Opinion
Case No. 02-40077-01/02-RDR
December 23, 2002
MEMORANDUM AND ORDER
Defendants are charged in count one with possessing with intent to distribute crack cocaine within 1000 feet of a public school. Defendants are charged in count two with possessing a firearm — a semi-automatic pistol — in furtherance of the drug crime described in count one. This case is now before the court upon defendants' motions to suppress and other pretrial motions.
MOTIONS TO SUPPRESS
The motions to suppress raise two issues, a knock and announce issue and a Miranda issue.
Knock and announce
There is no dispute on the facts relating to the knock and announce issue. Narcotics investigators used a confidential informant to make four controlled purchases of crack cocaine at an apartment with the address of 2641 S.E. Colonial Drive, Topeka, Kansas. None of the purchases was made from either defendant in this case. On April 10, 2002, two days after the fourth controlled buy, the investigators applied for and obtained a warrant to search that address. They did not receive a "no-knock" warrant.
On April 11, 2002 at approximately 5:30 a.m., the warrant was executed. Shawnee County Deputy Sheriff Akim Reynolds knocked at the door of the residence. A woman inside asked who it was and Reynolds replied, "Mikey." The woman responded that it was too early. At that point, the officers executing the warrant used a passkey to gain entrance without further delay. As they went through the door they announced that they were sheriff's deputies executing a search warrant.
There were numerous adults and children in the apartment. Defendants were sharing a bedroom upstairs. Although they were guests and not the lessees of the apartment, their standing to bring this motion is not contested. Guns, drugs and drug paraphernalia were found in various locations of the apartment, including the room where defendants were apparently sleeping.
Defendants argue that suppression is necessary because the officers did not "knock and announce" before entering the apartment. The government, while admitting that the search warrant could have been executed in a better fashion, contends that it was still a reasonable approach for constitutional purposes.
The government concedes that this matter should be analyzed as a no-knock entry, even though entry was not forcible.
The knock and announce requirement under federal law is codified in 18 U.S.C. § 3109. This statute provides that a law enforcement officer may:
break open any outer or inner door or window of a house, or any part of a house, or anything therein, 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 a warrant.
The warrant in this case was issued by a state court judge and executed by county law enforcement officers. Under these circumstances, § 3109 does not directly apply. But, the Supreme Court has incorporated the requirements of the statute into the Fourth Amendment's reasonableness doctrine. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Therefore, the standards to apply are actually similar to those of § 3109. U.S. v. McCloud, 127 F.3d 1284, 1286 n. 1 (10th Cir. 1997); U.S. v. Smith, 63 F.3d 956, 962 (10th Cir. 1995) judgment vacated on other grounds, 516 U.S. 1105 (1996).
As determined in Richards v. Wisconsin, 520 U.S. 385, 394 (1997), the fact that this was a drug investigation does not by itself justify a no-knock approach, although such investigations "may frequently present circumstances warranting a no-knock entry." "Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." Id.
The circumstances which justify a no-knock entry should provide a substantial justification. In Richards, the Court noted:
While it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly minimized. As we observed in Wilson v. Arkansas, 514 U.S. 927, 930-32 (1995), the common law recognized that individuals should be provided the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry. These interests are not inconsequential.
Additionally, when police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry. . . . The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.
520 U.S. at 393 n. 5. See also, Jones v. United States, 357 U.S. 493, 498 (1958) ("[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home."); Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (midnight entry into a home was an "extremely serious intrusion"); Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (recognizing the common law's "strong aversion" to nighttime searches, particularly such searches of a home). Thus, the exigent circumstances should warrant "a reasonable suspicion [by the officers] that knocking and announcing their presence . . . would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards, 520 U.S. at 394-95.
In cases in which there was some indication that a firearm was present in the residence to be searched, this information alone has been held insufficient to justify the failure to knock and announce. See U.S. v. Moore, 91 F.3d 96, 98 (10th Cir. 1996); U.S. v. Bates, 84 F.3d 790, 795 (6th Cir. 1996); and U.S. v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993)); see also, U.S. v. Granville, 222 F.3d 1214, 1219 (9th Cir. 2000) (generalized fears that drug dealers keeps weapons is not enough to establish exigency). The Tenth Circuit has also stated in past cases that the exceptions to the knock and announce requirement should not swallow the rule. See Moore, 91 F.3d at 98; U.S. v. Stewart, 867 F.2d 581, 586 (10th Cir. 1989).
The government has asked the court to consider two cases where no-knock passkey entries were found to be reasonable: U.S. v. Sagaribay, 982 F.2d 906 (5th Cir.) cert denied, 510 U.S. 854 (1993) and U.S. v. Nolan, 718 F.2d 589 (3rd Cir. 1983). Obviously, a passkey entry does not destroy property, and this a factor in favor of reasonableness. However, we are not persuaded that Sagaribay and Nolan require the denial of suppression in this case.
Each case was decided before the Richards case which held that no-knock searches were not permissible carte blanche in drug cases. Of course, neither case is a Tenth Circuit case and Tenth Circuit law requires a showing of exigent circumstances beyond merely a reasonable belief that drugs and weapons would be present on the premises. Moore, 91 F.3d at 98-99 (10th Cir. 1996). This court has applied this precedent to sustain motions to suppress in two cases where searches violating knock and announce principles were performed in drug investigations. U.S. v. Flower, Case No. 00-40097-01, 2001 WL 1013317 (July 26, 2001) (no-knock search of a trailer home which contained a meth lab) and U.S. v. Holder, Case No. 98-40069-01, 1999 WL 359908 (May 7, 1999) (no-knock forcible entry of apartment from which crack sales had been made). The court does not believe any facts which would be accepted by the Tenth Circuit as "exigent circumstances" are described in Sagaribay. Finally, we note that both Sagaribay and Nolan involved daytime executions of warrants. In the daytime the privacy interests at stake are not quite as strong. Moreover, the warrant in Nolan was an arrest warrant for a person with a history of escape. That is another distinguishing factor from this case.
We do not believe the government has made a showing of exigent circumstances which provides a justification under the Constitution for the no-knock entry in this case. Nor has an argument been advanced against applying the exclusionary rule in response to the violation of the Constitution. Therefore, the court shall suppress the evidence obtained as a result of the search.
MOTION TO SUPPRESS STATEMENTS
The statements targeted by this motion were made by defendants during the search of the apartment. The evidence indicates that defendant Washington was questioned twice and defendant Moten was questioned once. From the testimony the court is convinced that each defendant listened to the Miranda warning prior to being questioned the first time. The failure to administer the warning again prior to questioning Washington the second time is not significant under the circumstances. See U.S. v. Andaverde, 64 F.3d 1305, 1312 (9th Cir. 1995) cert. denied, 516 U.S. 1164 (1996); McClain v. Hill, 52 F. Supp.2d 1133, 1140-41 (C.D.Cal. 1999); U.S. v. Vasquez, 889 F. Supp. 171, 175 (M.D.Pa. 1995). However, as it appears that the statements are not attenuated from the illegal method of entry when the search commenced, the court believes our prior ruling upon the knock and announce issue renders the motion to suppress the statements moot.
MOTION TO REVEAL IDENTITY OF CONFIDENTIAL INFORMANT
The argument as to whether to reveal the identity of the confidential informant in this case was discussed and decided in U.S. v. Wilson, 899 F. Supp. 521 (D.Kan. 1995). There, Judge Crow decided that prior purchases by a confidential informant at an address where a search warrant was executed two days later did not establish that the informant's identity was so relevant and helpful to the defense to overcome the privilege against disclosure. We cannot distinguish this case from Wilson and find that reasoning in Wilson to be persuasive. Therefore, the court shall deny the motion to reveal the identity of the confidential informant.
OTHER MOTIONS
At the hearing upon the motions in this case, the court held that the motion to disclose expert testimony would be granted and that such disclosure occur two weeks prior to trial. The court granted the motion of defendant Moten to join in the motions of defendant Washington. The court also denied defendant Moten's motion for time.
SUMMARY
In summary, defendant's motion to suppress the results of the search is granted. The motion to suppress statements is considered moot. The motion to disclose the identity of the confidential informant is denied. The motion of defendant Moten to join in the motions of defendant Washington is granted. Defendant Moten's motion for time is denied.
IT IS SO ORDERED.