03-3343 -- United States of America, Appellant v. James Donald Musa, Jr.

U.S. 10th Circuit Court of Appeals
(October 6, 2004; morning docket)


SUMMARY OF ORAL ARGUMENT

The U.S. Attorney's argument centered on the contention that the district court applied the wrong standard to the knock and announce rule. Several judges did not seem impressed with this argument and fervently attacked the government’s argument, suggesting that the government mischaracterized Tenth Circuit precedent and the district court’s decision below. One judge noted that the police officer in this case had a set of facts about the dangerous qualities of the defendant and, yet the police officer failed to pursue a no knock warrant. The government’s strongest argument was that the district court failed to appreciate the totality of the circumstances when deciding that the police officers did not have authority to enter the home without knocking and announcing. Several judges, however, did not seem to agree with the government’s argument that exigent circumstances existed such that the police officers could circumvent the knock and announce requirement.

The public defender’s argument focused on the theory that no exigent circumstances existed in this case. The police officers did not have sufficient information in their possession to warrant a no knock entry. Judge Hartz wanted to know why a reasonable person would not fear for his or her safety knowing that the defendant was only two months out of prison. The public defender argued that the district court looked at the totality of the circumstances to conclude that exigent circumstances did not exist. An informant told the police that the defendant kept drugs in his car, not his house, and the historical facts did not provide adequate knowledge to support a finding of exigent circumstances. The public defender’s strongest argument was that if the court were to rely merely on historical facts that it would be dangerously close to supporting a per se rule against the knock and announce rule, which the United States Supreme Court has explicitly prohibited.

CASE SUMMARY (prepared at Washburn Law)

PROCEDURAL HISTORY

This appeal comes before the Tenth Circuit on appeal from the United States District Court for the District of Kansas. The United States appeals the District Court’s order granting the defendant’s motion to suppress.

FACTS

Topeka police officers obtained a search warrant for the appellee’s home based on tips from a confidential informant. The informant had allegedly witnessed the appellee selling methamphetamine and marijuana on numerous occasions, and provided “detailed intelligence” regarding the appellee’s usual method for conducting the sales. The informant also provided details about the appellee’s criminal history, which included arrests and convictions for drug crimes, possessing a firearm, and battery on a law enforcement officer.

Officers executing the search warrant at appellee’s home did not knock and announce their presence before using a battering ram to smash in the front door. The subsequent search turned up approximately 18 ounces of methamphetamine, and the appellee was indicted on charges of possession with intent to distribute methamphetamine and conspiracy to distribute methamphetamine.

ISSUE

The issue on appeal is whether the district court properly suppressed evidence of narcotics distribution seized during a warranted search on the grounds that the government had violated the Fourth Amendment knock-and-announce rule. The court found that the officers lacked reasonable suspicion to justify a forcible, no-knock entry because there was insufficient evidence that the appellee was a danger to officers or that he might destroy evidence if they announced themselves prior to entry.

ARGUMENTS

» Appellants' Argument

The government first contends that the district court erred in applying a heightened standard to the no-knock entry. The government also claims that there was a sufficient amount of information available to the officers at the time of execution to constitute an exigency necessary to justify a no-knock entry. The exigencies asserted by the government were that the appellee could destroy the evidence and/or cause harm to the officers at the scene. The information used by the executing officers to come to this conclusion included the previous arrests of the appellee for crimes including drugs, violence, obstruction of justice, and battery of a law enforcement officer. The appellee had also been recently released from prison on a federal firearms conviction. The government contends that those factors put the officers in such a danger that a no-knock entry was justified. Furthermore, the officers knew that the appellee was on supervised release and they had information from a confidential informant that he did not wish to be caught at home with drugs. From this, the government asserts that it was likely that, without a no-knock entry, the appellee would likely have attempted to destroy the evidence before a search could be properly executed.

» Appellee's Argument

Appellee contends that the district court did not apply a heightened standard to the no-knock entry of the officers, but rather properly applied the standard of the Fourth Amendment. Furthermore, the appellee claims that the district court correctly held that the government was unable to make a sufficient showing of a reasonable suspicion to believe that appellee would destroy the evidence or threaten officers during the execution of a search warrant. The appellee admits that he has a history of arrests, but notes that arrests are less probative than actual convictions, and that any rate, criminal history alone is never enough alone to establish reasonable suspicion. In this instance, there was no specific evidence that the appellee was in possession of a firearm or that there were firearms on the premises. Additionally, the appellee asserts that the alleged methamphetamine was commonly kept in the glove box of his car, thus, making it impossible for appellee to destroy evidence in the residence.

WHY THIS CASE IS INTERESTING

The appellant contends that the district court's order suppressing evidence imposes a heightened exigency standard before allowing police officers to dispatch with the Fourth Amendment’s knock-and-announce rule. The appellee insists that the district court correctly applied existing case law in concluding that the evidence of exigency was insufficient to depart from well established safeguards for the execution of search warrants. The Tenth Circuit’s decision may ultimately resolve perceived conflicts in federal case law by further clarifying the specific parameters and circumstances justifying exceptions to the knock-and-announce rule.

INFORMAL CASE SUMMARY

Please Note: This informal case summary is not intended for official use and does not purport to be exhaustive of the issues or defenses presented by the parties.

The defendant was charged with two counts of conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. The district court granted the defendant's motion to suppress evidence seized and statements made during a night-time execution of a search warrant at the defendant's residence. The government appeals.

In executing the warrant the officers broke the front door with a battering ram. They neither knocked nor announced their presence before using force. The officers seized approximately 18 grams of methamphetamine from the house.

The district court rejected the government's argument that exigent circumstances warranted the no-knock entry. The court concluded that the government did not make a particularized showing that the defendant possessed a firearm or that there were weapons on the premises, that the defendant would respond to law enforcement activity with violent conduct, that the defendant was currently a methamphetamine user or given to violent conduct, or that the defendant was inclined to destroy evidence. The court rejected the government's contention that the mere fact that the defendant was on supervised release created a risk that evidence would be destroyed. The court also noted that the exigent circumstances relied on by the government were matters that were known to the government and that existed prior to the issuance of the warrant. Accordingly, the government could not rely on an objectively reasonable belief that an emergency situation existed.