3d 939, 941 (10th Cir. 1997) (quotation omitted), cert. denied, 523 U.S. 1035 (1998). In making reasonable suspicion determinations, the court looks at the totality of the circumstances of each case. United States v. Arvizu, 534 U.S. 266 (2002).
The mere likelihood that drugs or weapons will be found at a particular premises does not justify a no-knock or nighttime execution of a search warrant. See Colonna, 360 F.3d 1169, citing United States v. Jenkins, 175 F.3d 1208, 1214 (10th Cir.), cert. denied, 528 U.S. 913 (1999). Instead, the government must articulate those factors which, viewed together, warrant 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.
No-knock factors recited in this affidavit
Corporal William Chapman of the Topeka Police Department prepared the affidavit in support of the search warrant for 1607 S.W. Clay. He testified that he asked for a no-knock warrant, but did not receive one. He did not attribute this to the judge's determination that a no-knock was not justified, however. Although Corporal Chapman set forth factors in support of a no-knock entry in his affidavit in support of the search warrant, he failed to include a line authorizing a no-knock entry on the warrant itself, unlike his usual practice in such cases. For that reason, a warrant was issued without no-knock authorization.
The affidavit in support of this search warrant recites the following factors in support of a no-knock entry:
1- On 02/13/2003, Travis Montgomery was stopped by Cpl. Gardner and was found to be carrying a loaded semi-automatic handgun in his coat pocket. Also found on his person was a vial of "wet."
2- "Wet" is a liquid substance used for dipping marijuana joints and is known to cause violent behavior.
3- Travis Montgomery is a self-admitted marijuana user.
4- Suspects selling crack cocaine from 1607 SW Clay keep the drugs on their person which allows for quick access for disposal.
5- The drugs being sold from this residence are pieces of crack cocaine. The pieces are the size of a pea and are easily disposed.
Dk. 15, Exh. B, p. 6.
Elsewhere, the affidavit states that Travis Montgomery had been recently identified by an informant as one of three individuals selling crack cocaine from 1607 SW Clay. The same informant stated his or her belief that Montgomery carries a handgun, although the informant did not see Montgomery with a handgun. Further, the affidavit states that Montgomery had a prior conviction for possession of marijuana, and had been found in May of 2003 at 1607 S.W. Clay during a previous search in which marijuana was found, and at that time admitted he uses marijuana.
Testimony of officers
Corporal Chapman testified to his knowledge that firearms are tools of the drug trade and that drug dealers commonly carry weapons to protect themselves, their product, and their profits. The Tenth Circuit has recognized that guns are "tools of the trade" in the distribution of illegal drugs. United States v. McKissick, 204 F.3d 1282, 1293 (10th Cir. 2000); see also United States v. Nicholson, 983 F.2d 983, 990 (10th Cir. 1993) ("Drug traffickers may carry weapons to protect their merchandise, their cash receipts, and to intimidate prospective purchasers."); United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993) ("Guns are a ubiquitous part of the drug trade, facilitating transactions by providing protection to dealers, drugs and money.")
Corporal Chapman additionally testified to his knowledge that small quantities of drugs are easily disposed of, and that it is common for occupants of a residence to try to get rid of their drugs when officers make an entry into the residence. Corporal Chapman said that in his experience, which includes executing hundreds of search warrants, it is very common for occupants to try to dispose of drugs, and that drugs are more likely to be disposed of when they are kept on one's person and in small quantities. He testified that each time a controlled buy had been conducted at 1607 S.W. Clay, the drugs had been kept on people, in pea sized-packages.
Corporal Chapman additionally testified to his belief that Travis Montgomery would likely be at 1607 S.W. Clay, and would be armed, at the time the search warrant was executed. This belief was based upon the facts that Montgomery used to live next door to 1607 Clay, that Montgomery might be living at 1607 Clay, that the confidential informant had recently seen Montgomery selling crack cocaine from 1607 S.W. Clay, that the same informant stated his belief that Montgomery carries a handgun, that Montgomery was an apparent user of "wet," which was known to cause violent behavior, that Montgomery had been carrying a loaded handgun when stopped by police approximately one year earlier, and that he had been found at 1607 S.W. Clay during a drug search in May of 2003.
After the search warrant was issued, but before it was executed, TPD Officer Kris Souma was responsible for conducting the pre-raid surveillance on the residence. He testified that immediately prior to and at the time of entry, he saw a black Lexus he believed was Montgomery's parked two houses to the south of 1607 Clay. Corporal Chapman testified that he was made aware of this information prior to entry.
Analysis
The statements made in the affidavit, coupled with the testimony of the officers regarding their knowledge of events on the night in question, are sufficient to raise an officer's reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous. The court declines to reach the government's argument that the no-knock entry is independently justified on the basis of a reasonable suspicion that evidence would be destroyed. See United States v. Berrocal, 232 F.3d 902, 2000 WL 1629437, *4 (10th Cir. 2000) (finding exigent circumstances where "it was reasonable to believe that [defendant] could easily destroy or hide the amount of evidence believed to be in his residence").
The court additionally finds it unnecessary to address the government's contention that even if the no-knock entry violated defendant's rights under the Fourth Amendment, suppression of the evidence is not the appropriate remedy. See United States v. Gillaum, ___ F.3d ___, 2004 WL 1396211, *5 (7th Cir. Jan. 20, 2004, amended June 23, 2004); but see United States v. Banks, 282 F.3d 699, 703 (9th Cir. 002), cert. granted, 537 U.S. 1187 (2003), reversed on other grounds, ___ U.S. ___, 124 S.Ct. 521 (2003), on remand, 355 F.3d 1188 (2004); United States v. Dice, 200 F.3d 978, 986-87 (6th Cir. 2000); United States v. Marts, 986 F.2d 1216, 1219-20 (8th Cir. 1993) (re: 18 U.S.C. § 3109).
II. Motion to Marry
Defendant has moved the court for permission to wed his fiancee while incarcerated. No response has been filed by the government. At the suppression hearing, defendant indicated his understanding that in the event this motion is granted, he will be responsible for all associated costs. This motion shall be granted.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 15) is denied.
IT IS FURTHER ORDERED that defendant's motion to marry (Dk. 9) is granted, and that none of the costs associated therewith shall be borne by the penal institution or any other governmental entity.