United States v. Lashawn Lowell Banks

282 F.3d 699, 2002 Cal. Daily Op. Serv. 2092, 2002 Daily Journal DAR 2609, 2002 U.S. App. LEXIS 3416, 2002 WL 338389
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 5, 2002
Docket00-10439
StatusPublished
Cited by29 cases

This text of 282 F.3d 699 (United States v. Lashawn Lowell Banks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lashawn Lowell Banks, 282 F.3d 699, 2002 Cal. Daily Op. Serv. 2092, 2002 Daily Journal DAR 2609, 2002 U.S. App. LEXIS 3416, 2002 WL 338389 (9th Cir. 2002).

Opinions

Opinion by Judge POLITZ; Partial Concurrence and Partial Dissent by Judge FISHER.

POLITZ, Circuit Judge.

Lashawn Lowell Banks appeals his guilty plea conviction for possession of a controlled substance with intent to distribute, and for being a drug user in possession of a firearm. His plea followed the district court’s denial of his motion to suppress certain evidence. Banks reserved his right to appeal. A close review of the record, counsel’s arguments, and guiding principles, persuades us that a reversal and remand is in order.

BACKGROUND

The present action concerns the execution of a search warrant on Banks’ apartment by North Las Vegas Police Department officers and FBI agents. The officers positioned themselves at the front and rear of the apartment and followed the statutory “knock and announce” procedure by knocking loudly on the apartment door and announcing “police search warrant.” See 18 U.S.C. § 3109. After fifteen to twenty seconds without a response, armed SWAT officers made a forced entry into Banks’ apartment.

Once inside, the officers found Banks in the hallway outside his bathroom. Banks, who obviously had just emerged from his shower, was forced to the floor and handcuffed. He then was seated at his kitchen table for questioning and shortly thereafter was provided underwear with which to cover himself. Two agents questioned Banks while other officers searched his apartment. Banks maintains that he was under the influence of drugs and alcohol during the interrogation. Both agents, however, testified that they perceived no indications that Banks was under the influence. Banks also asserts that he was nervous and intimidated by a “good-cop versus bad-cop” routine utilized by the interrogating agents and the hooded SWAT officers searching the apartment. The interrogating agents maintain that Banks appeared calm and was able to reason throughout the interview.

The agents questioned Banks for approximately forty-five minutes, and about midway thereof asked Banks to reveal his suppliers. Banks stated that he would not reveal his suppliers before talking to an attorney. The agents continued the questioning.

[703]*703Prior to trial Banks moved to suppress the statements he made during the interrogation. He contends that the statements should have been suppressed on the grounds that they were obtained: (a) in violation of 18 U.S.C. § 3109 because the officers failed to wait a reasonable period of time before forcefully entering his residence when executing the search warrant; (b) in violation of the fifth amendment because he did not make a knowing and voluntary waiver of his rights during the interrogation; and (c) in violation of the fifth amendment because the interrogation continued after he made an unequivocal request for an attorney. The district court denied the suppression motion. Following this denial, Banks pled guilty to possession of a controlled substance with intent to distribute and to being a drug user in possession of a firearm.

Banks expressly reserved his right to appeal the court’s denial of his Motion to Suppress. This appeal followed.

ANALYSIS

I. 18 U.S.C. § 3109

We review a trial court’s legal conclusions de novo, reviewing findings of fact underlying those conclusions for clear error.1

Title 18 U.S.C. § 3109, commonly referred to as the “knock and announce” statute, establishes guidelines for federal law enforcement officers when executing a search warrant. The statute directs that:

The 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 the warrant.

18 U.S.C. § 3109.

Under the facts at bar this statute raises two critical issues: (a) whether the officers provided notice of their authority and purpose; and (b) whether they were refused admittance. There is no dispute that proper notice of authority and purpose was given herein. Before us is the second issue, refusal of admittance.

Banks contends that the officers executing the search war rant entered his apartment illegally because they failed to wait a reasonable time, after receiving no response, before forcefully entering his quarters. Banks further contends that because the entry was in violation of his fourth amendment rights and 18 U.S.C. § 3109, all evidence, including his statements, constitute fruits of an illegal search and should be suppressed. We find this contention persuasive.

A literal application of the statute would allow entry only after both announcement and specific denial of admittance. Our precedents, however, dictate that an affirmative refusal of entry is not required by the statute, and that refusal may be implied in some instances. See, e.g., United States v. Allende, 486 F.2d 1351, 1353 (9th Cir.1973). “A failure to answer a knock and announcement has long been equated with a refusal to admit the search party and a justification for forcible entry.” United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir.1991) overruled on other grounds by United States v. Ruiz, 257 F.3d 1030 (9th Cir.2001) (citations omitted). Furthermore, “[t]here are no set rules as to the time an officer must wait before using force to enter a house; [704]*704the answer will depend on the circumstances of each case.”2

Section 3109 serves the following interests: (a) reducing the risk of harm to both the officer and the occupants of the house to be entered; (b) helping to prevent the unnecessary destruction of private property; and (c) symbolizing respect for individual privacy summarized in the adage that “a man’s house is his castle.” United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir.1973) (quoting Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958)).

Entries may be classified into four basic categories, consistent with the interests served by 18 U.S.C. § 3109

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282 F.3d 699, 2002 Cal. Daily Op. Serv. 2092, 2002 Daily Journal DAR 2609, 2002 U.S. App. LEXIS 3416, 2002 WL 338389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lashawn-lowell-banks-ca9-2002.