United States v. Jones, Kip ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2527
United States of America,
Plaintiff-Appellee,
v.
Kip R. Jones,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:97CR20062--Michael P. McCuskey, Judge.
Argued January 11, 2000--Decided May 26, 2000
Before Coffey, Easterbrook, and Evans, Circuit Judges.
Easterbrook, Circuit Judge. Kip Jones pleaded
guilty to a cocaine offense, reserving the right
to appeal from the denial of his motion to
suppress evidence. See Fed. R. Crim. P. 11(a)(2).
Police entered Jones’s apartment on the authority
of a search warrant. Jones does not dispute the
validity of the warrant, but he does protest the
manner of its execution.
An officer pounded loudly on the door, shouting
"Decatur Police! Search warrant! Open the door!"
When the occupants did not respond, the officer
tried the door, found it unlocked, and opened it
slightly. A second officer hit the door with a
battering ram, and it flew open. One of the
officers looked into the living room and, seeing
no one, tossed in a concussion grenade (which the
police call a "flash-bang device"). A concussion
grenade produces a brilliant flash and a loud
noise designed to stun and disorient persons
nearby, making resistance less likely. A member
of the police team found Jones at a table
approximately 15 to 20 feet from the front door
and instructed him to "get down." Instead, Jones
stood up and was tackled, being struck on the
right side of the neck in the process. Officers
then handcuffed Jones, who had been unarmed, and
conducted their search, finding marijuana,
cocaine, and equipment for weighing drugs. No
weapon was to be found in the apartment, though
the officers did locate 26 rounds of ammunition.
While the search continued, Jones initiated a
conversation with some officers, who moved him to
the bedroom, administered Miranda warnings, and
took a statement in which Jones admitted dealing
in these drugs and sought to open negotiations
about the exchange of lenience for additional
cooperation.
Jones does not contend that the officers
violated 18 U.S.C. sec.3109 or the fourth
amendment, see Wilson v. Arkansas, 514 U.S. 927(1995), by giving insufficient notice before
using the battering ram. What he does contend is
that the entry was conducted in an unreasonable
manner--that it was gratuitous to use a battering
ram on a door already open, to throw an explosive
device into the apartment (especially because the
police knew that Jones’s girlfriend and her six-
year-old child were present), and to tackle him
when, perhaps stunned by the explosion, he did
not immediately drop to the floor. The district
court held that the officers’ conduct was
reasonable in all respects. We are less certain.
Richards v. Wisconsin, 520 U.S. 385 (1997),
rejects an argument that drug dealers are
invariably so dangerous that no-knock entries are
proper; by the same token, police cannot
automatically throw bombs into drug dealers’
houses, even if the bomb goes by the euphemism
"flash-bang device." The police did not believe
that Jones was an unusually dangerous drug
dealer. True, his criminal record included a
weapons offense (for which Jones had received a
non-custodial sentence), and guns are common in
the drug trade, but this was a given in Richards
as well. Police had little reason to apply a
battering ram to a door that was already ajar,
and using the concussion grenade created a risk
that people close to the detonation point would
be injured. Children are especially vulnerable,
and the officers knew that one was in the
apartment. Although they peeked inside the living
room, planning not to use the device if they saw
the child, they could have missed someone in a
corner or behind the furniture. A child who hears
the door being broken down is likely to hide.
If this were a damages action seeking
compensation for injury to the occupants or the
door, the claim would be a serious one. But it is
not a damages action, so whether one would
succeed is not something we need decide. Jones
wants us to hold that the fourth amendment
precludes the use of the evidence that the
officers found in his apartment. That argument
must be rejected for a reason unrelated to the
strength of the contention that the officers
behaved inappropriately: the exclusionary rule
depends on causation. A warrant authorized the
entry, so seizure of evidence was inevitable.
Murray v. United States, 487 U.S. 533, 536-41
(1988). A battering ram, flash-bang device, or
blow to the neck could affect the seizure only by
surprising or stunning the occupants so that they
could not destroy evidence. The principal
function of a concussion grenade is to protect
officers from weapons fire, not to uncover
evidence otherwise concealed. An argument that
the suspects would have destroyed the drugs, if
only they had more time and full possession of
their faculties, is not a good reason to suppress
probative evidence of crime. See Segura v. United
States, 468 U.S. 796, 813-16 (1984). No other
causal chain could be at work, so as in other
inevitable-discovery cases the officers’ errors
(if errors they were) do not lead to suppression.
See Nix v. Williams, 467 U.S. 431 (1984). See
also United States v. Jones, 149 F.3d 715 (7th
Cir. 1998).
Jones’s statement similarly is admissible, for
his custody was lawful, and he does not contend
that 30 minutes after the entry he was still so
disoriented by the explosion that the statement
was involuntary. A confession that occurs during
unlawful custody, or was influenced by unlawfully
seized evidence, must be suppressed unless
intervening events demonstrate that the
illegality did not cause the confession. Oregon
v. Elstad, 470 U.S. 298 (1985); Brown v.
Illinois, 422 U.S. 590 (1975); Wong Sun v. United
States, 371 U.S. 471 (1963). Because Jones was in
lawful custody, cases such as Brown do not assist
him. See New York v. Harris, 495 U.S. 14 (1990).
Given the inevitable-discovery doctrine, the
police were not in possession of any forbidden
fruit. If the police had used spray paint to
decorate Jones’s door with graffiti, or stolen a
family heirloom, these unlawful acts would not
have spoiled a confession, because they would not
have induced an innocent person to confess (or
even made it more likely that a guilty person
would do so). Just so here.
Only a link between the manner of the entry and
the statement would set up a claim to
suppression, and Jones does not try to establish
such a link. His argument supposes that the
discovery of the drugs was itself unlawful. Jones
contends that the entry "was for the very purpose
of trying to find illegal drugs, and then to use
the finding of the drugs as leverage to obtain
[his] confession". The idea, in other words, is
that a person knowing that the police had the
goods on him would confess as part of a strategy
to negotiate for terms. Jones, who initiated the
conversation that culminated in his confession,
does not suggest any other way in which the
manner of entry led to his statement. Because
both the seizures and the custody were lawful,
the confession is admissible.
Affirmed
COFFEY, Circuit Judge, dissenting in part and
concurring in judgment. I am forced to write
separately because I am convinced that the
majority’s opinion is unsupported by the law and
the facts of the case, and furthermore it may
have an impact on the ability of law enforcement
personnel to protect themselves when planning a
safe entry into a known drug dealer’s residence.
Given that this case depends heavily on the
facts, I believe a more thorough description of
the facts and circumstances is in order.
The Controlled Delivery of the Drugs
On December 10, 1997, San Bernardino County,
California, Sheriff’s deputies stopped the
automobile of one Hector Baez for traffic
violations. After questioning the suspect, the
officers became suspicious and asked Baez if they
could search his vehicle. After Baez consented to
the search, the officers discovered one kilogram
of cocaine, 18.47 kilograms of marijuana, two
clips of ammunition, and a nine-millimeter
handgun.
After his arrest, Baez agreed to cooperate with
the police and informed them that he had obtained
the drugs from a Hispanic man in Los Angeles and
that he was en route to deliver them to the
defendant-Jones in Decatur, Illinois, in exchange
for $51,000. Baez agreed to cooperate with law
enforcement officers and was transported, under
surveillance, to Decatur, Illinois. Upon his
arrival, Baez made a recorded telephone call to
Jones and informed him that he was approximately
an hour away. Baez, after being fitted with an
electronic monitoring device and still under
surveillance, then drove to Jones’s apartment to
make the controlled delivery of the cocaine and
marijuana.
When Baez arrived at Jones’s apartment on
December 11, 1997, Baez was greeted by Janice
Warden, Jones’s girlfriend, and her six-year-old
son, Marcus, both of whom lived with Jones.
Warden invited Baez into the apartment and
advised him that, although Jones was not present,
he would return in about 45 minutes. Shortly
thereafter, Jones arrived at the apartment and
the two men went to Baez’ car and retrieved the
drugs from the trunk of the car and returned to
the apartment.
Thereafter, the two men engaged in a brief
conversation, and Jones explained to Baez how he
prepared crack cocaine. During their
conversation, Baez told Jones that he had to get
his pager from his car. The pager comment,
carried over the wire, was a prearranged signal
to alert the police that the narcotics
transaction had been completed and that Baez was
leaving the apartment. Once Baez left Jones’s
apartment,/1 the Emergency Response Team (ERT)
proceeded according to their planned execution of
the search warrant.
The Execution of the Search Warrant/2
Immediately after Baez left Jones’s apartment
under the pretense of getting his beeper, the
lead ERT member, Officer David Kemp, pounded on
Jones’s apartment door about five times with a
crowbar-type tool, and yelled as loud as he
could, "Decatur Police! Search Warrant! Open the
door!" Officer Kemp then waited four to five
seconds, but heard no response from inside the
apartment. After no response was forthcoming,
Officer Kemp tried the doorknob to determine the
amount of force that would be necessary to punch
the door open. The door was unlocked and Officer
Kemp opened it just enough to allow a "sliver of
light" to come into the apartment. At this time,
Officer Kemp moved aside and Officer Cody Moore,
hit the door with a battering ram./3
As the door swung open from the use of the
instrument, Officer Kemp looked into the living
room. Upon determining that there was no one
present in the living room, he threw a "flash-
bang" device/4 into the living room and stepped
aside. Just as the flash-bang detonated, the
third ERT member, Officer Scott Hastings, rapidly
entered the apartment.
As soon as Officer Hastings entered the
apartment, he began yelling, "Police, get down,
get down!" Instead of getting down, Jones, who
was seated at the table, "abruptly" stood up with
his hands at his side and, as the majority fails
to note, in a position where the officer could
not tell whether Jones was armed because he could
not see his hands. According to the testimony at
the suppression hearing, Officer Hastings
"couldn’t tell whether [Jones’s hands] were
clenched open or whether they had anything in
them." In fact, Officer Hastings "couldn’t see
[Jones] until [he] was within . . . a foot or two
from him."/5
Also contrary to the majority opinion, Jones
was not immediately tackled when he stood up.
Rather, as Officer Hastings advanced toward
Jones, he continued to holler at him to get down.
It was only after Jones failed to comply with the
officer’s repeated commands that Hastings ran
around the dining room table and tackled Jones.
According to Officer Hastings, "[a]s we fell to
the ground, I was on top of him, and I saw that
he did not have any weapons on his person.
[Jones] actually said, I don’t have anything, I
don’t have anything on me. You know, any
weapons." After determining that Jones was
unarmed, Officer Hastings removed himself from
atop Jones’s body and proceeded to handcuff him
and seat him in a chair.
Once the ERT officers secured Jones, they
conducted a thorough search of his apartment.
They discovered the 1 kilogram of cocaine and the
18.47 kilograms of marijuana on the dining room
table near a set of triple-beam scales. The
agents also found electronic digital scales, drug
paraphernalia, and one gram of crack cocaine.
Officers also recovered, which the majority fails
to note, 26 rounds of .22 caliber ammunition from
Jones’s bedroom.
While Inspectors Root and Trevor Stalets were
conducting the search, several ERT members
informed them that Jones wished to talk with
them. After approximately thirty minutes, during
which time the police conducted their systematic
search of the apartment, Jones was escorted into
one of the bedrooms with Agent Warren, Inspector
Root, and Master Sergeant Willy Hood. Agent
Warren advised Jones of his Miranda rights in the
presence of the other two officers, and Jones
verbally waived his rights and gave an oral
statement admitting that he had received the
marijuana and cocaine from Baez, and proceeded to
characterize himself as a middle man in the drug
enterprise. Jones went on to state that he was
responsible only for checking the quantity and
quality of the drugs delivered, and that he would
be willing to cooperate with law enforcement in
the future.
The Suppression Hearing
Before entering a conditional plea of guilty,
Jones filed a motion to suppress, arguing that
the method in which the officers entered the
apartment and subdued him made the execution of
the search warrant unreasonable, and that his
statement, which immediately followed this
alleged fourth amendment violation, should
therefore be suppressed under the "fruit of the
poisonous tree" doctrine./6 The district judge,
after hearing evidence from Agent Warren, Officer
Kemp, and Officer Hastings, denied Jones’s motion
to suppress, stating that the fact that "the
defendant had weapons charges in the past" and
"[t]he large amount of . . . drugs [present]
certainly would give an objective statement to a
reasonable officer that danger could certainly
await the officer and the occupants of the
building upon entry in this type of search."
(emphasis added). Based on these facts and the
applicable caselaw, the judge proceeded to deny
Jones’s motion to suppress.
On appeal, Jones argues that the district court
erred in denying his motion to suppress because
the manner in which the police executed the
search warrant was unreasonable and the
statements given to the police, at that time,
were the direct result of an alleged fourth
amendment violation and should therefore be
suppressed as fruit of the poisonous tree. The
majority attempts to answer this question in one
paragraph, without any detailed analysis of the
caselaw, by simply claiming that there is no
connection between the manner of entry and
Jones’s subsequent confession. However, the
Supreme Court (not to mention this court) has
mandated that we undertake a more thorough
analysis. See Taylor v. Alabama, 457 U.S. 687,
690 (1982) ("This Court identified several
factors that should be considered in determining
whether a confession has been purged of the taint
of the illegal arrest: [t]he temporal proximity
of the arrest and the confession, the presence of
intervening circumstances, . . . and,
particularly, the purpose and flagrancy of the
official misconduct."); see also Dunaway v. New
York, 442 U.S. 200 (1979); Brown v. Illinois, 422
U.S. 590 (1975); Wong Sun v. United States, 371
U.S. 471 (1963); United States v. Ienco, 182 F.3d
517 (7th Cir. 1999); United States v. Patino, 830
F.2d 1413 (7th Cir. 1987).
"When reviewing the denial of a motion to
suppress, we review the district court’s
conclusions of law de novo, and we review the
court’s findings of fact for clear error." United
States v. Taylor, 196 F.3d 854, 859-60 (7th Cir.
1999).
As we have stated in the past:
The exclusionary rule is a judicially created
remedy that prohibits the government from
introducing at the defendant’s trial evidence of
guilt obtained through violations of the Fourth
Amendment. United States v. Leon, 468 U.S. 897,
906, 104 S. Ct. 3405, 82 L. Ed.2d 677 (1984). A
district court’s application of the fruit of the
poisonous tree doctrine in the context of the
Fourth Amendment is reviewed de novo. United
States v. Elie, 111 F.3d 1135, 1140 (4th Cir.
1997). The test for determining the admissibility
of evidence obtained through a chain of causation
that began with an illegal arrest is "’whether,
granting establishment of the primary illegality,
the evidence to which instant objection is made
has been come at by exploitation of that
illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’"
Wong Sun v. United States, 371 U.S. 471, 488, 83
S. Ct. 407, 9 L. Ed.2d 441 (1963) (quoting
Maguire, Evidence of Guilt, 221 (1959)). Thus, if
the causal chain between the initial illegality
and the evidence sought to be excluded is broken,
the link to the evidence is sufficiently
attenuated to dissipate the taint of illegal
conduct. United States v. Green, 111 F.3d 515,
521 (7th Cir. 1997). It has been noted that the
purpose of this attenuated connection test is to
mark the point of diminishing returns of the
deterrence principle inherent in the exclusionary
rule. LaFave, Search and Seizure, sec. 11.4(a),
at 235 (1996). Moreover, "[i]t is critical that
courts wrestling with ’fruit of the poisonous
tree’ issues keep that fundamental notion in
mind, for when it is lost sight of the results
can be most unfortunate." Id.Ienco, 182 F.3d at 526. Therefore, Jones must
establish that the police officers’ entry into
his home violated the fourth amendment and, if he
succeeds in establishing such a violation, that
the violation resulted in (or was connected to)
his confession statement. See, e.g., United
States v. Nava-Rameriz, No. 99-4123, 2000 WL
368399 at *2 (10th Cir. Apr. 10, 2000).
In an attempt to establish a fourth amendment
violation, Jones argues that the ERT’s search of
his apartment was unreasonable due to the "para-
military" manner in which the ERT executed the
search warrant. Specifically, Jones points to the
ERT’s use of: 1) a battering ram to open the
unlocked front door to his apartment; 2) the
flash-bang device; and 3) excessive force in
taking him into custody.
Instead of answering these allegations, the
majority gratuitously gift wraps a section 1983
claim by stating that "[i]f this were a damages
action seeking compensation for injury to the
occupants or the door, the claim would be a
serious one." Then the majority, without any
detailed analysis, merely draws the unsupported
conclusion that there is no connection between
the manner of entry (which the majority suggests
violates the fourth amendment)/7 and the
confession.
Instead of focusing on the connection between
the officers’ entry and the confession (the
majority makes little effort to distinguish the
facts of this case from cases like Taylor,
Dunaway, Brown, Wong Sun, Ienco, and Patino), I
am convinced that the officers, even though I
might not have implemented the same modus
operandi, were, under the facts and circumstances
of this case, acting in a legal albeit aggressive
manner. As the saying goes, don’t judge a man
until you have walked a mile in his boots. See
Graham v. Connor, 490 U.S. 386, 396 (1989) ("Not
every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,
. . . violates the Fourth Amendment.").
Consequently, I am of the opinion that there is
no need to reach the attenuation question that
the majority addresses.
The ERT’s Use of a Battering Ram to Open Jones’s
Front Door
Initially, Jones argues that the ERT’s execution
of the search warrant was unreasonable because
"[t]here was simply no basis for agents to use a
battering ram to break open an unlocked door."
But, Jones’s argument is misplaced.
In this case, Officer Kemp pounded on Jones’s
apartment door approximately five times with a
crowbar-type tool while loudly announcing
"Decatur Police! Search Warrant! Open the Door!"
He then waited four to five seconds, and still
there was no response from within the apartment
nor did anyone appear at the door to open it. So,
pursuant to instructions from his ERT commander,
Officer Kemp tried the doorknob, and discovering
that the doorknob turned, opened the door
slightly, and stepped aside. Officer Moore then
hit the door with a hand-held battering ram and
the door flew open.
Under 18 U.S.C. sec. 3109, a law enforcement
officer is permitted to "break open any outer or
inner door or window of a house . . . to execute
a search warrant, if, after notice of his
authority and purpose, he is refused admittance."
The function of section 3109 is to "afford the
occupant notice so that he may open the door
peaceably." See United States v. Bragg, 138 F.3d
1194, 1195 (7th Cir. 1998). As Bragg points out,
"[i]f the officer ’is refused admittance’--and
failure to answer the door is a form of refusal
. . .--then the door may be broken to execute the
warrant." Id. (emphasis added).
The ERT officers complied with section 3109.
They clearly announced their presence by knocking
on the door five times while shouting "Decatur
Police! Search Warrant! Open the door!" They then
provided Jones, who was approximately fifteen
feet from the door, with ample opportunity (at
least seven seconds according to the district
court) to either open the door or to verbally
acknowledge their presence. In United States v.
Markling, 7 F.3d 1309, 1318 (7th Cir. 1993), we
found that a wait of seven seconds was sufficient
where the apartment was small and there was no
reason to think the occupant could not hear the
police knock and announce. In this case, the
trial judge made a specific finding that the
officers waited "at least a minimum of seven
[seconds] and clearly more." Here, as in
Markling, the apartment was small and there was
no reason, such as a stereo playing loud music,
why Jones could not hear Officer Kemp knock and
announce.
I agree with the district court that there is
no bright-line rule regarding how much time is
reasonable. See, e.g., United States v. Spikes,
158 F.3d 913, 926 (6th Cir. 1998), cert. denied,
119 S. Ct. 836 (1999) ("The Fourth Amendment’s
’knock and announce’ principle, given its fact-
sensitive nature, cannot be distilled into a
constitutional stop-watch where a fraction of a
second assumes controlling significance.");
United States v. Jones, 133 F.3d 358, 361 (5th
Cir.), cert. denied, 118 S. Ct. 1854 (1998) ("We
will resist the temptation to create a bright-
line standard for all cases, i.e., five seconds
or less is not long enough and more than five
seconds is."). Thus, courts have refused to
establish a specific time frame or set of
conditions before an officer may use a battering
ram to forcefully enter a residence because such
a determination must depend on the particulars of
each case. See Markling, 7 F.3d at 1318; see also
Spikes, 158 F.3d at 926 ("Whether police officers
paused long enough before admitting themselves
into a home thus entails ’a highly contextual
analysis, [requiring] examin[ation of] all the
circumstances of the case.’") (quoting United
States v. Bonner, 874 F.2d 822, 824 (D.C. Cir.
1989)). Accordingly, I am convinced that the ERT,
under the facts of this case, reasonably
construed Jones’s failure to answer his door
after at least seven seconds as an implied
refused admittance, see Bragg, 138 F.3d at 1195,
and thus Officer Moore’s use of a battering ram
to open the apartment door, which may have been
chained, booby trapped, otherwise blocked, or had
people hiding behind it who were positioned to
physically assault, or fire upon, the officers,
was within the limits of the fourth amendment.
The ERT’s Use of a Flash-Bang Device
Jones next argues that the ERT’s execution of
the search warrant was unreasonable because
"[t]here was simply no basis for agents to . . .
fire an explosive device into an apartment in
which a six-year-old child was present." But,
once again, Jones ignores the facts of this case.
It is important to note that Jones had just
received a very large quantity of drugs (almost
20 kilograms) from Baez, and, as pointed out
earlier, it is well known that drug dealing is a
crime infused with violence. See, e.g., United
States v. Brown, 188 F.3d 860, 865 (7th Cir.
1999); United States v. Gambrell, 178 F.3d 927,
929 (7th Cir.), cert. denied, 120 S. Ct. 281(1999); United States v. Stowe, 100 F.3d 494, 499
(7th Cir. 1996). Beyond the violent nature of the
drug trade and the fact that when this amount of
narcotics is present drug dealers are likely to
be armed (as was Baez), the ERT knew that Jones
had been previously arrested for, and pled guilty
to, a gun violation. According to testimony, ERT
members also had other "knowledge either directly
or through others about Mr. Jones possessing
firearms" on two other occasions. It was,
therefore, reasonable for them to assume that
Jones might be armed, a belief that was further
supported by the discovery of 26 rounds of
ammunition, ammunition that obviously was not
used for art displays or decorations.
Under circumstances such as these, where the
police have a sound basis for believing that an
occupant is armed, I agree with the trial judge
and believe that the use of a flash-bang is an
appropriate means of disorienting the occupant so
that officers can protect themselves when they
enter the apartment in order to serve the search
warrant and proceed with the authorized search of
the premise. See United States v. Myers, 106 F.3d
936, 940 (10th Cir. 1997); Langford v. Superior
Court, 729 P.2d 822, 827 (Cal. 1987); see also
Mark V. Lonsdale, CQB, A Guide to Unarmed Combat
and Close Quarter Shooting; Specialized Tactical
Training Unit 111 (1999) ("The stun grenade
[flash-bang] may well have saved more lives than
any other single piece of equipment in the SWAT
inventory.").
While I certainly am not of the opinion that
officers should force entry in all narcotics
searches, see Richards, 520 U.S. at 393-94, I do
believe that when officers are faced with an
individual who has a criminal record involving
guns, and the officers have information that the
suspect is still involved with weapons, and that
individual has just purchased approximately 20
kilograms of narcotics, the procedure the police
used in executing the search warrant in this case
was reasonable. I am, therefore, of the opinion
that the majority’s attempt to make the potential
harm to a child a focal point of the case is
misplaced (maybe even inaccurate because the
record does not reflect that there were any
hiding places for a child). The majority’s
attempt to hypothesize about the existence of a
hiding child (whom for all we know would have
been protected from the effects of the flash-
bang) is immaterial to what actually happened in
this case. As discussed above, police conducted
a fast visual inspection of the room and did not
observe any children present. It was only after
concluding that no children were present that the
flash-bang was deployed and the police entered
the apartment./8
Because I refuse to hold that officers are
barred from using the necessary, precautionary
measures such as the flash-bang device used in
this case, I agree with the trial judge that,
under the facts and circumstances of this case,
the ERT’s use of the flash-bang was within the
limits of the fourth amendment.
The ERT’s Use of Force to Tackle Jones
Finally, Jones argues that the ERT’s execution
of the search warrant was unreasonable because
"[t]here was simply no basis for agents . . . to
rush over to [him] and strike him in the head and
tackle him to the floor, when he did not
immediately lay down on the floor as commanded."
In determining the reasonableness of the police
officers’ use of force in executing a drug search
warrant, we balance the nature and quality of the
intrusion of the defendant’s fourth amendment
interests against the nature of the threat the
defendant posed to the police. See Estate of
Phillips v. City of Milwaukee, 123 F.3d 586, 592
(7th Cir. 1997), cert. denied, 118 S. Ct. 1052(1998) (citing Graham v. Connor, 490 U.S. 386,
396 (1989)).
Here, after Officer Hastings entered the
apartment, he repeatedly yelled at Jones to "get
down." Despite Officer Hastings’s orders, Jones
abruptly stood up with his hands at his side and
Officer Hastings "couldn’t tell whether [Jones’s
hands] were clenched open or whether they had
anything in them." The majority ignores the
obvious fact that Jones’s failure to comply with
Officer Hastings’s commands combined with Jones’s
failure to keep his hands in sight caused Officer
Hastings to fear for his safety. Cf. United
States v. Denney, 771 F.2d 318, 322 (7th Cir.
1985). In response to the apparent threat that
Jones posed, and remembering that Jones had
previously pled guilty to carrying a loaded
firearm, I am of the opinion that the force
Officer Hastings used to restrain and arrest
Jones was justified. Furthermore, as soon as the
officer determined that Jones was unarmed, he got
off Jones, cuffed him, and seated him in a chair.
Accordingly, I am of the opinion that Officer
Hastings’s tackling of Jones in order to ensure
his and the other officers’ safety was not
violative of the fourth amendment.
I refuse to join in a mandate that demands that
law enforcement officers endanger their lives by
outlawing the use of the tactics used in this
case just because two members of the court would
do something different with the benefit of
hindsight. It is often said that judges have
minutes, hours, days, weeks, and even months to
make a decision, but officers have only a split
second to make a life or death decision when
entering the residence of a drug dealer and
determining exactly how to restrain a person who
has a criminal history involving weapons, has
just purchased approximately 20 kilograms of
narcotics, fails to follow officer instructions,
and keeps his hands out of sight (whether
intentionally or unintentionally). Recognizing
the inherent dangers police officers face every
day (especially those dealing with narcotics
arrests) and ever cognizant that one should not
judge a man until you have walked a mile in his
boots,/9 I am of the opinion that the officers’
actions, while aggressive,/10 were within the
limitations of the fourth amendment.
Consequently, there is no reason to determine
whether Jones’s confession was "connected" to the
manner in which the officers entered the
apartment and arrested him.
All this being said, I join in the decision to
affirm the denial of Jones’s motion to suppress.
/1 After Baez left Jones’s apartment, F.B.I. Special
Agent Jeffery Warren arrested him and detained
him in a Decatur police transport van while
Decatur police officers executed the search
warrant.
/2 Contrary to the majority’s statement that "[t]he
police did not believe that Jones was an unusually
dangerous drug dealer," there is more than ample
evidence in the record to establish that Jones
might very well have proved to be a very real
danger to the lives and safety of the police
officers. In anticipation of the controlled
delivery, Illinois Police ran a criminal history
check of Jones, and it revealed that Jones had a
1991 arrest for unlawful use of a weapon. Jones
pled guilty to the charge, and the Cook County,
Illinois, court sentenced him to one year of court
supervision. Inspector Ed Root briefed the ERT
members about Jones’s weapons violation and advised
the team that this should be taken into account in
their planning of the entry into Jones’s apartment.
ERT members also testified that they had "knowledge
either directly or through others about Mr. Jones
possessing firearms" on two other occasions and
"that it was a possibility that he could be [armed]
again." (emphasis added). In addition to this,
Jones had just purchased a large amount of
narcotics (almost 20 kilos) for $51,000. It is
reasonable to assume that someone willing to make
such a large expenditure would also be willing to
use a weapon to safeguard it as well as himself.
The particular danger Jones represented is also
demonstrated by the fact that when Baez was
initially en route to deliver the narcotics to
Jones he felt it necessary to be armed with a 9mm
handgun and two clips of ammunition. As a result of
this information, ERT members planned their entry
into Jones’s apartment.
/3 The majority joins the defendant in his claim and
states that the "[p]olice had little reason to
apply a battering ram to a door that was already
ajar." However, a battering ram is frequently used
by law enforcement when executing a search warrant
for a drug dealer’s or other suspect’s (whom they
reasonably believe might be armed) residence, and
may be necessary for a number of reasons in
situations in which an individual refuses to answer
the door. For example, given that this was a search
of a premise where a large stash of narcotics were
being held it is certainly possible that the front
door to such a residence might be booby trapped.
Even without assuming any such trap, it is also
possible that the use of the battering ram was
necessary because the officers could not tell,
because the door was only open very slightly,
whether objects or armed individuals were
positioned directly behind the door. It is also
possible that the door was chained or had some
other form of additional restraint (such as a chair
propped against the door or metal restraint) that
would have prohibited the officers from gaining a
fast entry, and therefore exposed them to unknown
dangers, whether it be by physical assault or
gunfire. I am firmly convinced that the use of a
battering ram was probably the only safe method to
ensure that the door opened as quickly as possible,
both securing the officers’ safety and preventing
Jones from destroying evidence.
/4 A "flash-bang" is not a "bomb" as the majority
improperly labels it. Rather it is a non-lethal
device that produces a flash and a gunshot-type
noise that stuns and disorients for about six to
eight seconds. This diversionary tactic is
effectively used by police departments, the F.B.I.,
and even military units to disorient suspects and
ensure safety. See Jack H. McCall, Jr., Blinded by
the Light: International Law and the Legality of
Anti-Optic Laser Weapons, 30 Cornell Int’l L.J. 28
(1997). The majority, in an unsupported conclusion,
claims that the use of this device "created a risk
that people close to the detonation point would be
injured" and that "[c]hildren are especially
vulnerable." If, as the majority hypothesizes, a
child was hiding behind a piece of furniture, the
child would not be "especially vulnerable," but
rather would be protected from the bright light of
the device. The fact that the child may be exposed
to a potentially loud noise, does not, in my view,
warrant the exclusion of the use of such a device.
Rather than the unsupported statements of the
majority, the record reflects that law enforcement
threw the diversionary device into the room only
after assuring themselves (to the extent that was
humanly possible under the circumstances) that no
children were present in the immediate area; a
belief that turned out to be accurate. We note that
it is ironic that law enforcement apparently had
more concern for the child than did the defendant-
Jones, who placed the child in an apartment with a
large quantity of narcotics, drug paraphernalia, 26
live rounds of ammunition, and where gunfire might
erupt at any time.
/5 At the suppression hearing, the ERT officers
testified that although the dining room is not a
separate room from the living room, it is not
visible from the front door because of the "L"
shape configuration of the living unit.
/6 In his motion to suppress filed with the trial
court, Jones also argued that the physical evidence
seized from his apartment should be suppressed
because the officers executing the search warrant
did not provide him with a signed copy of the
search warrant as required by Fed. R. Crim. P.
41(d). While the majority correctly applies the
exclusionary rule to the physical evidence seized
from Jones’s residence (i.e. the drugs), there is
no need to address the issue because Jones has
abandoned this argument on appeal.
/7 The majority relies on Richards v. Wisconsin, 520
U.S. 385 (1997), for its claim that it is "less
certain" than the district court (and presumably
myself) that the police did not violate the fourth
amendment. I am puzzled by the majority’s reliance
on Richards because it dealt with the single
question of whether the state of Wisconsin could
legalize "no-knock" entries for search warrants in
each and every narcotics case. In a very narrow
holding, the United States Supreme Court stated
that while Wisconsin could not create such a
general rule, the facts of the particular case
justified a "no-knock" entry. Given that it is
undisputed that the officers knocked and announced
their presence in this case, I find the majority’s
reliance on Richards inappropriate, unconvincing,
and inaccurate.
/8 We note that if a child was present, a flash-bang
device which disorients a suspect may actually
serve to protect the child because cross-fire
between officers and the suspect is less likely to
erupt.
/9 156 officers in 1998 and 130 officers in 1999 died
in the line of duty. See Nation in Brief, The
Washington Post, Dec. 30, 1999 (1999 WL 30310974).
/10 See Graham, 490 U.S. at 397 ("[T]he question is
whether the officers’ actions are ’objectively
reasonable’ in light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation.")