Opinion
No. 02-40081-01/03-SAC
January 23, 2003.
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to reopen hearing and to reconsider defendant's motion to suppress evidence (Dk.66). Defendant Goodman joins in the motion. In support of the motion to reopen, defendant Shaw presented an affidavit and a statement under penalty of perjury. See Fed.R.Crim.P. 47 (permitting the use of affidavits in support of motions in criminal cases, including motions to suppress); 28 U.S.C. § 1746 (providing that an unsworn statement subscribed as true under penalty of perjury has the same force and effect as an affidavit). The government did not oppose the motion to reopen the hearing.
The court determined, based upon the documents attached to defendant's motion to reopen, that new evidence had been discovered after the suppression hearing, that defense counsel's failure to learn of that evidence was not caused by his own lack of diligence, and that the new evidence was not merely impeaching but was material to the principal issue involved in the suppression hearing. Accordingly, the court reopened the suppression hearing and an evidentiary hearing was held on January 14, 2003.
At the evidentiary hearing, the testimony of one witness was presented: Virginia Goodman, the woman who first saw the police officers on the morning in question. Her testimony contradicts in pertinent part the testimony of Deputy Ohman, whose testimony the court substantially relied upon in its previous order.
Deputy Ohman testified at the earlier hearing that on May 29, 2002, he planned to conduct a "ruse entry" by knocking on the door in street clothes in hopes that an occupant would open it, believing him to be someone other than a police officer. Once the occupant voluntarily opened the door, he and uniformed officers who had previously attempted to conceal their presence planned to announce "police, search warrant," and then enter the residence.
Deputy Ohman admitted that their entry did not go as planned because at approximately the same time he arrived at the front door, a white female just on the other side of the door, approximately two feet from him, turned and saw him. Believing that the occupant had observed him and possibly the uniformed officer near him, Deputy Ohman opened the storm door without having knocked or announced his presence. He then stepped out of the way, and held the door open for the uniformed officers to enter. "About a second" after Deputy Ohman opened the door, uniformed officers yelled, "Police, search warrant," and rushed on to the porch and into the trailer.
Largely based upon Deputy Ohman's testimony above, the court found that the futility exception had been met, as the deputy had a reasonable suspicion that the occupant saw the uniformed officer prior to his entry into the residence and was thus aware of the officers' presence and purpose prior to Deputy Ohman's opening of the door.
At the recent evidentiary hearing, Virginia Goodman, a sister of defendant Allisen Goodman, testified that she was in the living room that morning, with the outside door open, but the glass door closed. As she bent over to pick up a piece of paper from the floor, she noticed a man dressed in black at the door, which was approximately eight to ten feet away from her. When she first saw him, his left hand was on the door, which was already open approximately five inches, and his right hand held a gun pointed into the room. Although she saw no badge, she thought he was a police officer because of his gun and the "bullet proof vest" she believed he wore.
By the time she arose and put the paper down, he had already entered the room, with others behind him. She first heard them state "Police," when two or more officers were entering the living room. She did not see any uniformed officer before the man in black opened the door, but first saw a uniformed officer upon his entry into the living room approximately seven seconds thereafter.
The court welcomes the opportunity to examine its previous decision. The court is aware that a "ruse entry" may be lawful under certain situations. See United States v. Hill, 508 F.2d 345, 347 (5th Cir.), cert. denied, 422 U.S. 1009 (1975) (approving execution of a search warrant following a ruse entry); see generally Sabbath v. United States, 391 U.S. 585, 590 n. 7 (1968). Minimal police deception in criminal investigation does not per se offend the protections afforded by the Fourth Amendment, thus "the particular circumstances of each case govern the admissibility of evidence obtained by strategem or deception." Lewis v. United States, 385 U.S. 206, 208 (1966). See Lopez v. United States, 373 U.S. 427, 437-38 (1963).
Thus under certain circumstances an officer may, consistent with the fourth amendment, conceal his or her identity to obtain an invitation to enter a suspect's home. But here, the testimony of both the officer and the occupant is that the opening of the door was done by the officer, not the occupant, without any invitation to enter having been made. No ruse entry in fact occurred.
Where, as here, a court examines the actions of state law enforcement officers during the execution of a warrant, it must evaluate those actions in light of the Fourth Amendment's reasonableness requirement. Wilson v. Arkansas, 514 U.S. 927 (1995). Absent exigent circumstances, it is unreasonable for officers to enter a dwelling without first knocking and announcing their presence. Id. at 934.
The government bears the burden of proving exigency. United States v. Rhiger, ___ F.3d ___, 2003 WL 116128 (10th Cir. Jan 14, 2003). The court should "evaluate the circumstances as they would have appeared to prudent, cautious and trained officers." United States v. Erb, 596 F.2d 412, 419 (10th Cir.), cert. denied, 444 U.S. 848 (1979). The court's prior decision was based upon the useless gesture theory. Since the court's previous order, the Tenth Circuit has examined, and limited the application of, this theory. See United States v. Gallegos, 314 F.3d 456 (10th Cir. 2002) (finding "useless gesture" rationale inapplicable where officers "had absolutely no indication, prior to entering the residence, that Mr. Gallegos did not intend to voluntarily admit the officers.")
Upon reexamination of this issue, the court is not persuaded that the government has met its burden to show that any exigency existed sufficient to justify the officers' noncompliance with the general rule that law enforcement officers must knock and announce their presence and authority before entering a residence to execute a search warrant.
The government's contention is that because the occupant saw the plain clothes officer at the door and may have seen uniformed officers before the entry, compliance with the knock and announce rule would have been futile. The single fact known to the officers upon which the Government relies is the split-second occurrence in which the occupant saw Deputy Ohman at the door. No testimony was elicited as to any facts which would tend to show that Virginia Goodman's sighting of the plain clothes officer at the door or even her possible sighting of the uniformed officer on the porch would give rise to a reasonable suspicion on the part of the officers that knocking and announcing would be a useless gesture, or that they had any particularized basis for that suspicion.
Even if Ms. Goodman recognized Deputy Ohman or the officer beside him on the porch as police officers, her recognition would not have justified their reasonable belief that she actually knew of the reason for their presence. Although other occupants were arrested during the execution of the search warrant, Virginia Goodman was not, and she has not been shown to have had any knowledge of or participation in the events that gave rise to issuance of the search warrant. Thus any inference that she knew the officers were there to execute a search warrant is insupportable. Further, no facts show that the officers had any indication, prior to entering the residence, that Virginia Goodman, or any other occupant, did not intend to voluntarily admit the officers.
As a result, based on the information shown to have been within the knowledge of the officers when they arrived at the trailer to execute the search warrant, there is no factual basis for application of the useless gesture rationale. Accordingly, defendant's motion to suppress the evidence obtained during the execution of the search warrant is granted.
Defendant Shaw contends that all derivative evidence should be suppressed as fruit of the illegal entry pursuant to Wong Sun v. United States, 371 U.S. 471 (1963). Defendant alleges that the statements he made to officers approximately one hour after the illegal entry flow directly from the illegal entry and should be suppressed.
Defendant has the burden to show that the government violated his Fourth Amendment rights, and that a factual nexus exists between the illegality and the challenged evidence. See United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.), cert. denied, 531 U.S. 887 (2000). The burden then shifts to the government to prove that the evidence sought to be suppressed is not fruit of the poisonous tree, either by demonstrating the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct. Id.
Resolution of the "poisonous fruits" issue requires more than a determination that the officers' initial entry was illegal. Here, the sole fact shown by defendant to support any factual nexus between the illegality and the challenged evidence is the timing of defendant Goodman's interview, which began approximately fifty minutes after the initial entry. The record also shows, however, that the officers had a warrant to search the home, that defendants were taken to the Douglas County Jail or law enforcement training center for their interviews which gave rise to the statements they seek to suppress, that such statements were made under conditions which were not coercive, (as detailed in this court's prior order), and that defendants were properly Mirandized prior to giving such statements.
Under these facts, defendant has not met its burden to show any factual nexus between the illegality and their challenged statements. See New York v. Harris, 495 U.S. 14 (1990) (finding a statement obtained at the police station after an unconstitutional warrantless arrest in the home was not related to the underlying illegality and should not have been suppressed). Accordingly, defendant's statements bore an insufficient relation to the underlying infraction to warrant exclusion.
IT IS THEREFORE ORDERED that defendant's motion for reconsideration (Dk 66) is granted; that defendant Shaw's motion to suppress (Dk 35), which defendant Goodman has joined (Dk. 51), is granted in part and denied in part; and that the court's prior memorandum and order dated November 21, 2002, is modified only to the extent that it relates to defendant Shaw's motion to suppress evidence seized in the residence, and shall remain in effect as to all other matters addressed therein.