Opinion
No. 04-40035-SAC.
August 24, 2004
MEMORANDUM AND ORDER
This case comes before the court on the following motions filed by defendant: request for information (Dk. 18); motion to suppress statements (Dk. 20); motion to suppress evidence (Dk. 21); and motion for return of property (Dk. 23). The government concedes that defendant's position is correct as to the motion to suppress pre-Miranda statements (Dk. 20) and the motion for return of property (Dk. 23). Accordingly, these motions shall be granted. The sole contested motion is the motion to suppress evidence (Dk. 21). The primary issue raised in that motion relates to the officers' alleged no-knock entry into the residence prior to searching it. An evidentiary hearing was held on August 24, 2004 regarding this issue.
Facts
On November 4, 2003, at approximately 6:40 a.m., law enforcement officers including deputies with the Shawnee County Sheriff's Department executed a search warrant at defendant's residence: 4923 N.E. Indian Creek Road in Topeka, Kansas. The search warrant was based on an affidavit prepared and signed by Deputy Phil Higdon on November 3, 2003. Defendant's residence, his business, and a storage facility were among seven locations authorized for search by warrants. The affidavit in support of the search warrants related numerous details regarding defendant's and his associates' involvement in drug-trafficking. The warrant authorized deputies to search for items related to drug-trafficking, including methamphetamine, marijuana, cocaine, drug paraphernalia, packaging materials, and documents relating to drug-trafficking. No challenge is made to the probable cause underlying issuance of the search warrant. The sole challenge is to the manner in which the search warrant was executed.
Deputy Glen Hawks of the Shawnee County Sheriff's office testified that the SWAT team and other officers arrived at defendant's residence to execute the warrant at approximately 6:40 a.m. on November 4, 2003. The warrant issued for defendant's residence did not authorize a no-knock entry. Deputy Hawks was given the task of counting the seconds after the first knock and announce and making sure that at least twenty seconds has passed before officers entered the residence.
Deputy Hawks stated that at approximately 6:42 a.m., Corporal Steve Evans with the sheriff's SWAT team began continuously pounding on the door and loudly announcing the deputies' presence at the door, at which time Deputy Hawks began counting the seconds. After 20 seconds had passed, Deputy Hawks notified Corporal Evans and Deputy Bowen of that fact. Deputy Bowen then used a battering ram device to attempt to enter the front door. After making five strikes during the 10 to 15 seconds immediately following the initial 20-second wait, Deputy Bowen and the SWAT team forcibly entered through the front door. Thus according to Deputy Hawks, entry did not occur until 30-35 seconds after the initial knock and announcement.
Deputy Phil Higdon of the Shawnee County Sheriff's office also testified. He was the case officer who conducted the 5:00 a.m. briefing of approximately 75 law enforcement officers who executed the seven search warrants on the day in question. He told the officers at the briefing that they were required to knock and announce their presence then wait at least twenty seconds before entering. He then went to defendant's residence and watched the execution of the search warrant. Although he did not count the seconds between the first knock and the officers' entry at defendant's residence, he was watching from the street and saw the officers comply with his instructions. Specifically, he heard the officers knock, heard them identify themselves, and heard them ram the door, all more than once, and all from the roadway near defendant's house.
Defendant's 16 year-old nephew, Olin Ashton, contradicted the officers' testimony in part. He testified that he lived with defendant on the date of the search. Immediately prior to the officers' entry into defendant's residence, he was on the main floor getting ready for school. He stated that he only had time to take one step after hearing a sound before officers entered the residence. When asked if it all happened very, very quickly, he responded "yes." He was approximately 10-15 steps from the door at the time, and could have heard if someone had yelled or knocked on the door, but he heard no knocking or yelling until after the entry was made.
It is undisputed that Deputy Hawks was the first to enter the residence. He announced the deputies' presence again, and saw one male, Olin, in the kitchen/dining room area, and told him to get down. Deputy Hawks then went upstairs, and located the defendant at the top of the stairs. Defendant was taken into custody and detained.
MOTION TO SUPPRESS EVIDENCE (Dk. 21)
Defendant seeks to suppress all evidence derived from the November 4, 2003 search of his home. Defendant contends, essentially, that the officers' execution of the warrant at nighttime and without having knocked and announced their presence renders the search unconstitutional. The government disputes the factual basis underlying defendant's assertions, contending that the officers waited an ample amount of time after having knocked and announced their presence, before entering the residence.
Knock and Announce
It is uncontested that officers did not request and the judge did not authorize a no-knock entry for the warrant issued for defendant's residence. Defendant argues that the officers entered his residence without knocking or announcing at all, and, alternatively, that the officers waited an insufficient period of time after knocking and/or announcing before entering. The government does not allege that officers had a reasonable suspicion of exigent circumstances, warranting a `no-knock entry,' but solely alleges that the knock and announce requirement was met.
The credibility of the witnesses is the determining factor in this case. The court finds that the testimony of the officers was generally consistent and persuasive. Although defendant's counsel pointed out many details which the officers did not recall, the omissions in the officers' testimony or their reports noted by the defendant involved insignificant details or innocent errors. Additionally, the conflicting testimony came from a child who admitted his interest in the matter, and who gave very few details concerning the events. Olin admitted on cross examination that he is aware that his uncle is facing serious charges, that he would rather not see him convicted, and that he had discussed the facts of the case with his uncle a couple of times. In weighing the testimony of the witnesses, the court has considered their appearance and manner while testifying, their means of knowledge, their apparent intelligence or ignorance, as well as their interest or want of interest in the outcome of the case.
Based upon the testimony of Deputy Hawks and Deputy Higdon, which the court fully credits, the sole issue is whether a 25-second or more second wait after the knock and announcement was reasonable. No bright line rule establishes the number of seconds an officer must wait before his entrance will be deemed reasonable.
When officers do knock and announce, . . ., "`the amount of time that officers must wait after knocking and announcing depends on the particular facts and circumstances of each case.'" Gallegos, 314 F.3d at 460 (quoting United States v. Jenkins, 175 F.3d 1208, 1213 (10th Cir. 1999)).
United States v. Cline, 349 F.3d 1276, 1289 (10th Cir. 2003). Although cases in this circuit do not generally uphold intervals of less than ten seconds in the absence of exigent circumstances, id, they routinely uphold intervals of approximately 20 seconds. See e.g., United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999) (holding a 14-to-20-second wait at 10 a.m. reasonable). The court finds that the officers waited more than 20 seconds, and that under the facts established in this case, this amount of time was reasonable.
Further, although no exigency existed prior to the officers' knocking on the door, the exigency that drugs could easily be destroyed ripened upon their knocking and announcing their presence. The United States Supreme Court has recently clarified that in such cases, the relevant inquiry in the reasonableness analysis is not the time it would take an occupant to open the door, but the time it would take an occupant to reach drugs which are normally kept near a toilet or sink where they can easily be disposed of.
[W]hen circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.
United States v. Banks, 540 U.S. 31 (2003) (reversing 9th Circuit's holding that forced entry was permissible only if there was an explicit refusal of admittance or a time lapse greater than a 15-to-20-second wait). "[E]xigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way." Id., 124 S.Ct. 521 at 526. "Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence . . ." Id.
Here, as in Banks, although the police admittedly arrived at defendant's door without reasonable suspicion of facts justifying a no-knock entry, the warrant authorized a search for methamphetamine, marijuana, and cocaine, which are easily disposed of. Announcing their presence started the clock running toward the moment of apprehension that defendant would flush away the easily-disposable drugs, prompted by knowledge the police would soon be coming in. Under these circumstances, the 20-plus second wait after knocking and announcing is quite reasonable.
Nighttime execution
Defendant also claims that execution of the warrant at night was unreasonable and in violation of the Fourth Amendment. Defendant asserts that the warrant was executed at approximately 6:30 a.m., before sunrise at 6:51 a.m., and that no exigency warranted a nighttime search. The government agrees that no exigency or reasonable suspicion of exigency warranted a nighttime search, but contends that this warrant, for which officers first entered defendant's property at 6:40 a.m. and began knocking on the door at 6:42 a.m., was not executed at night.
Common law supports the assertion that nighttime continues until sunrise, when daytime begins.
It is the general rule, in the absence of a statutory provision to the contrary, that the `nighttime,' within the definition of burglary, is, as was held at common law, a period between sunset and sunrise during which there is not daylight enough by which to a discern a man's face. (Citations omitted).
State v. Dougherty, 186 Kan. 820, 821 (1960).
However, the definition of "nighttime" is not based upon common law or state statutory definitions, but upon federal principles which govern the admissibility in federal court of evidence seized under a search warrant entirely state in character. See United States v. Watson, 61 Fed. Appx. 514, 520, 2003 WL 254311, *5 (10th Cir. 2003). In Watson, the court considered the issue whether a 7:00 a.m. search was conducted at "nighttime." In concluding that the search was not conducted at night, the court looked to Fed.R.Crim.P. 41. The Tenth Circuit stated:
Utah defines "nighttime" as one half hour after sunset to one half hour before sunrise. State v. Simmons, 866 P.2d 614, 617 (Utah 1993). However, even if the search was conducted during the "nighttime" under Utah law, federal constitutional requirements govern admissibility in federal court of evidence seized under a search warrant entirely state in character. United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir. 1979). Fed.R.Crim.P. 41, "is a useful guide because it implements the essentials of the Fourth Amendment." Id. at 1326. The rule in effect at the time of the search of Ms. Watson's residence defined "nighttime" as the hours between 10:00 p.m. and 6:00 a.m. Fed.R.Crim.P. 41(h) (the rule was restyled in 2002, but contains the same definition).Watson, 61 Fed. Appx. at 520 n. 3.
Fed.R.Crim.P. 41(a)(2)(B) no longer defines "nighttime," but instead defines "daytime" to be "the hours between 6:00 a.m. and 10:00 p.m. according to local time." Accordingly, the instant warrant, which both parties agree was executed after 6:00 a.m., was executed during the "daytime" according to the relevant definition of that term. Defendant's contention that nighttime execution of the search warrant rendered it unconstitutional fails. Nothing about the time of execution of the warrant renders the search unreasonable. The court finds it unnecessary to address other issues raised by the government, which assume a nighttime execution.
REQUEST FOR INFORMATION (Dk. 18)
Defendant, acting pro se, filed a request for information and to confront all witnesses at a time defendant was represented by counsel. The court cautions defendant against further such motions. See Tarter v. Hury, 646 F.2d 1010, 1014 (5th Cir. 1981) (holding that in the absence of extraordinary circumstances, a criminal defendant represented by counsel does not have a constitutional right to file every pro-se motion he wants to file in addition to his attorney's motions). At the evidentiary hearing, defendant's counsel admits that the matters requested in this motion fall within the general omnibus order or discovery order already in place. The court will therefore deny this pro se request as moot.
The court notes defendant's oral requests that the court order the government to provide certain documents within certain deadlines not stated in her motions. The court prefers that the parties communicate with each other regarding these details, and expresses its confidence that reasonable and experienced counsel should have no problem resolving such matters without the court's involvement.
IT IS THEREFORE ORDERED that defendant's motion to suppress pre-Miranda statements (Dk. 20), and defendant's motion for return of property (Dk. 23) are granted.
IT IS FURTHER ORDERED that defendant's request for information (Dk. 18) is denied as moot, and that defendant's motion to suppress evidence (Dk. 21) is denied.