United States v. Phillip Moore

956 F.2d 843, 1992 U.S. App. LEXIS 5431, 1992 WL 23161

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 12, 1992
• Docket: 90-2330
• Status: Published

Opinions

LOKEN, Circuit Judge.

The United States appeals an order of the district court granting appellee Phillip Moore’s motion to suppress evidence seized in a search conducted by state law enforcement officers pursuant to a state search warrant. The district court held that the no-knock entry authorized by the warrant violated the knock-and-announce requirements of 18 U.S.C. § 3109. We conclude that this federal statute is inapplicable and that, under Nebraska law and the Fourth Amendment, the evidence is admissible under the good faith standard of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we reverse.

I.

On October 24, 1989, Officer Michael Terrell of the Omaha Police Department applied for a warrant to search Moore’s residence. Based upon information supplied by a reliable confidential informant, Terrell’s Affidavit and Application stated that Moore had sold controlled substances from his residence within the previous 48 hours and was in possession of “a quantity of marijuana and other suspected narcotics packaged for street sale.” Terrell requested a “no-knock” search warrant, averring:

officers know from past experience that the evidence being sought could easily be destroyed by flushing it down the toilet or sink if officers were required to announce their presence and purpose.

A Nebraska County Court judge issued the requested warrant, expressly authorizing officers executing the warrant to “enter the premises described above without knocking or announcing their authority.”

The next morning, Terrell and other officers knocked down the door, entered Moore’s residence, and then announced their presence and purpose. The officers detained Moore and, during their subsequent search, found several sets of controlled substances packaged for sale, a handgun, and drug paraphernalia.

The state charged Moore with a drug offense. Before his trial, it was discovered that his residence is within one thousand feet of an elementary school. Federal law calls for twice the maximum punishment otherwise allowed in these circumstances. A federal grand jury then indicted Moore on two counts of possessing a controlled substance with intent to distribute within one thousand feet of an elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 845a (now § 860), and the state charges against him were dismissed.

Before his federal trial, Moore filed a motion to suppress all evidence seized by the state officers. Following an evidentia-ry hearing, the district court held (i) that the legality of the seizure for purposes of this federal prosecution must be determined “as if the search and seizure had been made by federal officers,” citing Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); (ii) that the evidence must be excluded because the no-knock search warrant violated 18 U.S.C. § 3109 (1988);¹ and (iii) that the evidence could not be admitted under the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because:

the affidavit is so completely lacking in particularized facts which would provide reasonable or probable cause to waive the knock and announce requirement of 18 U.S.C. § 3109 [that] the officers cannot be said to have had an objective reasonable belief in the sufficiency of the affidavit and the warrant issued therefrom.

The government has appealed the district court’s decision, arguing that the evidence seized at Moore’s residence is admissible under Leon’s good faith exception to the exclusionary rule because the state officers’ good faith should be determined under Nebraska rather than federal law.

II.

In Leon, the Supreme Court held that the Fourth Amendment’s exclusionary rule does not apply to “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant.” 468 U.S. at 922, 104 S.Ct. at 3420. As the district court noted, however, this good faith exception does not apply if the warrant was based upon an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923, 104 S.Ct. at 3421. See also United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984), cert. denied sub nom., Harmon v. United States, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).

In this case, it is undisputed that the Nebraska judge had probable cause to issue the warrant to search Moore’s residence. The issue is whether the no-knock entry was lawful. A Nebraska statute expressly authorizes state officers to obtain a no-knock search warrant, as was done here. See Neb.Rev.Stat. § 29-411 (1983), quoted infra p. 848. Section 3109, which governs the permissible scope of no-knock searches by federal law enforcement officers, does not authorize no-knock search warrants. The government does not contest the district court’s conclusion that the no-knock entry in this case would have violated § 3109 if conducted by federal officers. Thus, the initial question is whether this federal statute was properly applied to exclude evidence seized by state officers acting under a search warrant issued pursuant to state law.

III.

The district court concluded that § 3109 governs the conduct of these Nebraska officials because this is a federal prosecution. We disagree. It is true that, if state officers seize evidence in violation of the Fourth Amendment and turn that evidence over to federal officers (a practice known, when lawful, as the “silver platter”), the evidence must be excluded in a resulting federal prosecution. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The Supreme Court reaffirmed this principle, in the rather sweeping language quoted by the district court, in Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964):

The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.

However, the Supreme Court has only considered this question in the context of evidence seized by state officials in violation of the Fourth Amendment. Likewise, our prior cases applying the Elkins/Preston doctrine to exclude evidence seized by state officers from federal prosecutions have involved Fourth Amendment violations. See United States v. Keene, 915 F.2d 1164 (8th Cir.1990);² United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 712, 98 L.Ed.2d 662 (1988); United States v. Shegog, 787 F.2d 420, 422 (8th Cir.1986); United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983).

Elkins has also been cited in cases holding that evidence seized by state officers in conformity with the Fourth Amendment will not be suppressed in a federal prosecution because state law was violated. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987); United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985); United States v. Montgomery, 708 F.2d 343, 344 (8th Cir.1983). However, we do not read these decisions to mean that federal law governs all aspects of the admissibility in federal prosecutions of evidence independently acquired by state officers. Rather, they are based upon the proposition that, “states are not free to impose on Federal courts requirements more strict than those of the Federal laws or Constitution.” United States v. Combs, 672 F.2d 574, 578 (6th Cir.1982).

Assuming, then, no violation of the Fourth Amendment (a question we take up in Part V, infra), we come to the narrow question at issue here — when state officers, acting totally without federal involvement,³ seize evidence that is later offered in a federal prosecution, must that evidence be excluded if the no-knock entry violated § 3109, a federal statute that is more restrictive than the Fourth Amendment? We agree with the majority of federal courts that have declined to apply § 3109 in this situation.⁴

“[T]he purpose of the exclusionary rule is to deter unlawful police conduct.” United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975). This is not a case in which the state officers intentionally violated a federal statute that governed their conduct.⁵ Here, § 3109 was irrelevant to Officer Terrell and the County Court judge at the time the warrant issued; they were acting under a state search warrant statute to investigate possible violations of state law. The high social cost of the exclusionary rule — “The criminal is to go free because the constable has blundered,” as Justice Cardozo succinctly put it⁶ — requires that it have no application to situations where the constable has not blundered. See Illinois v. Krull, 480 U.S. 340, 347-349, 107 S.Ct. 1160, 1165-1167, 94 L.Ed.2d 364 (1987); Leon, 468 U.S. at 918-923, 104 S.Ct. at 3418-3421; Stone v. Powell, 428 U.S. 465, 482-496, 96 S.Ct. 3037, 3046-3053, 49 L.Ed.2d 1067 (1976); Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974). “[A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence ... must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness.” Illinois v. Gates, 462 U.S. 213, 257-258, 103 S.Ct. 2317, 2342-2343, 76 L.Ed.2d 527 (1983) (Justice White, concurring).

Therefore, we conclude that the proper standard in this case is whether the state officials complied with Nebraska law and the Fourth Amendment, or, under Leon, had an objectively reasonable basis to believe they were complying with Nebraska law and the Fourth Amendment, in applying for and issuing the no-knock warrant. Our task, then, is to examine the no-knock warrant to search Moore’s residence under Nebraska law, the Fourth Amendment, and Leon.

IV.

In Nebraska, no-knock warrants are expressly authorized by statute:

In executing ... a search warrant ... the officer may break open any outer or inner door or window of a dwelling house or other building ... without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice, but the political subdivision from which such officer is elected or appointed shall be liable for all damages to the property in gaining admission. The judge or magistrate may so direct only upon proof under oath, to his satisfaction that the property sought may be easily or quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice be given....

Neb.Rev.Stat. § 29-411. In State v. Meyer, 209 Neb. 757, 311 N.W.2d 520 (1981), the Supreme Court of Nebraska considered a no-knock search warrant issued upon an affidavit which the court described as follows:

A separate sentence and paragraph in the affidavit was as follows: “The cocaine is located in a tupperware container located on the first floor of the residence very close to a toilet area.” The affiant recited that it had been his experience that persons who deal in controlled substances keep devices and paraphernalia used in the preparation, sorting, processing, and packaging of the substances; that some drugs may be quickly disposed of or destroyed; and that unless the warrant provided for nighttime entry without notice on this particular night ... the substances may not be present the next day.

311 N.W.2d at 522. The court upheld the warrant and the subsequent no-knock entry. It first held that § 29-411 is valid under the Fourth Amendment as construed in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). It then concluded that the affidavit “was sufficient to establish probable cause, and as such the warrant [permitting] entry without announcement of identity and purpose, was properly authorized.” 311 N.W.2d at 524. In reaching this conclusion, the court recited the particularized facts in the affidavit, particularly the suspected location of the drugs in a tupperware container near a toilet, and also stated:

We believe we can take judicial notice of the fact that substances such as cocaine, LSD, and certain forms of prepared marijuana may be easily and quickly disposed of by merely flushing them down a toilet or drain, both of which were located in the residence in the case before us.

In this case, Officer Terrell, like the affiant in Meyer, relied upon his general experience in averring that a no-knock warrant was needed to prevent destruction of the suspected drugs. Unlike the affiant in Meyer, however, Terrell did not present particular information about the potential for rapid destruction at Moore’s residence, other than the fact that the suspected drugs were “packaged for street sale,” which does suggest easily disposable quantities. Thus, in accepting this affidavit as adequate cause to authorize a no-knock entry to prevent the destruction of evidence, the County Court judge who issued the warrant was taking the “judicial notice” of inherent destruetability that the Supreme Court of Nebraska had taken in Meyer.

Although the Meyer decision can be read as more fact specific, we conclude that Officer Terrell and the County Court judge acted in “objectively reasonable reliance” upon this decision of the highest court in the state in concluding that a no-knock search warrant could be issued on the basis of Terrell’s affidavit without violating § 29-411 or the Fourth Amendment. Indeed, shortly after the issuance of this warrant, the Supreme Court of Nebraska issued two decisions expressly reaffirming Meyers broad “judicial notice” approach to this issue. See State v. Eary, 235 Neb. 254, 454 N.W.2d 685, 690 (1990); State v. Armendariz, 234 Neb. 170, 449 N.W.2d 555, 558 (1989).⁷ Thus, under Nebraska law, the no-knock application and warrant pass muster under Leon.

V.

The remaining question is whether, under Leon, the evidence must be excluded because it was seized in obvious violation of the Fourth Amendment. There is no dispute that the reason given for the no-knock entry — possible destruction of the evidence to be seized — is constitutionally adequate. “Officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke ... the destruction of critical evidence.” Katz v. United States, 389 U.S. 347, 355 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576 (1967). The question is whether “exigent circumstances” are constitutionally required to execute a search warrant without knocking and, if so, whether no-knock entry may be justified by the general experience of police officers regarding the likelihood that knocking will result in the destruction of the drugs being sought.⁸

In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court seemed to adopt an exigent circumstances requirement but was evenly divided on the question whether it can be satisfied by the general experience of law enforcement officers. Four Justices, in the plurality because Justice Harlan considered the Fourth Amendment inapplicable, upheld the unannounced entry in large part because of “the officers’ belief that Ker was in possession of narcotics, which could be quickly and easily destroyed,” 374 U.S. at 40, 83 S.Ct. at 1633. The four dissenters protested that, “The subjective judgment of the police officers cannot constitutionally be a substitute for ... a necessarily objective inquiry, namely, whether circumstances exist in the particular case which allow an unannounced police entry.” Id. at 63, 83 S.Ct. at 1645 (emphasis in original).

Since Ker and Katz, the Supreme Court has not clarified whether the Fourth Amendment prohibits no-knock entries based upon a general or blanket judgment that contraband such as drugs will otherwise be destroyed. See Hall v. Shipley, 932 F.2d 1147, 1152-53 (6th Cir.1991). Numerous state courts have considered the constitutional issue; the decisions are in conflict, with the Supreme Court of Nebraska’s judicial notice position being in the minority.⁹

The Fourth Amendment’s reasonableness inquiry always turns on the facts of a particular case. See Illinois v. Gates, 462 U.S. at 230-232, 103 S.Ct. at 2328-2329. As courts have recognized in interpreting § 3109, some situations inherently present “exigent circumstances” of likely escape, danger, or the destruction of contraband. See United States v. Forker, 928 F.2d 365, 369 (11th Cir.1991); United States v. Bonner, 874 F.2d 822, 826-27 (D.C.Cir.1989). The question is the reasonableness of the generalized statement of cause that is being invoked.

It is reasonable for police officers to assume that suspects selling illegal drugs in small quantities from a residence that has normal plumbing facilities will attempt to destroy those drugs if officers knock before a search warrant is executed. Reflecting that obvious reality, during the years when a federal statute authorized no-knock search warrants,¹⁰ this court upheld against Fourth Amendment attack a no-knock warrant issued on the basis of an affidavit that stated:

Affiant also states that it will be necessary to break and enter the premises without announcing his authority until after he has gained admittance since previous raids by the Omaha Police Department have sometimes proven to be fruitless when minimal notice has been given.

Thomas v. United States, 501 F.2d 1169, 1173 n. 3 (8th Cir.1974). On the other hand, a blanket rule permitting no-knock search warrants in all drug cases, regardless of whether the forms and quantities suspected to be present can be readily destroyed, is patently unjustifiable and would invite unnecessarily violent and intrusive execution of many search warrants. Compare State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512, 519-20 (1984).

In this case, Officer Terrell’s affidavit recited testimony from an informant that Moore had been selling marijuana from his house and that he possessed an unstated quantity of drugs “packaged for street sale.” These allegations, along with Terrell’s experience that drugs are readily destructible contraband, were the factual bases upon which the judge issued this no-knock warrant. Assuming, as we do, that the Fourth Amendment applies to the reasonableness of a search warrant’s execution, this showing of probable cause to enter without knocking was thin indeed. Had Officer Terrell included information regarding the quantity of drugs in Moore’s house, or other information creating a reasonable fear of destruction (such as the tupperware container by a toilet in Meyer), we would be far more confident that this affidavit justified the issuance of a constitutionally reasonable no-knock warrant.

However, the fact that this warrant was arguably issued without adequate cause to justify authorizing no-knock entry does not mean that the evidence must be suppressed. Leon teaches that the evidence is admissible unless Terrell’s affidavit was so lacking in indicia of probable cause that he could not have reasonably believed in its sufficiency. Terrell applied for the no-knock warrant under § 29-411 as upheld in Meyer. He had information that the drugs were in readily disposable form, “packaged for street sale.” He stated that, in his experience, drugs can easily be destroyed if officers knock and announce; that statement was not unreasonable, indeed, it has been endorsed by the Supreme Court of Nebraska in three cases and by this court in Thomas. There were no Supreme Court or Eighth Circuit precedents that should have warned Terrell that his affidavit was obviously inadequate under the Fourth Amendment. In these circumstances, we conclude that Officer Terrell acted in objectively reasonable reliance on the no-knock warrant in conducting the search of Moore’s residence. Accordingly, the motion to suppress should have been denied.

The order of the district court is reversed and the cause is remanded for further proceedings.

1 . Originally enacted in 1917, Section 3109 provides:

§ 3109. Breaking doors or windows for entry or exit

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.

2 . After stating the general rule that “a state search must be reasonable under the fourth amendment in order for evidence to be admissible in a federal prosecution,” 915 F.2d at 1167, we went on in Keene to find no Fourth Amendment violation because the "no-knock" entry complied with § 3109. Keene did not address the issue whether § 3109 could operate to exclude evidence validly seized by state officers under state law and the Fourth Amendment.

3 . A search conducted with significant involvement of federal officers must comply with federal law. United States v. McCain, 677 F.2d 657, 662 (8th Cir.1982). Federal agents may not circumvent more restrictive federal requirements by arranging for state officers to search under state law. However, in this case there was no such federal involvement.

4 . See United States v. Mitchell, 783 F.2d 971, 973-74 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986); United States v. Andrus, 775 F.2d 825, 844 (7th Cir.1985); Simons v. Montgomery County Police Officers, 762 F.2d 30, 32 n. 1 (4th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986); United States v. Jefferson, 714 F.2d 689, 693 (7th Cir.1983); United States v. Valenzuela, 596 F.2d 824, 829-30 (9th Cir.), cert. denied sub nom., Lizarraga v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); United States v. Daoust, 728 F.Supp. 41, 47 (D.Me.1989), aff’d, 916 F.2d 757 (1st Cir.1990).

We think it significant that the cases applying § 3109 to the conduct of state officers have found no violation of the federal statute, so those courts have not had to deal with the exclusionary issue presented here. See United States v. Singer, 943 F.2d 758, 761 (7th Cir.1991); United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991); United States v. One Parcel of Real Property, 873 F.2d 7, 8 (1st Cir.), cert. denied sub nom., Latraverse v. United States, 493 U.S. 891, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989).

5 . Compare Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968) (intentional violation of the anti-wiretapping provisions of the Federal Communications Act requires exclusion of the resulting evidence, even in a state prosecution).

6 . People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587, cert. denied, 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784 (1926).

7 . In the very recent case of State v. Pierson, 238 Neb. 872, 472 N.W.2d 898 (1991), which involved the seizure of bulky gambling machines, the Supreme Court of Nebraska suggested that it will now construe § 29-411 more in keeping with the "exigent circumstances” case law under 18 U.S.C. § 3109. Even if Pierson signals a modification of the court's blanket approach to drug searches in Eary and Armendariz, which is questionable, the 1991 decision in Pierson does not negate the objective good faith of Officer Terrell and the issuing judge in October 1989.

8 . The relevance of the search warrant in this inquiry is problematic. It is clear that covert entry of a private home does not require authorization in a warrant to be reasonable under the Fourth Amendment. See Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). But the fact that a no-knock entry has been authorized by a neutral magistrate in a warrant required by statute can hardly be irrelevant to the reasonableness of that entry under the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

9 . Compare Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557, 559-60 (Ala.Cr.App.) cert. denied, 286 Ala. 740, 238 So.2d 560 (1970); State v. Mendoza, 104 Ariz. 395, 454 P.2d 140, 144-45 (1969); People v. Gastelo, 67 Cal.2d 586, 63 Cal.Rptr. 10, 12, 432 P.2d 706, 708 (1967); State v. Anonymous, 30 Conn.Sup. 197, 308 A.2d 251, 252 (1973); People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 669-70, 401 N.E.2d 507, 510-11 (1979); State v. Dusch, 259 Ind. 507, 289 N.E.2d 515, 518 (1972); Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818, 823 (1982); State v. Daniels, 294 Minn. 323, 200 N.W.2d 403, 410 (1972); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795, 798 (1968); State v. Carufel, 112 R.I. 664, 314 A.2d 144, 147 (1974); Heaton v. Commonwealth, 215 Va. 137, 207 S.E.2d 829, 831 (1974); State v. Hatcher, 3 Wash.App. 441, 475 P.2d 802, 804-05 (1970); State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512, 519-20 (1984) (all rejecting a blanket rule), with People v. Lujan, 174 Colo. 554, 484 P.2d 1238, 1241 (1971); Henson v. State, 236 Md. 518, 204 A.2d 516, 519-20 (1964); People v. DeLago, 16 N.Y.2d 289, 266 N.Y.S.2d 353, 356, 213 N.E.2d 659, 661 (1965), cert. denied, 383 U.S. 963, 86 S.Ct. 1235, 16 L.Ed.2d 305 (1966); State v. Meyer, 209 Neb. 757, 311 N.W.2d 520, 524 (1981); State v. Loucks, 209 N.W.2d 772, 777-78 (N.D.1973); State v. Spisak, 520 P.2d 561, 562-63 (Utah 1974) (all upholding a blanket rule).

10 . 21 U.S.C. § 879(b) (1970) (repealed 1974) allowed federal agents to obtain no-knock search warrants

... if the judge or United States magistrate issuing the warrant (1) is satisfied that there is probable cause to believe that (A) the property sought may and, if such notice is given, will be easily and quickly destroyed or disposed of ... and (2) has included in the warrant a direction that the officer executing it shall not be required to give such notice. Any officer acting under such warrant, shall, as soon as is practicable after entering the premises, identify himself and give the reasons and authority for his entrance upon the premises.