175 F. Supp.2d 62 (2001) | Cited 0 times | D. Maine | December 11, 2001


The Court now has before it Defendant's Motion to Suppress, in which heseeks suppression of all evidence seized from his residence and anyevidence derived from the search of his residence on April 12, 2001.Docket No. 15 (Motion to Dismiss), Docket No. 16 (Memorandum in Supportof Motion to Dismiss), Docket No. 27 (Post-Hearing Brief in Support ofMotion to Dismiss), Docket No. 29 (Reply Brief in Support of Motion toSuppress Evidence). Specifically, Defendant argues that the use ofinformation illegally obtained by a thermal imaging scan to procure thesearch warrant renders the search based on that warrant invalid. Afterredacting the information obtained from the thermal imaging device,Defendant further contends that the warrant application did not establishprobable cause. Defendant also argues that the search warrant wasunconstitutionally executed in violation of Fourth Amendment "knock andannounce" requirements. The Government opposes the motion, arguing thateven without the thermal imaging data, the warrant application containedsufficient evidence for the judge to have found probable cause.Alternatively, the Government argues that the use of a thermal imagingdevice was a good-faith exception to the exclusionary rule. With respectto Defendant's execution argument, the Government contends that thewarrant was constitutionally executed because the officers' failure towait longer than a few seconds before entering the premises was"reasonable" under the circumstances. See Government's Post-HearingBrief at 1.


Special Agent Thomas Slivinski of the Maine Drug Enforcement Agency(MDEA) submitted an Affidavit and Request for a Search Warrant on April12, 2001, containing the following information. A cooperating defendantin a marijuana trafficking case ("CD #1") provided information to MaineDrug Enforcement Agent Gerry Baril pertaining to the indoor cultivationof marijuana at 60 Academy Street in Auburn, Maine by an individual namedEric Holmes. C.D. #1 reported personal conversations during December2000 with an unidentified individual ("UI #1") who claimed to haveobtained marijuana from, and smoked marijuana with, Eric Holmes at hisresidence at 60 Academy Street. C.D. #1 also relayed informationobtained from another unidentified individual, a so-called mutual friendof C.D. #1 and Eric Holmes ("Friend"), who claimed to have been at theHolmes residence in December 2000 and to have witnessed a large growoperation. Both UI #1 and Friend allegedly told C.D. #1 that Holmes wascultivating and selling marijuana from his single-family residence wherehe lived with his wife Carol Holmes, who was not allegedly involved inthe cultivation activity inside the residence. Friend allegedly toldC.D. #1 that Eric Holmes was using several high-intensity discharge growlights, which were mounted on motorized tracks for automated movementover the marijuana plants that they were illuminating, and carbon dioxidegas to enrich the grow room environment for better plant growth. On orabout January 4 or 5, 2001, C.D. #1 reported that C.D. #1 and Frienddrove together to Eric Holmes' residence in Auburn, and C.D. #1 watchedFriend enter a blue, single-family residence across from 61 AcademyStreet (later identified as 60 Academy Street) for a brief stay. Friendallegedly returned and told C.D. #1 that Holmes had just harvested a cropof indoor-grown marijuana plants at his home some time during December2000 and had several big bags of processed marijuana stored in thehouse. Agent Baril determined that Eric Holmes lived at that addresswith his wife, Carol Holmes, and that Eric Holmes was a felon, who hadbeen convicted and sentenced in 1989 to ninety days in jail and fiveyears probation for possession of narcotics, and convicted in 1988 andsentenced to three years probation for strong-arm robbery. Aninvestigation was then commenced by the MDEA. Attempted trash pulls1were unsuccessful. Special Agent Kate Bernard of the United States DrugEnforcement Agency ("DEA") subpoenaed power records for periods of timebetween December 1998 and March 2001, which were analyzed by SpecialAgent Tony L. Milligan of the MDEA.

Agent Milligan also submitted an affidavit on April 12, 2001,containing the following information. After viewing the residence at 60Academy Street, Agent Milligan could not determine the source ofheating. Agent Milligan analyzed power consumption records from December1998 to March 2001 for 60 Academy Street and found the averageconsumption rate to be 1,906 kilowatt hours (kWh) per month, or 63 kWhper day, which is more than twice the national average. He found thelowest monthly consumption to be 725 kWh, recorded in April 1999, and thehighest to be 2,638 kWh, recorded in February 2001. He noted what hecalled "distinct cycles" during the highest power consumption peaks,including that the consumption was high but relatively uniform fromDecember 1998 to February 2000; however, in March 2000, the consumptiondoubled from 40 kWh per day to 81 kWh per day. In his affidavit, AgentMilligan described a typical grow cycle for indoor marijuana, which isthree months, and attached power consumption charts. The affiant claimsthat four such cycles occurred from March 2000 to May 2000, July 2000 toOctober 2000, November 2000 to January 2001, and February 2001 to April2001.

On April 10, 2001, Agents Milligan and Slivinski conducted a thermalimaging scan of the Holmes residence at 60 Academy Street in reliance onUnited States v. Woodward, 154 F. Supp. 2 d 83 (D.Me. 2001). AgentMilligan found the results of the scan to show evidence of a marijuanagrow operation.2 While conducting the scan, Agent Milligan noted inhis affidavit that he also observed a "super-bright" light emitting froma second-floor window through a one — to two-inch gap, although thelight source could not be identified because the shade was pulled nearlyall the way down. Gov't Ex. C at 9.

On April 12, 2001, Judge Paul Cote of the Maine District Court issued asearch warrant that authorized law enforcement officers to search thepremises at 60 Academy Street (the home of defendant Eric Holmes) inAuburn, Maine and to seize evidence relating to a suspected marijuanagrow operation. The warrant required that the executing agents provide"notice of their purpose and office" (otherwise known as a "knock andannounce" warrant), which the Government concedes requires the agents toprovide "pre-entry notice" before entering the premises. See Government'sObjection to Defendant's Motion to Suppress and Incorporated Memorandumat 1, n. 1.

Officer Dan LaChance was in charge of effecting the execution of thewarrant. Agents gathered on the day of the search for a preraid tacticalbriefing, where they were alerted by Officer LaChance that the warrantrequired them to knock and announce before entering. Tr. at 23. Agentsarrived at Defendant's residence to execute the warrant at approximately2:40 p.m. on April 12. The officers, including OfficerLaChance and AgentSlivinski, were unfamiliar with how people customarily gained entranceinto the residence. Tr. at 24, 33. They first approached a door on theside of the building that they "realized . . . was not the door thatprobably [the occupants] used to get inside the residence." Tr. at 12.Two agents nevertheless remained at that door. Id. The remaining sevenagents moved to the door at the front of the house, which they determinedwould be the appropriate point of entry. See Tr. at 12-13, Gov't. Ex.1. At that entrance, the storm door was resting in the open position butthe inner door was closed. Tr. at 13, Gov't Ex. 1. LaChance testified,"I was knocking on the door, I waited a couple of seconds . . . and atthe same time someone told me they believed it was an entry way with ashed."3 Tr. at 13. After waiting "three seconds, three to fiveseconds," LaChance testified, "I tried the door, it wasn't locked, so Iopened the door" and entered "thinking there would be another door insidethe house." Tr. at 15. It was then that the agents first announcedtheir identity and purpose; Officer LaChance testified, "[a]s soon as Iwalked in and saw the door and realized I'm pretty much straight shotinto the house, I yelled `Police! Search warrant.'" Tr. at 26.LaChance was immediately followed by others who, with weapons drawn, ranin through the kitchen area and into the living room, where they sawDefendant's father seated in a chair, watching television. Tr. at 18,27. The police handcuffed Defendant's father and proceeded to conductthe search of the residence. Tr. at 17, 19.

The agents searched the house and found a total of 164 marijuanaplants, a firearm, and various items of physical evidence believed by theagents to be associated with marijuana cultivation. During the search,Eric Holmes arrived at his residence. Tr. at 20. Much of thesubstantive physical evidence was found in a second-floor room. Tr. at19. Then the agents came upon a bolted door to the basement, and OfficerLaChance asked Eric Holmes for a key. Tr. at 20-21. Because he could notprovide one, the agents used a ram to break down the internal door andfound what they believed to be another "grow room" in the basement. Tr.at 21. Holmes was arrested at the scene.


A. Search Warrant: Probable Cause

The Fourth Amendment protects an individual's reasonable expectation ofprivacy against intrusion by the government. The test for determinationof a reasonable expectation of privacy is twofold: (1) the defendantmanifests an actual, subjective expectation of privacy and (2) theexpectation is one that society is prepared to recognize as legitimate.California v. Ciraolo, 476 U.S. 207, 211 (1986); Katz v. United States,389 U.S. 347 (1967). In Kyllo v. United States, 533 U.S. 27, 121 S.Ct.2038, 150 L.Ed.2d 94 (2001), the Supreme Court held that the use of athermal imaging device is a search within the meaning of the FourthAmendment. Upon a motion to suppress evidence obtained in execution of asearch warrant, it sometimes happens that "a showing is made for thefirst time that some of the information in the affidavit presented to thewarrant-issuing magistrate was acquired in a prior illegal search." 2W. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §11.4(f) at 287 (3d Ed. 1996). The First Circuit Court of Appeals, alongwith many other circuits, has determined that the search warrant "isnonetheless valid if it could have issued upon the untainted informationin the affidavit." Id. (citing, inter alia, United States v. Veillette,778 F.2d 899 (1st Cir. 1985)). The Court believes that the properprocedure is for this Court to examine the affidavits for probable causeafter excising the tainted averments. See, e.g., United States v.Herrold, 962 F.2d 1131, 1138, 1143-44 (3rd Cir.), cert. denied,506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992) (When a court reviewsan affidavit from which unconstitutionally seized evidence has beenexcised, it must independently determine if such probable cause remainswithin the affidavit that a neutral magistrate would have issued thesubject warrant).

Defendant argues that without the information obtained from the thermalimaging scan, there was insufficient probable cause to issue a searchwarrant for his residence. The Government responds that even withoutevidence obtained via the thermal imaging device, there is sufficientprobable cause in the information and affidavits to support the issuanceof a valid search warrant. Excluding the results of the thermal imagingscan, the magistrate judge was presented with information including: (1)the hearsay information of two unidentified sources who claimed to havebeen inside the Holmes residence, which was filtered through C.D. #1 (afirst-time cooperating informant) to Agent Baril and then to affiantAgent Slivinski; (2) Agent Baril's determination of Defendant's priorcriminal history; (3) the power consumption records at a house where thesource of heat was unknown; and (4) the observation of a "super-bright"light emanating through a one-to-two inch gap of a second-floor window.

Determining the existence of probable cause for issuing a searchwarrant requires a "totality of the circumstances" analysis. Illinoisv. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527(1983).

The sufficiency of a search warrant affidavit is appraised against well-established criteria: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

United States v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (citationsomitted). The original source of information leading to a search may beanonymous if it is accompanied by factors vouching for the reliability ofthat source's assertions. United States v. Burke, 999 F.2d 596, 598 (1stCir. 1993). In Burke, it was "significant that the source's informationwas based on personal observation." Id. Where an informant's informationis not first-hand, it may be less reliable because "an important indiciaof reliability is the fact that the informant's knowledge was based uponpersonal observation rather than hearsay." U.S. v. Cochrane, 896 F.2d 635,641 (1st Cir. 1990) (citing United States v. Harris, 403 U.S. 573, 581,91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971)). In Burke, the policeofficer affiant involved in executing the search warrant at issue hadpreviously executed a similar search warrant at the same house, which haduncovered an elaborate indoor marijuana growing operation. Burke, 999F.2d at 598. The affiant's knowledge that the defendant had not beenprosecuted for that offense also dovetailed with the anonymous source'sinformation that the defendant had "beat the charge" resulting from thatsearch. Id. The fact that both the source and the officer knew aboutthe defendant's criminal history served to corroborate the source'sreliability. Id. Finally, although the tipster did not provideinformation based on her own, personal observation, she had previouslyprovided reliable information; the Court of Appeals attached "weight" tothe fact that the confidential informant had provided information in thepast that led to three felony drug arrests and the seizure of severalpounds of marijuana. Id. at 599. In this case, although C.D. #1 sawFriend enter Defendant Holmes's residence, C.D. #1 neither personallyentered the residence, knew Defendant Holmes, bought marijuana from him,nor saw any of the alleged evidence of activity of the marijuana grow.This case is distinguishable from Burke because there is simplyinsufficient evidence supporting the reliability of the anonymouslyprovided information. C.D. #1's information is based entirely on hearsayfrom the anonymous sources, UI #1 and the unidentified mutual Friend.C.D. #1 had never before provided information to law enforcementofficers, and no one can vouch for the anomymous, unknown sources.

The "very specificity and detail with which [the affidavit] relates theinformant's first-hand description of the place to be searched or theitems to be seized" may disclose an adequate basis for evaluating theinformant's veracity. Id. at 6 (emphasis in original); see also UnitedStates v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (confidentialinformation provided to agent by informant with no criminal record andwho, from personal knowledge, described interior and contents ofresidence with such precision as to provide "considerable intrinsicsupport for the informant's capacity to convey reliable intelligencerelating to the criminal activity attested to in the affidavit."). TheScalia Court, however, also placed weight on the informant's lack of acriminal record or suspected current criminal activity: "[i]n the absenceof a prior record of reliability . . . where the informant was `not aprofessional' . . . but a private citizen with no known criminal record orother criminal contacts . . . the informant's story may be more easilyaccepted. . . ." Scalia, 999 F.2d 984, 987 (citations omitted, emphasisin original). In this case, C.D. #1 is a cooperating defendant whosesource of information is not his/her own personal knowledge, butinformation from anonymous individuals, one of whom — Friend— admits to buying marijuana from, and smoking it with, Defendant.C.D. #1's other source of information described Holmes' grow operation invery general terms, including allegedly having seen high-intensity growlights mounted on motorized tracks, carbon dioxide gas, and bags ofrecently harvested marijuana. Unlike the informant in Taylor, whoprovided a detailed, first-hand description, the informant in this case,C.D. #1, had no first-hand information regarding evidence of criminalactivity. Although the original sources of the information in this casegave first-hand descriptions to C.D. #1, C.D. #1 then relayed hearsayinformation to one officer, Agent Beril, who then told another officer,Agent Slivinski, who authored the affidavit, which included the nowthird-hand information; this is simply too attenuated to bolster thereliability of the original sources. The original sources of informationprovided no particular level of detail regarding the premises or thecriminal activity.

An agent's "extensive experience as a law enforcement officer . . .[may] buttress . . . informant-based indicia of probable cause."Taylor, 985 F.2d at 6. Prior experience with an informant permits anagent to vouch for the reliability of a confidential informant'sstatement based on personal knowledge. Id. C.D. #1 had not previouslycooperated with law enforcement officers in order for them to have aprior basis for determining his/her reliability or to permit priorveracity to corroborate his/her information. An affiant's knowledge of atarget's prior criminal history is also material to the probable causedetermination. Id. Corroboration of an informant's tip may take otherforms, such as a check of a target's criminal record, and surveillance isnot necessarily required in all circumstances.4 Scalia, 993 F.2d at988; see also Taylor, 985 F.2d at 6. The Agents did corroborate the tipby checking Eric Holmes's criminal record and determining that he had aprior drug conviction.

While there is unusually high power consumption for sustained periodsof time at the Holmes residence, the Court disagrees with AgentMilligan's characterization of the electric power consumption charts. InAgent Milligan's affidavit, he claims that the power records show fourdistinct three-month cycles from March to May 2000, July to October2000, November 2000 to January 2001, and February to April 2001. Anumber of factors could explain high usage or increases in usage, such aschanges in the number of people living in the residence, use ofelectrically powered heating and cooling equipment. From the power usagecharts submitted with the affidavit, it appears to the Court that theremay possibly be two spikes, one from March to June 2000 and one fromNovember 2000 to February 2001, which are both periods longer than threemonths. The Court also notes that if the marijuana cultivation werecontinuous, e.g., if different plants were in different stages of growthat different times, the records might not indicate "distinct spikes" atall, but a more sustained seemingly abnormally high usage, which wouldappear consistent with the records in this case. Surveillence of theresidence on more than, what appears from the record to be, a couple ofoccasions may have eliminated some of the possible explanations for theunusually high use of electric power.5 The force of the electricpower records alone does not persuade the Court of the probability of amarijuana grow.

The Court is also concerned about the import of what Agent Milliganstated in his affidavit was a "super-bright light emitting from [aone-to-two inch gap in] a window on the second floor." Gov't Ex. C.Agent Milligan did not testify at the suppression hearing. AlthoughAgent Slivinski was present when the light was observed — on thenight the thermal imaging scan was performed — he neither putanything about the light in his affidavit nor testified about theappearance of the light except to say, "we saw what would be grow lights."Tr. at 36. Given that there was no testimony about the illuminatorypower of grow lights, this conclusory statement does not assist the Courtin determining the weight to give it or Agent Milligan's statement thatthe light was "super-bright."

Some of the information gained in the invesigation dovetails to bolsterthe reliability of the information provided by the original, anonymoussources. That is, that two unidentified sources claimed that Eric Holmeswas cultivating marijuana in his home, the alleged presence of what anofficer took to be grow lights, and the criminal history check, whichshowed Holmes had previously been convicted of a drug offense. Given thefact that the Court finds the anonymous sources' information to be ofmarginal reliability, the degree of dovetailing does not createsignificant indicia of reliability. Accordingly, after expunging theinformation obtained from the thermal imaging device, the Court concludesthat there is insufficient evidence to support probable cause for theissuance of a warrant to search Defendant's residence.

B. The Leon Exception

The inquiry does not end there, however, because the Government arguesthat information obtained from the use of the thermal imaging device,although a search within the meaning of the Fourth Amendment, may stillbe considered, under Leon, because the officers relied in good faith onthe search warrant, which was based, in part, on acceptance of theconstitutionality and validity of the warrantless use of a thermalimaging device. See United States v. Leon, 468 U.S. 897, 104 S.Ct.3405, 82 L.Ed.2d 677 (1984). Defendant argues that Leon is notapplicable to this case. In Leon, the Supreme Court recognized "agood-faith exception to searches conducted pursuant to warrants." Id.,468 U.S. at 924, 10 4 S.Ct. at 3421. The Court of Appeals for the FirstCircuit stated, in United States v. Curzi, 867 F.2d 36, 44 (1st Cir.1989), "this court has not recognized a good-faith exception in respectto warrantless searches." The Court found that Leon's good-faithexception was not applicabile as an exception to the exclusionary rule,in Curzi, where the government conducted a warrantless search claimingexigent circumstances, rather the Court reiterated that Leon only appliedto searches conducted in good-faith reliance on a warrant or a statutelater declared to be unconstitutional.6 Id., 867 F.2d at 44-45. At aminimum, the exception "will not be applied unless the officers executingsearch warrants act within the scope of the warrants and abide by theirterms." Curzi, 867 F.2d at 44. Because the warrant here was issuedprior to the Supreme Court's holding in Kyllo, 533 U.S. at ___, 121 S.Ct.at 2043, 150 L.Ed.2d 94, that the use of a thermal imaging deviceconstitutes a search under the Fourth Amendment, the officers, affiants,and issuing judge relied on then-current caselaw holding that thermalimaging was not a search under the Fourth Amendment. See Woodward, 154F. Supp.2d at 87.7 The unconstitutional execution of the warrantrenders such a discussion and the resolution of the issues it generates,see n. 6 supra, moot. Because the agents did not "abide by [the] terms"of the warrant, the Court need not discuss Leon's applicability or thevalidity of the warrant further. See infra Section C.

C. Execution of the Warrant

Defendant argues that the agents failed to properly knock and announcetheir presence and to wait a reaonable time before entering hisresidence. In Kyllo, the Supreme Court reiterated, "[w]e have said thatthe Fourth Amendment draws `a firm line at the entrance to the house.'"Kyllo, 533 U.S. at ___, 121 S.Ct. at 2046, 150 L.Ed.2d at 106 (2001)(citing Payton, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639(1980)). The Government concedes that the search warrant in this caserequired the agents to knock and announce their presence.8 TheGovernment concedes that an officer must wait a reasonable period of timebefore making an entry, and that delays of five seconds or less aretypically unreasonable. See Government's Post-Hearing Brief at 3, UnitedStates v. Dice, 200 F.3d 978, 983 (6th Cir. 2000); United States v.Sargeant, 150 F. Supp.2d 157, 160 (D.Me. 2001 Singal, D.J.) (holding thatthe exclusionary rule applies to knock-and-announce violations). TheGovernment argues that the failure to knock and announce in thissituation, however, was not unreasonable.

The Supreme Court held in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct.1914, 131 L.Ed. 2d 976 (1995), that the circumstances allowing officersto enter before waiting a reasonable period of time normally involvecountervailing law enforcement needs, such as the need to prevent thedestruction of evidence or to prevent violence. While an unannouncedentry can certainly be reasonable under appropriate circumstances, thecases cited by Government are inapplicable here. The warrant issued hererequired a knock and announce and a reasonable wait prior to entry.Although the common law of Maine "does not prescribe a precise rule as tohow long a police officer must wait after knocking and announcing beforehe may enter a residence . . ., [c]ourts rely on the Fourth Amendment'sstandard of reasonableness" to determine whether a search wasconstitutional. Sargent, 150 F. Supp.2d at 160 (citing United States v.Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998)).Officer LaChance knocked at the front door, waited two to five seconds,and then, he testified, ". . . I tried the door, it wasn't locked, so Iopened the door and once inside that door . . . I looked to the left."Tr. at 15. Once inside the home, Officer LaChance immediately recognizedthat the entry way led directly into the home and then, for the firsttime, the agents announced their identity and purpose. According toLaChance's admission, he didn't announce his presence until he was insidethe residence: "As soon as I walked in and saw the door and realized I'mpretty much straight shot into the house I yelled `Police! Searchwarrant." Tr. at 26. In Sargent, the Court recently held that policeconducted a de facto no-knock entry to an apartment when they smasheddown the door after waiting only five seconds for a response to theirannouncement of presence and intent to enter. See Sargent, 150 F.Supp.2d at 161. In reaching this conclusion, Judge Singal noted thatmost courts faced with a delay of less than five seconds have found it anunreasonably short time. Specifically, the Court stated that, "[a]bsentexigent circumstances, `a delay of five-seconds or less after knockingand announcing has been held' to be an unreasonably short period oftime." Id. at 160 (quoting United States v. Jones, 133 F.3d 358, 361(5th Cir. 1998) (collecting cases)); see also, United States v. Lucht,18 F.3d 541, 550-51 (8th Cir. 1994). This Court agrees.

The caselaw in the First Circuit further supports the conclusion thattwo to five seconds is not a reasonable wait before entering a residencewith a knock and announce warrant.9 The Court of Appeals for theFirst Circuit has held that ten seconds is not necessarily anunreasonable wait before entering with a knock and announce warrant. SeeUnited States v. Garcia, 983 F.2d 1160 (1st Cir. 1993) (holding that aten-second wait with a knock and announce warrant was not, as a matter oflaw, too short where officers faced exigent circumstances). In UnitedStates v. One Parcel of Real Property, 873 F.2d 7 (1st Cir. 1989), theCourt of Appeals held that a five-to ten-second wait with a knock andannounce warrant was not too short when accompanied by previous knocksand shouts at another door by another police officer. Unlike theofficers in One Parcel who knocked at another door prior to entering thehome from a different entrance, the agents here failed to properly knockor announce their presence at either door. Under these circumstances, atwo — to five-second delay before entering the home is not the typeof action that is "reasonable" for police officers to take.

The Court finds that the delay of only two to five seconds without theofficers identifying themselves is a de facto no-knock entry. TheSupreme Court stated, in Ramirez, 523 U.S. at 65, 118 S.Ct. at 994, 140L.Ed.2d 191 (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct.1416, 1421, 137 L.Ed.2d 615 (1997)), that officers must possess"reasonable suspicion" in order to conduct a no-knock entry. The SupremeCourt held that "`[i]n order to justify a `no-knock' entry, the policemust have a reasonable suspicion that knocking and announcing theirpresence, under the particular circumstances, would be dangerous orfutile, or that it would inhibit the effective investigation of the crimeby, for example, allowing the destruction of evidence.'" Ramirez, 523U.S. at 70, 118 S.Ct. at 996) (quoting Richards, 520 U.S. at 394, 117S.Ct. at 1421). Although the Constitution creates a "presumption infavor of announcement," the Court of Appeals for the First Circuit hasheld that this presumption yields under certain circumstances, includingthose "presenting a threat of physical violence," or when police have a"`reasonable suspicion' that knocking and announcing would be dangerous. . . to the purposes of the investigation." United States v. Hawkins,139 F.3d 29, 32 (1st Cir. 1998) (quoting Wilson, 514 U.S. at 936, 115S.Ct. 1918-19 and citing United States v. Ramirez, 523 U.S. 65, ___, 118S.Ct. 992, 996, 140 L.Ed.2d 191 (1998)). This postulate also yields"where police officers have reason to believe that evidence would bedestroyed if advance notice were given." Wilson, 514 U.S. at 935-36, 115S.Ct. 1914. The Court of Appeals for the First Circuit has reiteratedthe standard to determine whether exigent circumstances excusenoncompliance with the knock-and-announce rule as one of "reasonablesuspicion" based on the particular circumstances of the case. SeeHawkins, 139 F.3d at 32 (quoting Richards, 520 U.S. at 394, 117 S.Ct.1416 and Ramirez, 523 U.S. at ___, 118 S.Ct. at 995).10 In Hawkins,the police's no-knock entry "was not a spur of the moment decision by theexecuting officers" because the search warrant had been issued as such bya judicial officer based on the attesting police officer's personalknowledge of the defendant's record of violent convictions, a recentarmed action, and the officer's suspicion that the defendant was aware ofpolice interest in him. Id. Furthermore, whenever the reasonableness of ano-knock entry is challenged, the police must demonstrate the existenceof reasonable suspicion to justify an unannounced entry. See Wilson, 514U.S. at 936, 115 S.Ct. 1919. The Court agrees with Defendant that thisde facto "no-knock" entry was not reasonable under the circumstances ofthis case.

The Government cites to cases in which courts have recognized a"useless gesture" exception to the knock and announce rule whereoccupants have actual advance knowledge of the impending raid. SeeMiller v. United States, 357 U.S. 301, 310 (1958); United States v.Nicholas, 319 F.2d 697, 698 (2d Cir. 1963). That is not this case. TheGovernment fails to articulate any reason explaining why the agents mayhave had a reasonable suspicion that waiting more than two to fiveseconds before deciding to enter would have been "useless" in this case.Although Defendant's father was sitting in a chair, watching television,there is no evidence in the record that the agents heard the televisionbefore entering the house or found the noise from inside the residence tobe so loud that any occupant could not have heard their knock. In fact,the Government strains credulity in arguing that two to five seconds wasa reasonable amount of time to wait in order to give Defendant's fatheran opportunity to voluntarily answer the door — especially if itwere an outer door. The Court agrees with Defendant's characterizationof the law on this point, which is that the "reasonableness" of an entry"must be viewed in light of `what the officers had reason to believe atthe time of their entry. . . .'" United States v. Daoust, 728 F. Supp. 41,50 (D.Me. 1989), aff'd., 916 F.2d 757 (1st Cir. 1989) (quoting Ker v.California, 374 U.S. 23, 40-41 n. 12, 83 S.Ct. 1623, 10 L.Ed.2d 726(1963))(emphasis in Daoust). Furthermore, in Kyllo, the Supreme Courtreiterated the importance of a citizen's privacy in his home: "there iscertainly no exception to the warrant requirement for the officer whobarely cracks open the front door and sees nothing but the . . . rug onthe vestibule floor. In the home . . . the entire area is held safe fromprying government eyes." Kyllo, 533 U.S. at ___, 121 S.Ct. at 2045, 150L.Ed.2d 94. The Supreme Court has been unwilling to hold that privacyrights in the home

`are to be measured in fractions of inches.' But [that] decision [did] not turn upon the technicality of a trespass upon a party. . . . It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said long ago bears repeating now: `It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.'

Silverman v. U.S., 365 U.S. 505, 512, 81 S.Ct. 679, 683 (quoting Boyd v.United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746(1886)). The only basis asserted by Government is that Officer LaChanceopened the door upon hearing someone from behind him say "this was just anentry or breezeway to the house." Tr. at 14. At the time of theirentry, the agents had no information about the interior layout of thehouse. Moreover, the agents did not even allege that they believedknocking or announcing would be a useless gesture because of loudtelevision noises or any other articulated reasonable suspicion that ano-knock entry was warranted. The Court has looked at the photograph ofDefendant's house and finds that Officer LaChance's stated belief thatthe outside door would not lead directly into the home was simply notreasonable at the time of entry, which is the point at which it must begauged. The Court, therefore, finds that the agents' actions in enteringthe residence before waiting more than a couple of seconds was notconstitutional.


Accordingly, the Court ORDERS that Defendants' Motion to Suppress be,and it is hereby, GRANTED.

1. A "trash pull" is when officers attempt to inspect the contents ofa target's trash for evidence of criminal activity. In this case, AgentSlivinski stated in his affidavit that "the trash was kept on the porchprior to trash day and was inaccessible . . . without entering thecurtilage." Govt. Ex. B at 5-6.

2. The thermal imaging scan produced a reading indicating that thetemperature of the surface area of the front second floor wassignificantly higher than all of the remaining sides and levels of theresidence and that substantially more heat was escaping from that areathan any other part of the house. Four images were prepared andsubmitted with the affidavit, including imaging of a neighbor's home forcomparison. Other similar structures in the neighborhood were scannedand did not exhibit the same elevated temperature as the targetresidence's second floor. Gov't Ex. C.

3. As LaChance knocked, he testified that he heard an agent frombehind him say "this was just an entry or breezeway to the house." Tr.at 13-14.

4. A police officer's knowledge may corroborate an informant'sawareness of a target's prior criminal activity. Burke, 999 F.2d at598. Although Agent Baril ascertained Defendant Holmes's prior drugconviction, neither C.D. #1 nor his/her sources knew about Holmes'scriminal record. Additionally, local authorities had no formerinteractions with Defendant or his residence and no information about himother than obtaining his criminal history from another state.

5. Officer LaChance testified, "Agent Slivinski had been by [theHolmes residence] a few times." Tr. at 22.

6. The Court has not been able to find any case in this Circuitapplying Leon where the basis of officers' reliance is a prior courtdecision on precisely the same issue as in the case before the decidingcourt, which decision has subsequently been overturned and its' reasoninginvalidated. This Court confesses discomfort at the thought ofpermitting the consideration of evidence, even under Leon, that theSupreme Court has recently ruled to be the subject of an unconstitutionalsearch and seizure.

Supreme Court cases after Leon do not address searches based onwarrants where the caselaw or legal precedent supporting them has beenreversed or overruled, but only cases where reliance is on a statute orwarrant which is later invalidated. In Massachusetts v. Sheppard,468 U.S. 981, 990, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), a companioncase to Leon, the Supreme Court held that the exclusionary rule would notbe applied to suppress the fruits of a search warrant upon which policeofficers placed objectively reasonable reliance, based on the issuingjudge's advice that all necessary clerical changes had been made in thedefective warrant form. In Illinois v. Krull, 480 U.S. 340, 358, 107S.Ct. 1160, 1171-72, 94 L.Ed.2d 364 (1987), the Supreme Court extendedLeon's good-faith exception to officers' reliance on a statute, whichauthorized warrantless administrative searches, ultimately found toviolate the Fourth Amendment. More recently, in Arizona v. Evans,514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the Supreme Court heldthat evidence seized in violation of the Fourth Amendment as a result ofclerical errors of court employee, which caused incorrect computerrecords, fell within the good-faith exception to the exclusionary rule.

The cases closest to the issue, which the Court has found from otherCircuits discuss applicable legal standards at the time of the search andfocus on why suppression will not foster deterrence. In United Statesv. Henderson, 746 F.2d 619, 625 (9th Cir. 1984), the Court of Appeals forthe Ninth Circuit upheld, under Leon's good-faith exception, a searchwarrant whose issuance was based on that Court's prior holding thatbeeper monitoring was not a search and required no warrant, which waslater held by the Supreme Court, in United States v. Karo, 468 U.S. ___,104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), to be a search requiring awarrant. Because the search warrant in that case "was based on aprobable cause determination that comported fully with applicable legalstandards at that time . . . the agents reasonably relied on that[defective] warrant when they searched [defendant's] house and discoveredthe controverted evidence." Henderson, 746 F.2d at 625. The Court ofAppeals for the Tenth Circuit, in United States v. Rowland, 145 F.3d 1194,1207 (10th Cir. 1998), stated that "at the time the warrant was issuedand executed, this circuit had not yet ruled on the constitutionality ofanticipatory warrants and had not set out conditions on the validity ofsuch warrants. Given the unsettled state of the law, it was notunreasonable for the officers to rely on the magistrate's authorization."That Court referred to the holding in United States v. Cardall,773 F.2d 1128, 1133 (10th Cir. 1985), wherein the Court stated "that inconsidering the Leon good-faith principles `it must . . . be rememberedthat the knowledge and understanding of law enforcement officers andtheir appreciation for constitutional intricacies are not to be judged bythe standards applicable to lawyers.'" Id., 145 F.3d at 1207-08. TheCourt of Appeals for the Third Circuit, in Gluck v. United States,771 F.2d 750 (3d Cir. 1985), upheld a search where IRS agents "acted ingood faith reliance on a facially valid Rule 6(e) order issued by aUnited States District Court." Id. at 758. A subsequent Supreme Courtdecision, United States v. Baggot, 463 U.S. 476, 103 S.Ct. 3164, 77L.Ed.2d 785 (1983), held that such an order would not be permitted, butthe Court of Appeals found that the Baggot decision was not subject toretroactive application and upheld the search.

Reliance upon retroactivity jurisprudence, however, opens complex newvistas of analysis which do not necessarily dictate a clear result.See, e.g. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334(1989) (holding that newly declared Constitutional rules should beapplied retroactively); United States v. Peltier, 422 U.S. 531, 95 S.Ct.2313, 45 L.Ed.2d 374 (1975) (holding that another Supreme Court decisionfinding that a particular warrantless search lacked probable cause andcontravened the Fourth Amendment would not be applied retroactively todefendant's case even though it was pending on appeal on date thedecision was announced). In their dissent to the Krull decision, JusticesO'Connor, Brennan, Marshall, and Stevens succinctly describe the Court'srecent retroactivity jurisprudence, notwithstanding the majority'sapplication of the Leon good-faith exception to that case. In Griffithv. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), theCourt held that "`basic norms of constitutional adjudication' andfairness to similarly situated defendants, require that we give ourdecisions retroactive effect to all cases not yet having reached final,and unappealable, judgment." Illinois v. Krull 480 U.S. 340, 368, 107S.Ct. 1160,1176-77 (citing Griffith, 479 U.S. at 322, 107 S.Ct. at 713).But see, United States v. Bowen, 422 U.S. 916, 919, 95 S.Ct. 2569, 2572(1975) (stating "The Border Patrol reasonably relied on the decisions ofthe Courts of Appeals in performing the search in this case and otherslike it, and in these circumstances the purposes of the Fourth Amendmentexclusionary rule would not be served by applying the principles ofAlmeida-Sanchez retroactively.")

The Supreme Court's Fourth Amendment jurisprudence also describes a"judicial integrity" principle, which, albeit a subordinate factor todeterrence, which is the "prime purpose of the exclusionary rule,"nevertheless provides a relevant consideration when admitting evidence.United States v. Janis, 428 U.S. 433, 458 n. 35, 96 S.Ct. 3021, 49L.Ed.2d 1046 (1976). However, the Court stated in Janis, "[j]udicialintegrity clearly does not mean that the courts must never admit evidenceobtained in violation of the Fourth Amendment. The requirement that adefendant must have standing to make a motion to suppress demonstrates asmuch." Id.

To say that an exception exists under the Leon rule to the applicationof the United States Supreme Court's holding in Kyllo (invalidating the"no-search" rationale in the Woodard case), which would permit theprinciple of the Kyllo holding to be ignored in this post-Kyllo case, toDefendant's prejudice, creates logical and rationalogical anomalies inimplementaion of Fourth Amendment doctrine of a decidedly perverseeffect.

Here, the Court's finding, infra, of unlawful execution of the warrantmakes it unnecessary to resolve this matter in order to decide thiscase. See infra at § C.

7. In his affidavit for the warrant application, Agent Milligan citedto Woodward, 154 F. Supp.2d at 87 and Kyllo, 190 F.3d 1041 (9th Cir.1999) (holding thermal image scanning not to be a search requiringprobable cause under the Fourth Amendment).

8. The warrant required that the executing agents provide "notice oftheir purpose and office" (otherwise known as a "knock and announce"warrant), which the government concedes requires the agents to provide"pre-entry notice" before entering the premises. See Government'sObjection to Defendant's Motion to Suppress and Incorporated Memorandumat 1, n. 1. Officer Dan LaChance, the officer in charge of executing thewarrant, explained at the hearing that they did not seek a "no-knock"warrant because this search was not "a high-risk search warrant." Tr. at9; see also M.R.Crim.P. 41(i).

9. Well-developed caselaw of the Sixth Circuit Court of Appeals lendsadditional support for this conclusion. The government argued, in Dice,that failing to knock was a more egregious violation that failing to waitmore than a "few" seconds, but the Court of Appeals for the Sixth Circuitclarified, "A court cannot sever the requirement that an officer wait areasonable time before forcing his way into a residence from therequirement that he knock and announce his presence in the first place."United States v. Dice, 200 F.3d 978, 984 (6th Cir. 2000).

10. Caselaw in other Circuits supports this interpretation, as well.The Court of Appeals for the Sixth Circuit has held that exigentcircumstances relieve officers of the knock-and-announce requirement whenthe person within the residence already knows of the officers' authorityand purpose, or when officers have a justified belief either that someonewithin is in imminent peril of bodily harm or that those within are awareof the officers' presence and are engaged in escape or destruction ofevidence. See United States v. Dice, 200 F.3d 978, 983 (6th Cir. 2000)(citing Wilson, 514 U.S. at 936 (stating that announcement wasunnecessary when it would consitute a "senseless ceremony")). The burdenof proof rests with the government to show such circumstances. Id. TheCourt of Appeals for the Fifth Circuit has also held that absent anyarticulation of reasonable suspicion that announcing their presence wouldbe dangerous, futile, or would result in the destruction of evidence,officers' initial attempts to forcibly enter a defendant's home wereunreasonable and violated the Fourth Amendment. United States v. Cantu,230 F.3d 148 (5th Cir. 2000).

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