Opinion
No. CR01-0050
November 5, 2001
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's October 1, 2001, motion to suppress evidence. The motion was referred to the undersigned United States Magistrate Judge for the issuing of a report and recommendation. The court held an evidentiary hearing on the motion on November 2, 2001, at which the defendant was present and represented by Raphael Scheetz. The government was represented by Assistant United States Attorney Daniel Tvedt. It is recommended that the motion to suppress be denied.
In the motion to suppress, the defendant contends that the police violated the Fourth Amendment when they took trash from his residence on February 2, 2001. He further contends that a search warrant executed at the residence on February 14, 2001, violated the state "knock and announce" law. Finally, he contends that a digital scale seized from his residence was not included in the inventory provided to him that day. He contends that the digital scale should be suppressed for that reason. The court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On February 2, 2001, Cedar Rapids Police Department police officer Melissa Henderson and Sgt. Robinson went to the defendant's apartment at 1446 5th Avenue SE. They went in a pick-up truck that they use weekly to pick up trash at suspected drug dealers' residences. Three bags of trash in two metal trash cans had been placed at the alley behind the defendant's apartment. Officer Henderson walked approximately four feet from the truck and put the three trash bags in the back of the pick-up truck. There were drug residue items in the bag that assisted in the acquisition of a search warrant for the residence. It is the practice of Sgt. Robinson to only pick up trash that is placed at the curtilage. That is, if the sanitation workers will not pick up the trash, neither will Sgt. Robinson.
A search warrant was secured for the defendant's residence on February 5, 2001. It was executed on February 14, 2001, with the Cedar Rapids Police Department Special Response Team (SRT) securing entry to the residence. Phil Hansen and Thomas Osterhaus of the SRT were among the approximately six other officers who made entry into the small upstairs apartment where the defendant resided.
Before entering the residence, Hansen pounded three times on the door and announced, "Police, search warrant, open the door." He then waited a couple of seconds, listened, pounded three more times, and again repeated, "Police, search warrant, open the door." Shortly thereafter, upon hearing no response, a battering ram was used to break in the door. The police forced the door open some time between five and ten seconds after first announcing their authority and purpose. This was done at approximately 1:40 p.m. on February 14, 2001.
Police officers executing a warrant found crack cocaine, marijuana, cash, a digital scale, and other items of drug paraphernalia. Sgt. Robinson left an inventory of things taken from the residence which included a reference to "paraphernalia" but no reference to the digital scale that had been seized. He testified that he believed that paraphernalia included the crack pipes, bong, razor blades, baggies, and the digital scale together with other items of paraphernalia that he found.
There was no significant involvement of federal law enforcement officers in the execution of this search warrant. The entry team as well as other officers executing the search warrant were all Cedar Rapids police officers. An earlier controlled buy of controlled substances from the defendant involved a State of Iowa Division of Narcotics Enforcement Officer who was also a member of a DEA drug task force. However, no federal officer participated in the securing or the executing of the warrant in question.
CONCLUSIONS OF LAW
Trash Search
The facts set forth above show a garden variety trash search for which the United States Supreme Court found no reasonable expectation of privacy. California v. Greenwood, 486 U.S. 35 (1988). The fact that the garbage was placed in trash cans for collection is of no significance. United States v. Redmon, 138 F.3d 1109, 1113 (7th Cir. 1998).
Knock and Announce
Because there was no significant federal involvement in this search warrant execution, the knock and announce requirement is found in Code of Iowa § 808.6. It provides:
The officer may break into any structure or vehicle or where reasonably necessary to execute the warrant if, after notice of his authority and purpose, the officer's admittance has not been immediately authorized.
Common law knock and announce principles are part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995); United States v. Hawkins, 102 F.3d 973, 976 (8th Cir. 1996). While a delay in responding to a knock and announce can create an inference that admittance has been refused, generally a delay in less than five seconds creates no such inference. In United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998), the Court summarized the authorities on this issue:
Generally, a delay of five-seconds or less after knocking and announcing has been held a violation of 18 U.S.C. § 3109. United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996) (officers waited 3 seconds at most and the Government failed even to allege that the officers harbored a concern for their safety); United States v. Lucht, 18 F.3d 541, 550-51 (8th Cir. 1994) (waiting 3 to 5 seconds before entering was not long enough); United States v. Rodriguez, 663 F. Supp. 585, 587-88 (D.D.C. 1987) (delay of 3 to 5 seconds was insufficient); United States v. Marts, 986 F.2d 1216, 1217-18 (8th Cir. 1993) (lapse of less than 5 seconds held not sufficient to infer refusal of admittance necessary to comply with § 3109); United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir. 1990) (forced entry only seconds after announcing the officers' authority and purpose must be "carefully scrutinized"); United States v. Mendonsa, 989 F.2d 366, 370 (9th Cir. 1993) (waiting 3 to 5 seconds was insufficient). However, when officers have waited more than 5 seconds, the courts have generally held that there was no violation of § 3109. United States v. Markling, 7 F.3d 1309, 1318 (7th Cir. 1993) (officers waited 7 seconds before starting to try to knock the door down); United States v. Spriggs, 996 F.2d 320, 322-23 (D.C. Cir. 1993) (officers waited 15 seconds before attempting to enter); United States v. Ramos, 923 F.2d 1346, 1355-56 (9th Cir. 1991) (after two requests and 45 seconds); United States v. Myers, 106 F.3d 936, 940 (10th Cir.) (agents waited 10 seconds before battering the door down), cert. denied, 520 U.S. 1270, 117 S.Ct. 2446, 138 L.Ed.2d 205 (1997); United States v. Knapp, 1 F.3d 1026, 1030-31 (10th Cir. 1993) (10 to 12 seconds was sufficient to wait); United States v. Gatewood, 60 F.3d 248, 250 (6th Cir. 1995) (no violation when officers waited about 10 seconds between announcement and entry).
In the present case, the upstairs apartment being searched was small. While the defendant argues that the police entered in less than five seconds, the court finds that it was clearly closer to a ten-second delay from the time that the police first announced their authority and purpose until the time the door was broken. There is no violation of the knock and announce rule here.
Search Warrant Inventory
The defendant contends that the digital scale found at his apartment should be suppressed for failing to include it in an inventory. He also contends that the police did not find it in his apartment. He, therefore, is moving to suppress a piece of evidence that he contends was not seized from a place where he has a legitimate expectation of privacy.
The defendant cites no authority to suggest that it is inappropriate to list numerous items of drug paraphernalia simply as "paraphernalia." At the hearing, the defendant argued that he was prejudiced by the failure to include the digital scale in the inventory because now he will be forced to testify at trial that there was no digital scale. If, as defendant contends, the scale was not seized from the apartment, then the defendant would be in the same position regarding testimony regardless of whether it was listed in the inventory or not. Accordingly, there is no prejudice as to the defendant as he alleges. This is not a constitutional question and is not grounds for suppression.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's October 1, 2001, motion to suppress (docket number 19) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).