U.S. v. SHERMAN

2004 | Cited 0 times | D. Maine | July 20, 2004

RECOMMENDED DECISION ON MOTIONS TO SUPPRESS

Alton Sherman and Richard Rodrigue have each filed a motion tosuppress evidence seized as the result of the execution of astate search warrant at a camp located at Knight's Landing inBrownville, Maine. (Docket Nos. 25 & 26.) Each defendant raisesthe identical two grounds for suppression, complaining first thatthe affidavit in support of the warrant does not contain specificfacts sufficient to support a probable cause finding and secondthat the officers failed to execute the warrant properly inaccordance with the "knock and announce" rule. I now recommendthat the court adopt the following proposed findings of fact andDENY the motions to suppress even though the officerstechnically violated the knock and announce rule.

A. Probable Cause to Search

The facts underlying probable cause for the issuance of thestate court search warrant are set forth in paragraphs A-O of theJune 10, 2002, affidavit of Guy E. Dow, Deputy Sheriff for thePiscataquis County Sheriff's Department. (Gov't. Ex. # 1.) Bothdefendants argue the Dow affidavit fails to establish thenecessary nexus between the criminal activity, marijuanacultivation, and the Knight's Landing residence. I am satisfied under the deferential standard of review set forth inIllinois v. Gates, 462 U.S. 213, 238 (1983), that the issuingmagistrate properly found a fair probability that contraband orevidence of a crime would be found inside the camp, given that ontwo occasions instrumentalities of a crime were observed parkedadjacent to the place to be searched.

On May 24, 2002, Deputy Dow learned that a Maine drugenforcement agent had seen a large Ryder truck on a logging roadin an isolated area of Piscataquis County. The next day anotherlaw enforcement officer followed the truck's tire tracks to theend of the logging road where he located a large deposit ofPro-Mix potting soil near an old railroad bed. On May 27 thefirst officer found another large deposit of soil in the samegeneral area. On May 29 the second officer flew over the area andobserved a "large grow area" and a red car parked at the end ofthe road. Later that same afternoon the officer was dropped offnear where the logging road intersected the old railroad bed. Hethen observed a similar red car coming out of the logging road.When he checked the registration plates on the red car hediscovered that they belonged, according to the Department ofMotor Vehicles, to an expired registration on a white Capriceautomobile.

The next day the officer went to the site of the potting soiland took photos of the Pro-Mix. He also went to the "large growarea" where he had first seen the red car from the air. There wasPro-Mix potting soil spread out on the ground and approximately100 marijuana plants growing in containers. At the "large growarea" they also noticed a white Polaris ATV and discovered abeaten ATV path from the grow site to where the Pro-Mix hadoriginally been stored. On June 1 a law enforcement officerlocated a maroon Subaru on a gravel road "about 5 miles from theRR bed and the road where the ATV, Garden intersects." This car was identified as thepreviously described "red car." It was found to contain loosepotting soil in the rear portion of the vehicle and it had twoflat front tires. By running the VIN through the Department ofMotor Vehicles, the officers learned that the maroon Subaru withthat VIN was registered to David Smith of Edgecomb, Maine.

Between June 3 and June 7 the officers continued sporadicsurveillance of the area. On June 3 the marijuana had not yetbeen transplanted from its containers, but the officers observedthat the white Polaris ATV had been moved. Using the engineserial number they learned that it was originally sold to anindividual in Whitefield, Maine. On June 4 the maroon Subaru wasstill there but the registration plate had been removed. On June6 the maroon Subaru was still there but both front tires had beenreplaced, although there was still no registration on thevehicle. The same day the officers went to the potting soillocation and observed that the quantity of soil had beensubstantially reduced. As they were leaving this area they met asmall black vehicle heading into the area, bearing registrationplates GTOCRUZ, the registration for a black truck registered toRichard Rodrigue. An officer left in the area observed the smallblack vehicle come back out of the area loaded with Pro-Mixpotting soil. The officers were unable to follow the vehicle, sothey chose to go to the grow site where they discovered that theATV was gone and that the marijuana plants had not yet beentransplanted.

Finally on June 7 law enforcements officers returned to thegrow site and discovered the marijuana had been transplanted.They confiscated 85 plants and some Pro-Mix, confirming that thelot numbers on the bags of Pro-Mix matched the lot numbers of thepotting soil at the site of the first potting soil "depo." Alocal police officer informed the officers that he had observed (at an unknowntime) a black Volkswagen and a white Polaris ATV parked at a campat Knight's Landing. On June 10 Deputy Dow went to Knight'sLanding and saw the black vehicle with the GTOCRUZ plates and awhite Polaris ATV (similar to the one seen at the marijuana growsite) parked behind this camp. Armed with this information,Deputy Dow obtained the search warrant.

Sherman and Rodrigue argue that the best case presented by theGovernment establishes only a nexus between the two vehicles andthe marijuana cultivation operation. The Government says thatbecause those two vehicles were seen parked adjacent to this campon two separate occasions, there was a sufficient nexus betweenthe camp and the marijuana growing operation, giving rise toprobable cause to search the camp.

With regard to the "nexus" element, the task of a magistrate in determining whether probable cause exists is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, (1983). In order to establish probable cause, the facts presented to the magistrate need only "warrant a man of reasonable caution" to believe that evidence of a crime will be found. Texas v. Brown, 460 U.S. 730, 742, (1983) (plurality opinion). The probable cause standard "does not demand showing that such a belief be correct or more likely true than false."United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999).

The question of probable cause to search the camp on thesefacts may well be a close call. However, "in a doubtful ormarginal case, the court defers to the issuing magistrate'sdetermination of probable cause." United States v. Barnard,299 F.3d 90, 93 (1st Cir. 2002). This case is such a one and Ibelieve it is appropriate to defer to the issuing magistrate's "common-sense" conclusion. United States v.Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996).1

B. Execution of the Search Warrant — the Knock and Announce Rule

1. The findings of fact

My findings of fact regarding the execution of this warrant aresuccinctly stated in Government Exhibit #2, the police reportprepared by Guy Dow following the execution of the warrant. Dowrelated that he went to the Knight's Landing camp withrepresentatives of the Piscataquis County Sheriff's Office, theMilo police and the Brownville police at 9:15 a.m. on June 11,2002, for the purpose of executing the search warrant. Accordingto Dow, "I knocked on the door to the camp and opened it. Ientered the camp and shouted `Sheriff's Office, Search Warrant!'"His testimony at the suppression hearing essentially restatedthose facts, with one modification regarding the timing andidentification of the person making the initial announcement. Dowcontinued to maintain that he himself made his announcement oncehe had opened the door and entered the residence.

Deputy Dow and Lt. Robert Young of the Sheriff's Departmenttestified that the night prior to the suppression hearing infront of me they met together and discussed the case. Lt. Youngtestified that as a result of Dow refreshing his recollection henow remembers that before entry was made into the camp, Dowknocked at the door and then Chief Lyford of the Milo PoliceDepartment announced, "Piscataquis County Sheriff's Office,Search Warrant" and then after a 5 to 7 second pause, Dow and theChief entered the camp followed by Young. Young testified that heremembered these events now, two years later, because when Dow reminded him of the procedure, hethen recalled that he had found it extraordinarily unusual at thetime for the Chief to be announcing on behalf of the Sheriff'sDepartment. However, he had apparently forgotten that fact untilreminded of it by Dow. In his June 2002 police report Youngreported the following on this issue: "Upon arrival we knocked onthe door, stated that we were the Sheriff's Office and had asearch warrant, waited several seconds and then opened thedoor." (Gov't. Ex. No. 3) (emphasis added).

Chief Lyford also testified at the suppression hearing in frontof me. He confirmed that he was present at the scene to assistwith the execution of the search warrant. He also recalled thatGuy Dow and he were the first two officers into the camp and thatYoung was somewhere immediately behind them. He recalledspecifically that Guy Dow opened the door. The Chief recalledthat someone announced, "sheriff's department, search warrant,"five to seven seconds prior to the entry, but he could notremember exactly who that may have been. Lyford also testifiedthat he has never told anyone or suggested to anyone that he wasthe individual making the announcement prior to entry. He did notdeny that he could have made the announcement as testified by theother officers, but he did not affirm that he did so. ChiefLyford made it clear that he was present only to assist theSheriff's Department.

Based on the testimony presented, I find the following facts tobe more likely than not the most accurate version of whatoccurred. Dow and Chief Lyford were on the porch and Young was ashort distance away, off to the side of the porch. Dow knocked onthe door, waited several seconds (five being the outsidemaximum), turned the knob, found the door unlocked, crossed thethreshold, and did so, announcing, "Sheriff's Department, search warrant!" I do not affirmatively find that anyother announcement of purpose and identity was made by any otherofficer prior to entry. The time that elapsed from the initialknock until Dow made his "announcement" inside the camp was verybrief, no more than several seconds. Both defendants were in thecamp, one sleeping in the loft and one on a couch inside the mainpart of the camp.

2. Conclusions of law

When a defendant challenges the reasonableness of an entryunder the knock and announce rule, the Government has the burdento show that the officers' actions were reasonable. See UnitedStates v. Holmes, 175 F. Supp.2d 62, 73-76 (D. Me. 2001);accord State v. Reynoso-Hernandez, 2003 ME 19, ¶ 17,816 A.2d 826, 832. In Wilson v. Arkansas, 514 U.S. 927, 936-937 (1995),the United States Supreme Court made crystal clear that under theFourth Amendment officers executing a search warrant could make aforcible unannounced entry into a residence only on a showing ofreasonable cause to believe that a suspect might otherwiseescape, destroy evidence, or threaten the safety of the executingofficers or the public. After announcing their presence, officersmust give the occupants of a dwelling a reasonable time torespond. What is a "reasonable time" is decided on a case-by-casebasis, giving due consideration to the totality of thecircumstances confronted by the officers executing the warrant.United States v. Banks, ___ U.S. ___, 124 S.Ct. 521, 526-527(2003). The United States Supreme Court held long ago that18 U.S.C. § 31092 prevents a law enforcement officer fromknocking and then opening an unlocked door without the requisite priorannouncement of purpose and authority. See Sabbath v. UnitedStates, 391 U.S. 585, 587-588 (1968). The Banks rule makes itclear that Fourth Amendment principles correspond to therequirements of § 3109. Banks, 124 S.Ct. at 529 ("[Section]3109 implicates the exceptions to the common lawknock-and-announce requirement that inform the Fourth Amendmentitself."). A judge of this court has already held, even prior tothe Banks decision, that knocking, waiting no more than threeto five seconds, opening an unlocked door, crossing thethreshold, and then announcing the purpose and authority for theintrusion is an unconstitutional entry into a constitutionallyprotected area. Holmes, 175 F. Supp.2d at 76.

The Government presented this case and argued the evidence asthough the difference between Dow's first version of theexecution of the warrant and the second version presented at themotion to suppress hearing was of some constitutional moment. Icannot accept that analysis. This case did not involve a risk ofescape, a threatened destruction of evidence, or any articulatedperceived threat to the officers.3 The officers were executing a straightforward search in conjunction with amarijuana cultivation investigation. There was no evidence ofviolence or the likely destruction of drugs inside the residence.This camp, on the shore of a remote lake, was surrounded byupward of six or more law enforcement officers. Escape was not anoption. The rule of Wilson strictly applied to the facts ofthis case makes it impossible for me to find that making theknock and announcement at the closed door of the camp and waitingfor an outside maximum of five seconds would have justified aforcible entry under the totality of the circumstances of thiscase. In my view the de minimis nature of the difference inthis case between making entry across the unlocked thresholdafter knocking but before announcing, and making entry withinfive seconds or less of a knock and announcement, cannot have anyconstitutional relevance. It simply would elevate form oversubstance. Under either version of the facts, the officerscrossed the threshold before it was reasonable to infer they hadbeen refused entry or any exigency had ripened under the totalityof the circumstances. This case does not present a scenario suchas United States v. Sargent, 319 F.3d 4, 10-12 (1st Cir. 2003),where a five second wait was deemed reasonable because thedefendant was believed to be heavily armed, in possession of aquantity of easily disposable drugs, and was possibly alerted tothe presence of the police. The Banks rule is clear.

Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied § 3109 as well as the Fourth Amendment, even without refusal of admittance. Banks, 124 S.Ct. at 529.

Even under the Government's version of the evidence I cannotfind that any reasonable suspicion of exigency ripened beforeentry. This search occurred relatively early in the morning withno sign of life coming from inside the camp, suggesting theoccupants either were not home or were still in bed. The policedid not know who resided in the subject residence and I amwilling to concede that the uncertainty about the identity of theoccupants might have shortened the wait period after a properknock and announce, but officers' decision to proceed with thesearch before obtaining more information about the putativeoccupants can hardly be said to have created an "exigency." Theysimply had no articulated reason to suspect that an armedassailant awaited their arrival. Nor did they have any reason tobelieve, at that point in time, that the occupants knew that theinvestigation of a marijuana growing operation miles from thecamp had led the police to Knight's Landing. According to ChiefLyford the occupants of the camp would not have been able to seethe road from the door where entry was made, making it even moreunlikely that the occupants would have been alerted to thearrival of the officers. Furthermore, the case was a marijuanacultivation case, not a crack cocaine investigation. While thecase is not the proverbial "search for a piano" case described inJustice Souter's Banks opinion, the warrant legitimately soughtitems connected to a `low tech" drug cultivation operation, notsmall pills or powdery substances subject to quick disposal.Those facts support the conclusion that more than several secondswould have been required to fairly comply with the intent of theknock and announce rule on the basis of the totality of thecircumstances known to the officers at the time of entry. Hadthey unreasonably torn the door from its hinges, this case would not be a difficult one for me to resolve. I would comfortablyrecommend that the evidence seized should be suppressed.

However, trial courts have not always rigidly applied theexclusionary sanction to what might be denominated technicalviolations of the knock and announce rule. The Second Circuit hasexplained the three valid reasons for the "knock and announce"rule.

We have enunciated three reasons for the "knock and announce" rule: "(1) the reduction of potential for violence to both the police officer and the occupants of the house into which entry is sought; (2) the [avoidance of the] needless destruction of private property; and (3) a recognition of the individual's right of privacy in his house."United States v. Alejandro, 368 F.3d 130 (2d Cir. 2004)(quoting United States v. Brown, 52 F.3d 415, 421, (2d Circuit1995)). The court concluded that gaining entry by a ruse afterthe issuance of a search warrant, involving a knock but no properannouncement of authority and purpose, did not violate the FourthAmendment, even though allowing law enforcement officers todissemble in order to obtain entrance might be seen assignificantly eroding an individual's right of privacy in hishouse. Id. at 136. The United States District Court inMassachusetts has also endorsed the notion of gaining entry byruse as being permissible. United States v. Legault, Crim. No.03-10251-RGS, 2004 WL 1517486, 2004 U.S. Dist. LEXIS 12526 (D.Mass. July 8, 2004).

The officers here did not enter through either a forcible entrythat destroyed property or a ruse that significantly erodedprivacy interests. Guns were not drawn at the moment of entry,and in fact, the officer only drew a weapon when the occupant inthe loft did not immediately respond to his request to comedownstairs. Even then there was no confrontation or real dangerto any person. It is true the officers crossed the thresholdwithout first being formally refused entry and in the absence ofany exigency, thereby technically infringing upon the occupants' privacy interest.However, pursuant to the search warrant, the privacy interest inthis camp was subject to much a greater intrusion than merelycrossing the threshold.

Higher courts have failed to provide bright line guidance as tohow the knock and announce rule is to be applied. While all seemto agree that the principle has been enshrined in the FourthAmendment, it is left to police officers and trial courts toimplement it in a reasonable way. If I could find as a fact thatthe police officers waited seven, or maybe ten seconds, afterannouncing and before opening the unlocked door, suddenly thesesame facts would arguably become constitutionally reasonable.Because in this case the lead officer knocked at the door, triedthe knob and, finding it unlocked, crossed the threshold toannounce his authority and purpose, it does not follow that themechanistic operation of the knock and announce rule requires theevidence be suppressed. The rule of Banks mandates no suchresult.

The Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be "secure . . . against unreasonable searches and seizures." Although the notion of reasonable execution must therefore be fleshed out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.United States v. Banks, 124 S.Ct at 524-525. In my view thesearch conducted at Knight's Landing was not unreasonable underthe totality of the circumstances. There was no property damagednor were any safety concerns created by the manner of entry.Therefore evidence garnered as a result of that search should notbe suppressed. The core values of the Fourth Amendment were not violated by the mannerand methods used to search this camp.

Conclusion

Based upon the foregoing, I recommend that the Court DENY themotions to suppress. (Docket Nos. 25 & 26.)

1. In any event the Government has argued the good-faithexception as set forth in United States v. Diehl, 276 F.3d 32,42 (1st Cir. 2002). I do not reach the applicability of thatexception to these facts because I find that there was probablecause under the deferential standard of review.

2. The statute states: "`The officer may break open any outeror inner door or window of a house, or any part of a house, oranything therein, to execute a search warrant, if, after noticeof his authority and purpose, he is refused admittance or whennecessary to liberate himself or a person aiding him in theexecution of the warrant." The statute has no directapplicability to this case because no federal law enforcementpersonal were involved in this investigation or search.

3. The Government made much of the fact that firearms werefound in the camp while executing the search warrant. I have towonder how many camps in rural Maine do not contain some typeof firearm. In this case, unlike Sargent, the officers had nospecific knowledge prior to the entry that the occupants werearmed or particularly dangerous. I am not in any way diminishingthe inherent dangers associated with executing a search warrant.In fact the execution of every warrant carries with it a degreeof risk. There is a valid law enforcement need to execute searchwarrants cleanly, safely and efficiently. Everything the officersdid at the time of the execution of this warrant avoided damageto property or danger to the safety of any person. The issue, asI have framed it in this case, is whether the reasonableness ofthe officers' actions under the circumstances of the particularcase negates technical compliance with the knock and announcerule. Requiring rigid adherence to a formulaic application of theknock and announce rule puts the court in the untenable positionof second guessing decisions made instantaneously by officers onthe scene charged with the difficult task of executing a searchwarrant without endangering human life or needlessly damagingpersonal property. This search simply involved none of the commonfactors associated with the need for a "no-knock" warrant. Nordid any exigency arise after the officer knocked that would haveauthorized his unannounced crossing of the threshold. I dorecognize that once an officer announces his purpose, the timeperiod for response is thereby probably shortened because theoccupants are alerted to the presence of the search warrant.However, in this case I find as a fact that even that recognized"exigency" did not occur prior to entry into the dwelling. WhenDow knocked at the door the occupants had no reason tonecessarily suspect the police were there with a search warrant.Unless the Sargent five second rule has become a de facto perse standard for reasonableness in every type of drug caseimaginable, the time period here between Dow's knock on thedoor(and even assuming a contemporaneous announcement by Lyfordat that moment) and the entry was so extremely brief that it doesnot comport with the requirements set forth in other cases.

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