David Doran v. Dennis C. Eckold ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1810
___________
David Doran, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Dennis Eckold, in his official capacity * Western District of Missouri.
as President of the Board of Police *
Commissioners of Kansas City, et al., *
*
Defendants - Appellants, *
*
___________
Submitted: October 20, 2004
Filed: June 6, 2005
___________
Before LOKEN, Chief Judge, HEANEY, WOLLMAN, MORRIS SHEPPARD
ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON,
GRUENDER and BENTON, Circuit Judges, en banc.
___________
LOKEN, Chief Judge.
At 10:00 p.m. on the evening of August 11, 1998, Kansas City police executed
a warrant to search the home of David Doran for drugs and other contraband, using
a tactic called “dynamic entry.” Officer Ty Grant, serving as “ram officer,” yelled
“Police, search warrant,” and immediately hit the front door with his ram, breaking
in on the third hit. Officer Mark Sumpter as point man entered the house before its
occupants had time to answer the door. When Sumpter reached the kitchen doorway,
he saw Doran running toward him pointing a handgun. Sumpter testified that he
yelled, “Police, search warrant, get down,” and fired when Doran did not lower his
weapon. Doran was hit twice, sustaining serious injuries. He commenced this action
under 42 U.S.C. § 1983, asserting Fourth Amendment damage claims against Officer
Sumpter for use of excessive force; the investigating officer, Wesley Williamson, for
an illegal warrant search; Officer Grant for illegal entry; Sergeant Eric Greenwell for
failure to supervise Grant; and the Board of Police Commissioners for failure to train
its officers regarding the Fourth Amendment restrictions on no-knock entries and for
deliberate indifference to a custom and practice of no-knock entries.
At trial, Doran testified he was asleep when he heard the ramming. Thinking
the noise was a break-in or a fight on the front porch, he grabbed a pistol from under
his pillow, ran into the kitchen, saw laser lights and realized it was the police, and
bent to set his gun on the floor when he was shot. After a four-day trial, the jury
found in favor of Officer Sumpter, rejecting Doran's excessive force claim. However,
the district court ruled as a matter of law that exigent circumstances did not justify the
no-knock entry. As a result, the jury instructions on the illegal entry claim against
Officer Grant and the failure-to-train claim against Sergeant Greenwell virtually
directed a verdict in favor of Doran on those claims. The jury returned a verdict in
excess of two million dollars for Doran on those claims and on his claims against the
Board, finding that Doran’s injuries were the direct result of the Fourth Amendment
violations. The district court entered judgment on this verdict. Grant, Greenwell, and
the Board appeal, arguing inter alia that exigent circumstances justified the no-knock
entry. We agree and therefore reverse.
I. Background.
In July 1998, Kansas City Police received an anonymous tip about criminal
activity allegedly occurring at the Doran home. The tipster alleged:
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• that methamphetamine was being manufactured at the house to be searched;
• that Doran was selling crack cocaine and methamphetamine at the front door
throughout the day;
• that drugs were stored in dresser drawers throughout the house;
• that guns were kept in the bedroom; and
• that Doran’s 26-year-old son Joseph lived in the house and had recently been
arrested for possessing a sawed-off shotgun.
Narcotics Detective Wesley Williamson verified the house’s location, determined that
cars parked at that location were registered to the Doran family, and collected bags
of trash in front of the residence. In the trash, he found fifty sandwich bags with the
corners cut out, a common way for traffickers to package and distribute narcotics;
methamphetamine residue in two plastic bags, three plastic sandwich bag corners, and
a pill bottle; an empty box of a “Dristan” product that contains pseudoephedrine,
often used in the manufacture of methamphetamine; and mail tending to confirm that
the trash belonged to the Dorans. Detective Williamson recited these facts in a
warrant application and obtained a warrant to search the Doran home.
The task of executing the warrant was assigned to the Police Department’s
Street Narcotics Unit, a specialized unit whose primary function is to execute search
warrants, usually on drug houses. Sergeant Greenwell was in charge of the Unit’s
entry team. Before executing the warrant, Greenwell reviewed the warrant and
warrant affidavit, learning about the illegal activity alleged in the anonymous tip.
Sergeant Greenwell and Detective Williamson then drove by the Doran house to
verify its location and to “determine any tactical concerns.” Based on this
information and his experience with methamphetamine labs, Sergeant Greenwell
concluded that this would be a high-risk entry and instructed his team to make a
dynamic entry.
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On the evening of August 11, the entry team gathered at an assembly point a
few blocks from the Doran home. Because of the hazards associated with
methamphetamine labs, Greenwell arranged for a fire department pumper and an
ambulance to wait at the assembly point. Members of the entry team other than
Officer Grant wore respirators to reduce the risk from chemical fumes. After
Sergeant Greenwell briefed the entry team, the team proceeded to Doran’s house and
executed the warrant. Doran was shot soon after Officer Sumpter entered the house.
The police completed the search after tending to Doran, finding one ounce of
marijuana in the son’s room but neither a methamphetamine lab nor other illegal
drugs. Doran was not charged with an offense. This lawsuit followed.
II. The District Court’s Rulings and the Record on Appeal.
Prior to trial, all defendants moved for summary judgment on Doran’s various
§ 1983 claims. As relevant here, the court granted Detective Williamson summary
judgment on Doran’s claim of illegal search, concluding that Williamson had
sufficiently verified the anonymous tip to have “an objectively reasonable belief in
the existence of probable cause for the issuance of a search warrant.” Doran dropped
his remaining claim against Williamson for unlawful execution of the warrant.
Eliminated as a defendant, Williamson -- who by then had become an agent of the
federal Bureau of Alcohol, Tobacco, and Firearms -- did not testify at trial. The
district court denied Officer Sumpter summary judgment on Doran’s excessive force
claim. The court also denied Grant, Greenwell, and the Board summary judgment on
Doran’s claims relating to the no-knock manner in which the warrant was executed,
concluding “there is insufficient evidence of exigent circumstances to justify
dispensing with the knock and announce requirement,” and there were material fact
disputes over whether the entry team announced, knocked, and waited an appreciable
period before entering.
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Though the district court reserved a final ruling on Doran’s knock-and-
announce claims because of potential fact disputes, the court properly recognized that
the question of exigent circumstances, like the ultimate issue of Fourth Amendment
reasonableness, is an issue of law for the court. See United States v. Cooper, 168
F.3d 336, 339 (8th Cir. 1999); United States v. Mattison, 153 F.3d 406, 410 (7th Cir.
1998). Therefore, both before and during the trial, the district court excluded
evidence that was relevant to the question of exigent circumstances, even if it was
part of the summary judgment record on the issue, if it was either unduly prejudicial
or not relevant to fact issues to be decided by the jury. For example, because the
court excluded evidence tending to challenge the lawfulness of the valid search
warrant, the warrant and warrant affidavit were not offered at trial. Similarly, the
police “DRAGNET” report summarizing the anonymous tip was not admitted into
evidence because it contained a potentially prejudicial reference to the son’s alleged
arrest for possession of a sawed-off shotgun.
The court made its final ruling on the exigent circumstances issue during the
instructions conference held at the close of the trial evidence. Consistent with its
pretrial summary judgment ruling, the district court “ruled as a matter of law that
there were not exigent circumstances which permitted the waiver of the knock or wait
rule, and we’ll not be submitting that to the jury.” In making this ruling, the court
declared that it considered “all of the evidence which is admissible during the course
of trial, as well as Plaintiff’s Exhibit 8 [the DRAGNET tip report] . . . [and] all of the
evidence that, in fact, has been presented to me.” Neither party objected to the court
considering evidence that was only presented during pretrial motion proceedings to
decide the legal issue of whether exigent circumstances justified the no-knock entry.
Indeed, given the need to withhold irrelevant or unduly prejudicial information from
the jury’s consideration, we agree with the district court’s approach to this issue,
though our task on appeal would be easier if the court had defined more precisely
what evidence not in the trial record “has been presented to me.” Therefore, we will
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review the same record that the district court considered in making its legal
determination of no exigent circumstances.1
III. The Controlling Legal Standard.
In Wilson v. Arkansas, the Supreme Court held for the first time that the
“common-law ‘knock and announce’ principle forms a part of the reasonableness
inquiry under the Fourth Amendment.” 514 U.S. 927, 929 (1995). The Court
cautioned, however, that “[t]he Fourth Amendment’s flexible requirement of
reasonableness should not be read to mandate a rigid rule of announcement that
ignores countervailing law enforcement interests.” Id. at 934. The Court noted
examples of circumstances that may justify an unannounced entry, such as a threat of
physical violence or the likely destruction of evidence, but declined to “attempt a
comprehensive catalog of the relevant countervailing factors.” Id. at 935-36.
The Court has applied this general principle in three subsequent cases. In
Richards v. Wisconsin, the Court rejected a state supreme court’s decision to adopt
a blanket exception to the Fourth Amendment’s knock-and-announce requirement
when police execute a search warrant in a felony drug investigation. 520 U.S. 385,
388 (1997). Though acknowledging “that felony drug investigations may frequently
present circumstances warranting a no-knock entry,” the Court held that a case-by-
case analysis of the facts of a particular entry is nonetheless required:
In order to justify a “no-knock” entry, the police must have a
reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile, or that
1
For this reason, we grant appellee’s motion to take judicial notice of the search
warrant and supporting affidavit, and appellants’ motion to file a supplemental
appendix containing Plaintiff’s Exhibit 8, materials presented to and considered by
the district court at the summary judgment stage but not admitted at trial.
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it would inhibit the effective investigation of the crime by, for example,
allowing the destruction of evidence. This standard -- as opposed to a
probable-cause requirement -- strikes the appropriate balance between
the legitimate law enforcement concerns at issue in the execution of
search warrants and the individual privacy interests affected by no-
knock entries. This showing is not high . . . .
Id. at 394 (citations omitted). The Court went on to hold that the no-knock entry at
issue was reasonable and affirmed the judgment of the state court.
In United States v. Ramirez, the Court reversed a Ninth Circuit holding that
more than a “mild exigency” must be shown to justify a no-knock entry in which
property is destroyed. 523 U.S. 65, 69-70 (1998). In Ramirez, a reliable confidential
informant told police that he had seen a violent prison escapee at the Ramirez home
and that Ramirez might have a stash of guns and drugs in his garage. The Court held
that the police “certainly had a ‘reasonable suspicion’ that knocking and announcing
their presence might be dangerous to themselves or to others,” so it was “clearly
reasonable” to break a garage window during the no-knock entry. Id. at 71-72.
Finally, in United States v. Banks, the Court rejected the Ninth Circuit’s “four-
part scheme for vetting knock-and-announce entries.” 540 U.S. 31, 41 (2003). In
Banks, police executing a warrant to search for cocaine arrived at the premises to be
searched with no reasonable suspicion justifying a no-knock entry and waited only
fifteen or twenty seconds after the initial knock before entering. Emphasizing again
that the totality of the circumstances must be examined to determine whether exigent
circumstances exist, the Court held that the risk of imminent drug disposal was an
exigency that justified the forcible entry. Id. at 40.2
2
The Court noted in Ramirez, 523 U.S. at 73, that its decisions in Wilson and
Richards “serve as guideposts in construing” the exigent circumstances exception to
18 U.S.C. § 3109. Accord Banks, 540 U.S. at 42-43. Thus, our contrary statement
in United States v. Tavares, 223 F.3d 911, 916 n.5 (8th Cir. 2000), is overruled.
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IV. Discussion.
The district court explained the bases for its exigent circumstances ruling in an
opinion denying defendants’ post trial motions. The court emphasized that the police
did not obtain a no-knock warrant to search the Doran home. The court also cited the
following additional factors as supporting its conclusion that exigent circumstances
did not justify Officer Grant’s no-knock entry:
• The facts known to the police as they approached the Doran house were
the same facts known when they applied for the warrant.
• The anonymous tip did not come from a reliable confidential informant,
and the information was not verified or corroborated.
• The tip that drug sales were occurring at the Doran house was not
corroborated by a controlled buy or surveillance.
• The trash search uncovered drug residue, but no evidence linked the
trash to Doran’s house.
• The police did not check the criminal history of Doran and his wife,
which would have revealed no prior arrests.3
• The allegation that Doran’s son was recently arrested for possession of
a sawed-off shotgun was not verified.
3
Regarding Mrs. Doran, who did not testify, the court’s statement appears to
be based on assertions in various memoranda filed by Doran’s attorneys, who also
filed a motion in limine in September 2002, some three months before trial, seeking
an order excluding evidence that Mrs. Doran and her sister “had criminal records
involving illegal drugs and/or prostitution.” As the motion in limine was granted, the
criminal history facts are not in the record on appeal. It is undisputed that the police
investigators did not do criminal history checks on the Dorans and their son prior to
obtaining and executing the search warrant.
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• The entry team conducted no surveillance to determine if the son was
home or lights were on before the nighttime entry.
• Officer Grant routinely operated the ram as he did in this case --
announce “police, search warrant,” and simultaneously break in with the
ram without otherwise knocking or waiting for a response.
We review the district court’s exigent circumstances ruling de novo. Cooper,
168 F.3d at 339. The district court’s analysis of the exigent circumstances issue is
contrary to the Supreme Court’s knock-and-announce decisions in significant
respects. First, the district court erred in emphasizing the absence of no-knock
authority in the search warrant. As the Court said some years ago in Dalia v. United
States, 441 U.S. 238, 257 (1979):
Nothing in the language of the Constitution or in this Court’s decisions
interpreting that language suggests that . . . search warrants also must
include a specification of the precise manner in which they are to be
executed. On the contrary, it is generally left to the discretion of the
executing officers to determine the details of how best to proceed with
the performance of a search authorized by warrant -- subject of course
to the general Fourth Amendment protection “against unreasonable
searches and seizures.”
In Richards, the Supreme Court confirmed this principle when it upheld a no-knock
entry based on what the officers encountered when executing the warrant, even
though the issuing magistrate had denied a request for a no-knock warrant. 520 U.S.
at 395-96 & n.7; see Banks, 540 U.S. at 36-37. Of course, state law may require, by
statute or judicial decision, that law enforcement officers who have reason to believe
that exigent circumstances justify a no-knock entry include a request for that authority
in the warrant application. See Davis v. State, 859 A.2d 1112, 1124-26 (Md. 2004)
(collecting conflicting authorities from various States). But for Fourth Amendment
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purposes, the relevant question is whether the police have reasonable suspicion of
exigent circumstances at the time they execute the warrant.
Second, the district court erred in emphasizing that the facts known to the
police as they approached the Doran house were the same facts known when they
applied for the warrant. To be sure, many exigent circumstances cases have turned
on facts that unfolded as the police approached the house to be searched, or after they
initially knocked. See, e.g., Richards, 520 U.S. at 388-89. But the Fourth
Amendment analysis turns on the totality of the circumstances, including facts
gathered by the police before they applied for the warrant. See United States v.
Scroggins, 361 F.3d 1075, 1081-82 (8th Cir. 2004). The district court’s approach
would require that the police request no-knock authority whenever the basis for a
warrant application might justify a no-knock entry. Such a rule might encourage
excessive use of the no-knock tactic and would be contrary to Supreme Court
decisions applying the Fourth Amendment’s reasonableness standard. Therefore, if
the facts known prior to obtaining the warrant justify a no-knock entry, and if no
contrary facts are discernable to the officers who execute the warrant, the no-knock
entry is constitutionally reasonable.
Third, the district court concluded that the prior investigation by “the police”
was inadequate and then attributed these inadequacies to the Street Narcotics Unit
officers brought in solely to execute the warrant. This analysis of the police conduct
in gross would be proper in deciding a motion to suppress evidence in a criminal
prosecution of Doran arising out of the search. But § 1983 liability is personal. The
question here is whether the conduct of Officer Grant and Sergeant Greenwell was
constitutionally unreasonable. The answer to that question must take into account the
settled principle that law enforcement officers may rely on information provided by
others in the law enforcement community, so long as the reliance is reasonable. See
United States v. Hensley, 469 U.S. 221, 232 (1985); Baker v. McCollan, 443 U.S.
137, 145-46 (1979); Brown v. Nutsch, 619 F.2d 758, 764-65 (8th Cir. 1980).
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Fourth, the district court relied on the fact that Officer Grant “routinely
operated the ram as he did in this case.” But Sergeant Greenwell made the decision
to make the no-knock entry after evaluating all the circumstances and assigned
Officer Grant the role of ram officer. Having been briefed by Sergeant Greenwell,
Grant had no constitutional duty to verify that exigent circumstances attended
execution of the warrant before carrying out his assignment. Greenwell testified that
he often assigned Grant the role of ram officer for high-risk entries. Thus, Grant’s
testimony that he employed the dynamic entry tactic whenever he was assigned to be
ram officer said nothing about the prevalence or reasonableness of the tactic and did
not establish a Fourth Amendment violation.
In addition to these faulty legal premises, the district court’s exigent
circumstances analysis gave undue weight to certain portions of the pretrial record,
while ignoring others. The court focused on what it considered to be an incomplete
investigation to verify the anonymous tip. But the court brushed aside the most
significant corroborating evidence -- the trash search -- because “there was no
evidence that the drug residue or the trash bag in which it was found was linked to the
Doran residence.” The evidence was that four trash bags were collected from in front
of Doran’s house. The bags contained drug residue and pieces of mail addressed to
the Dorans. Even if Detective Williamson did not testify that the mail and the drug
residue came from the same bag, it was wrong to conclude that the trash search did
not corroborate critical aspects of the anonymous tip. The tip reported daily drug
sales from the house, suggesting the presence of small quantities of narcotics that are
readily disposable; the trash contained multiple sandwich bags with the corners cut.
The tip reported on-going manufacture of methamphetamine; the trash contained six
different containers with methamphetamine residue. Moreover, the court’s statement
that the trash “contained no evidence of any of the chemicals or apparatus used to
make methamphetamine” was simply wrong. The trash contained an empty box of
a product containing pseudoephedrine, a methamphetamine precursor. Of course, one
box of Dristan does not confirm the presence of a meth lab. But the fact-finding
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underlying the district court’s exigent circumstances ruling was nonetheless clearly
erroneous. The trash analysis tended to show that the anonymous tip was “reliable
in its assertion of illegality, not just in its tendency to identify a determinate person.”
Florida v. J.L., 529 U.S. 266, 272 (2000).
There remains the question whether exigent circumstances justified Sergeant
Greenwell’s decision to use the no-knock method of executing the warrant to search
Doran’s house. Before executing the warrant, Greenwell reviewed the warrant and
warrant affidavit, interviewed the investigating officer, and drove by the Doran house.
This was a reasonable level of research for the head of a team brought in to execute
the warrant. Greenwell learned that the house was suspected of harboring a
clandestine methamphetamine lab. That fact has justified no-knock entries in prior
cases.4 Consistent with these cases, Greenwell testified at trial:
Q. What kind of dangers do you encounter in terms of officer safety
when you enter . . . what you presume to be a meth lab?
A. Well, besides the obvious danger of drugs and firearms . . . you have
a lot of added problems . . . . The chemicals and the types of products
that individuals use to manufacture methamphetamine are very volatile,
combustible, ha[ve] caused explosion, fire, things of that nature.
We carry specific types of equipment to help make our entry safer
. . . and we train the [officers] to evacuate if those detectors . . . tell us
. . . the environment is superseding our personal protective equipment.
4
See United States v. Tucker, 313 F.3d 1259, 1265-66 (10th Cir. 2002)
(nighttime execution justified by public safety exigency); United States v. Keene, 915
F.2d 1164, 1168-69 (8th Cir. 1990) (destruction of evidence), cert. denied, 498 U.S.
1102 (1991); United States v. Spinelli, 848 F.2d 26, 29-30 (2d Cir. 1988) (public
safety); cf. United States v. Walsh, 299 F.3d 729, 733-34 (8th Cir.) (warrantless
search authorized by public safety exigency), cert. denied, 537 U.S. 1066 (2002).
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* * * * *
Q. [H]ave you ever been in a lab where somebody tried to destroy it?
A. Yes. We’ve been in a situation before where suspects could flee and
knock over parts of the lab. . . . Sometimes they destroy the lab in an
attempt to cause harm to us on the entry team and sometimes trying to
destroy evidence. . . .
Q. Okay. Is there any kind of gas danger?
A. Gas, there’s a phosphine gas danger. . . . [I]f they cook the product
too long, [methamphetamine labs] can emit phosphine gas, which is
highly deadly.
Greenwell also learned that ongoing drug street sales had been reported and that
numerous weapons were kept in the house, facts that have justified no-knock entries
in numerous cases.5 Finally, he learned that Doran’s son had recently been arrested
for possession of a sawed-off shotgun. Though this tip later turned out to be
inaccurate, reasonable suspicion that an armed and potentially dangerous resident will
be present has frequently justified no-knock entries.6
Taken together, as we must do in assessing the totality of the circumstances,
we conclude that this information, plus Williamson’s trash run, established a
5
See United States v. Washington, 340 F.3d 222, 227 (5th Cir.), cert. denied,
540 U.S. 1081 (2003); United States v. Gambrell, 178 F.3d 927, 928-29 (7th Cir.),
cert. denied, 528 U.S. 920 (1999); Mattison, 153 F.3d at 410-11; United States v.
Singer, 943 F.2d 758, 761-63 (7th Cir. 1991); State v. Baker, 103 S.W.3d 711, 717-19
(Mo. 2003) (en banc).
6
See United States v. Nguyen, 250 F.3d 643, 645 (8th Cir. 2001); United States
v. Gay, 240 F.3d 1222, 1228-29 (10th Cir.), cert. denied, 533 U.S. 939 (2001); United
States v. Weeks, 160 F.3d 1210, 1213-14 (8th Cir. 1998); United States v. Murphy,
69 F.3d 237, 243 (8th Cir. 1995), cert. denied, 516 U.S. 1153 (1996).
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reasonable suspicion of exigent circumstances. The burden to show a reasonable
suspicion of exigent circumstances “is not high.” Richards, 520 U.S. at 394. In this
case, the head of a team brought in to execute the warrant learned that the house to
be searched was suspected of harboring a clandestine methamphetamine lab, a stash
of drugs for on-going street sales, multiple weapons, and a potentially violent
resident. It was constitutionally reasonable for Sergeant Greenwell, the head of this
special team, to rely on what he learned from reading the warrant documents and from
interviewing the investigating officer, Detective Williamson. It was constitutionally
reasonable for Officer Grant to perform his assigned duty as ram officer as he had
been trained to carry out that task in cases of high-risk dynamic entries. “In making
the determination of whether the Fourth Amendment has been violated by a failure
to knock and announce, we must remember reasonableness is our polestar. ” United
States v. Mendoza, 281 F.3d 712, 717 (8th Cir.), cert. denied, 537 U.S. 1004 (2002).
Accordingly, the unlawful entry claim against Grant and the unlawful entry and
failure-to-train claims against Greenwell should not have been submitted to the jury.
Because the individual defendants did not violate Doran’s constitutional rights,
his failure-to-train and custom and practice claims against the Board of Police
Commissioners should not have been submitted to the jury. See Roach v. City of
Fredericktown, 882 F.2d 294, 297-98 (8th Cir. 1989). The judgment of the district
court is reversed, and the case is remanded with directions to dismiss the complaint.
HEANEY, Circuit Judge, with whom MORRIS SHEPPARD ARNOLD, BYE, and
SMITH, Circuit Judges, join, dissenting.
I respectfully dissent, primarily for the reasons so eloquently stated in the panel
majority opinion, authored by Judge Richard S. Arnold. See Doran v. Eckold, 362
F.3d 1047 (8th Cir. 2004). In that opinion, Judge Arnold fully considered appellants’
argument that the district court erred when it ruled as a matter of law that exigent
circumstances did not justify the no-knock entry into the Dorans’ home. Recognizing
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the significance that the Supreme Court has placed upon the Fourth Amendment right
to privacy in one’s home, he concluded that:
“the police should be required to make [a showing of exigency]
whenever the reasonableness of a no-knock entry is challenged.” The
burden of proving exigency “is not high.” Even so, there is some flesh
to the burden, and we do not think the police sufficiently demonstrated
that exigent circumstances existed to justify their “dynamic entry” into
the Doran home.
Id. at 1051 (alteration in original) (citations omitted) (quoting Richards v. Wisconsin,
520 U.S. 385 (1997)). I believed Judge Arnold was right then, and continue to
believe so now.
The en banc majority holds that Sergeant Eric Greenwell and Officer Ty Grant
acted reasonably in concluding that exigent circumstances justified their no-knock
entry into the Dorans’ home. According to the record,7 their entry was based on a
7
During oral argument, a question was raised as to whether we should rely
solely on the trial record or whether we should follow the district court and consider
the pre-trial record as well. While a strong case can be made for the former, Judge
Arnold, writing for the original panel, considered the entire record, and I agreed with
that decision. I continue to do so here. In his dissent to the panel opinion, Chief
Judge Loken stated that “the court erred in failing to specify the record on which its
ruling was based and on relying on inferences drawn from pretrial proceedings rather
than on the facts proved at trial.” Doran at 1055. Apparently, Chief Judge Loken has
now changed his mind. Compare ante at 5 (approving the district court’s
consideration of matters outside the trial record in determining if exigent
circumstances exist). If we were to limit ourselves to the trial record, a no-knock
search here would be clearly unreasonable: the only evidence before the jury was
that Greenwell and Grant were aware that the information about the possibility of a
methamphetamine lab and weapons in the Doran house came from an uncorroborated,
anonymous tipster with no record of reliability.
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pre-search briefing, a conversation with Detective Wesley Williamson, and their
independent review of the search warrant and affidavit. This investigation made clear
that the information that appellants now contend justified the no-knock entry was
based on an anonymous tip from a person with no previous record of reliability. The
tipster alleged that Doran was making methamphetamine, as well as dealing
methamphetamine and crack cocaine all day in face-to-face transactions from the
front door of his house. The tipster asserted that Doran’s son, who lived at the house,
had recently been arrested for possession of a sawed-off shotgun. Despite the
obvious ease with which officers could have confirmed whether the allegations in the
tip were true, there was an utter failure to do so. There is no evidence in the record
that any officer checked the Doran family’s criminal history to see whether they had
dealt controlled substances in the past or had a history of violent acts. There is no
evidence any officer checked the younger Doran’s arrest history to see if the
anonymous tip was accurate regarding the sawed-off shotgun. There is no evidence
that any officer verified whether the younger Doran, in his mid-twenties at the time
of the search, lived at the house. There is no evidence that officers observed any drug
traffic at the Doran residence. There is no evidence that any officer engaged in a
controlled buy at the residence. And, importantly, there is no evidence that any
officer observed anything that would point to the existence of a methamphetamine
lab. As Judge Arnold put it,
Here, the police supported their safety concern by pointing to the
following evidence: an anonymous, uncorroborated tip that the Dorans
were buying and making methamphetamine; the uncorroborated
statement that the younger Mr. Doran had been arrested for illegal
firearm possession; the uncorroborated statement that there were guns
in the house; and drug residue in a trash bag outside the home. Thus,
there was almost no certainty to most of the information the police
reportedly “knew.” Had the police done even some investigation or
surveillance they would have had a better understanding of whether the
Dorans posed a security risk justifying a no-knock entry. Instead, they
relied on very sketchy information, a reliance we find unreasonable, and
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outweighed by the privacy interest the Fourth Amendment is meant to
protect.
Doran, 362 F.3d at 1053.
Before the en banc court, appellants argued that the anonymous tip was
sufficiently corroborated, directing us to four trash bags seized from outside the
Dorans’ home.8 Inside these bags, according to Williamson, he found fifty sandwich
bags with the corners cut, which he asserted was consistent with narcotics packaging.
He also found methamphetamine residue on two plastic bags, a pill bottle, and three
other pieces of plastic. Lastly, he observed a single empty box of cold medication,
which contained pseudoephedrine.
As Judge Arnold noted in the panel decision, although officers may have
suspected (based on an anonymous tip) that Doran was involved in the manufacture
of methamphetamine, “the police did no corroborating investigation to show that the
Dorans were either selling or making methamphetamine. While [appellants] point to
the trash test, such evidence, at best, points to use, and certainly does not demonstrate
any of the potential concerns raised by an alleged meth lab, which might, if properly
developed, justify disregarding the knock-and-announce rule.” Doran, 362 F.3d at1052 n.3. Even if the contents of the trash bag may have suggested that Doran was
selling methamphetamine, there was no evidence whatsoever that Doran was
currently operating an active methamphetamine lab. Our cases have gone to great
lengths to detail the type of evidence linked to the existence of an active lab. See,
e.g., United States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005) (noting that the strong
8
Before the original panel, appellants primarily focused their argument on the
lack of proximate cause to support the damage awards. Neither party sought to
supplement the record with the pretrial material that the majority finds dispositive
until this stage in the litigation. See Doran, 362 F.3d at 1050 (“The warrant and
warrant affidavit were not offered into evidence and are not part of the record on
appeal.”). The trash bags and their contents have never been a part of this record.
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smell of ether is indicative of an active methamphetamine lab); United States v.
Dishman, 377 F.3d 809, 810 (8th Cir. 2004) (identifying cans of Coleman fuel and
anhydrous ammonia as precursor products to the manufacture of methamphetamine);
Kleinholz v. United States, 339 F.3d 674, 677 (8th Cir. 2003) (associating the intense
smell of ether with an active methamphetamine lab); United States v. Francis, 327
F.3d 729, 732 n.7 (8th Cir. 2003) (noting that items seized in clean up of
methamphetamine lab “included coffee filters stained with red phosphorous, juice jars
with coffee filters, a 1,000 ml Pyrex flask, a bottle of hydrochloric acid, another 1,000
ml flask half full with a liquid, a bottle of Vitablend, a triple-neck Pyrex beaker
containing actively-reacting liquids, a large plastic baggie that contained coffee filters
with red stains, miscellaneous tubing and hoses, a bottle of PH paper, empty Mason
jars, muriatic acid, laboratory funnels, multiple 500 ml Pyrex flasks, miscellaneous
funnels, Pyrex measuring material, acetone, and other chemical containers”); Walsh,
299 F.3d at 734 (“Here, the strong smell of ether and the equipment and residue found
in the carport suggested ongoing [methamphetamine] manufacture in the shed.”). In
this case, there was no suggestion that anything in the trash pointed to an active
methamphetamine lab in the Dorans’ home, that odors that typically emanate from
active labs were evident, or that officers observed any of the attributes of a
methamphetamine lab during their investigation.
In footnote 4 of its opinion, the majority cites a number of cases for the
proposition that the suspicion of “harboring a clandestine methamphetamine lab
. . . has justified no-knock entries.” Ante at 12. A careful review of these cases
makes clear that each of them involved the reasonable suspicion of an active
methamphetamine lab. For instance, in United States v. Tucker, 313 F.3d 1259 (10th
Cir. 2002), whether the officers properly entered without first knocking was not even
an issue on appeal; the case involved a night-time search. Even so, the night-time
search was permitted because officers had a reasonable suspicion, based on
information including direct observations of the defendant’s recent purchases of
methamphetamine precursors, that the defendant might be starting a
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methamphetamine cook. Id. at 1261, 1265-66. In United States v. Spinelli, 848 F.3d
26, 29-30 (2d Cir. 1988), the defendant had a prior conviction for methamphetamine
production, possessed a handgun during a prior arrest, and had a reputation for
violence. Furthermore, “agents had observed activity . . . during the previous few
days that indicated that the manufacture of methamphetamine was ongoing.” Id. at
29. The two cases cited from our circuit, United States v. Keene, 915 F.2d 1164 (8th
Cir. 1990), and United States v. Walsh, 299 F.3d 729 (8th Cir. 2002), are equally
inapplicable. Keene involved direct observations of an active methamphetamine lab
in the defendant’s basement. Keene, 915 F.3d at 1166-67. In Walsh, the information
gleaned immediately prior to the execution of the warrant, such as “the strong smell
of ether and the equipment and residue found in the carport area suggested ongoing
[methamphetamine] manufacture in the shed.” Walsh, 299 F.3d at 734. These cases
involved a reasonable suspicion of an active methamphetamine lab based on reliable
information. The same cannot be said for Doran’s case.
I also take issue with the majority’s view that Greenwell and Grant cannot be
liable for Doran’s severe injuries, because their decision to effect a “dynamic entry”
was based on information provided by Williamson. The majority cites United States
v. Hensley, 469 U.S. 221 (1985), in support of this proposition, yet ignores Hensley’s
caution that the officers’ reliance on information provided by others must be
reasonable, id. at 232-33. In Hensley, an officer from one jurisdiction performed an
investigatory stop on the defendant based on a “wanted flyer” that had been issued
by another jurisdiction. The question for review was “whether police officers could
stop and briefly detain a person who is the subject of a ‘wanted flyer’ while they
attempt to find out whether an arrest warrant has been issued.” Id. at 223. The Court
determined that the reasonableness of such police conduct depends on the extent of
the officers’ knowledge: “It is the objective reading of the flyer or bulletin that
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determines whether other police officers can defensibly act in reliance on it.” Id. at
232-33.9
Applying Hensley, it is obvious that Greenwell’s and Grant’s reliance on the
information provided to them by Williamson prior to the search could not possibly
insulate them from liability. The analogue for Hensley’s “wanted flyer” in this case
is the search warrant and affidavit, and a briefing by Williamson. From this
information, Greenwell and Grant knew the “facts” were largely uncorroborated and
unreliable allegations from an anonymous informant, and did not answer the question
of whether genuine exigencies permitted Greenwell and Grant to do away with the
knock-and-announce rule. Moreover, Greenwell and Grant knew they did not have
a magistrate’s permission to perform a no-knock search. No objective officer could
have believed that, based on this information, a no-knock search was permissible.
The Supreme Court has consistently emphasized the importance of an officer’s
duty to knock and announce his presence before forcing entry into a person’s home.
In Wilson v. Arkansas, 514 U.S. 927, 929 (1995), the Court held that the “common-
law ‘knock and announce’ principle forms a part of the reasonableness inquiry under
9
Baker v. McCollan, 443 U.S. 137 (1979), is also cited by the majority for the
proposition that Greenwell and Grant did not need to perform further investigation.
This case is wholly inapposite. Baker involved a person who was wrongly arrested
on an outstanding warrant due to mistaken identity, and the Court held that there was
no due process violation arising from officers’ arrest and three-day detention of the
plaintiff. There was no question, though, that the warrant itself was valid and
appeared to confer the power to arrest the wrongly detained individual, and that the
plaintiff matched the name and description of the sought-after fugitive (who was his
brother). In contrast, Greenwell and Grant should have known from reviewing the
warrant and supporting documents that there was not sufficient information to support
a no-knock entry without further corroborative investigation.
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the Fourth Amendment.”10 It noted that an unannounced entry may be permissible
if the government could show that there was a threat of violence or a risk that
evidence would likely be destroyed if officers complied with the knock-and-announce
rule. Id. at 935-36. Neither showing was made here.
The knock-and-announce principles were revisited in Richards v. Wisconsin,
520 U.S. 385 (1997), where the Court was faced with Wisconsin’s rule that officers
are never required to knock and announce in felony drug investigations.11 Justice
Stevens, writing for a unanimous court, recognized that felony drug investigations
frequently involve the threat of violence and the possibility that evidence may be
destroyed. Id. at 392 & n.2. Nonetheless, he concluded that blanket exceptions to the
10
It is because of Wilson that I find unpersuasive the majority’s citation to Dalia
v. United States, 441 U.S. 238 (1979), in support of its contention that the execution
of a warrant is best left to an officer’s judgment. When Dalia was decided, Wilson
had not explicitly included the knock-and-announce principle as part of the Fourth
Amendment reasonableness inquiry. Thus, Dalia stands for nothing more than the
rule that officers have discretion to conduct searches within the bounds of the
Constitution, which did not happen in this case.
11
The majority notes that the Richards Court upheld the no-knock search, even
though the officers had asked for and been denied a no-knock warrant. While it is not
clear why the magistrate initially denied the no-knock warrant application, it is clear
from Richards why the Court approved the no-knock execution: when officers were
executing the warrant, the suspected drug dealer slammed his motel room door in the
officers’ faces. See Richards, 520 U.S. at 396 (stating that “the petitioner’s apparent
recognition of the officers combined with the easily disposable nature of the drugs []
justified the officers’ ultimate decision to enter without first announcing their
presence and authority”). I have found no authority for the majority’s proposition
that an officer can conduct a no-knock search without a magistrate’s approval based
on information acquired prior to seeking the warrant. Despite the majority’s
insinuation to the contrary, Richards certainly does not stand for, or even support, this
theory.
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traditional knock-and-announce requirement could not be tolerated under the Fourth
Amendment:
First, the exception contains considerable overgeneralization. For
example, while drug investigation frequently does pose special risks to
officer safety and the preservation of evidence, not every drug
investigation will pose these risks to a substantial degree. For example,
a search could be conducted at a time when the only individuals present
in a residence have no connection with the drug activity and thus will be
unlikely to threaten officers or destroy evidence. Or the police could
know that the drugs being searched for were of a type or in a location
that made them impossible to destroy quickly. In those situations, the
asserted governmental interests in preserving evidence and maintaining
safety may not outweigh the individual privacy interests intruded upon
by a no-knock entry. Wisconsin’s blanket rule impermissibly insulates
these cases from judicial review.
A second difficulty with permitting a criminal-category exception to the
knock-and-announce requirement is that the reasons for creating an
exception in one category can, relatively easily, be applied to others.
Armed bank robbers, for example, are, by definition, likely to have
weapons, and the fruits of their crime may be destroyed without too
much difficulty. If a per se exception were allowed for each category of
criminal investigation that included a considerable–albeit
hypothetical–risk of danger to officers or destruction of evidence, the
knock-and-announce element of the Fourth Amendment’s
reasonableness requirement would be meaningless.
Thus, the fact that felony drug investigations may frequently present
circumstances warranting a no-knock entry cannot remove from the
neutral scrutiny of a reviewing court the reasonableness of the police
decision not to knock and announce in a particular case. Instead, in each
case, it is the duty of the court confronted with the question to determine
whether the facts and circumstances of the particular entry justified
dispensing with the knock-and-announce requirement.
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Id. at 393-94 (footnote omitted).12
The majority clearly ignores the admonition in Richards to determine whether
the facts and circumstances in this case justified excused compliance with the knock-
and-announce rule. Id. It rather takes the position that a “dynamic entry” was
permitted because of an anonymous tipster’s allegations that methamphetamine
manufacture and sales were occurring at the Doran residence, and that the Dorans’
son had recently been arrested for possessing a prohibited weapon. In doing so, the
majority has disregarded Richards, and, in effect, has created a “blanket exception”
to the knock-and-announce requirement. Judge Arnold put it well in his opinion for
the original panel:
Officer Grant testified that exigent circumstances existed because (a)
there was a “safety factor” involved in raiding drug houses, (b) there
were violent, armed people in drug houses, and (c) he assumed the
existence of lethal fumes from the chemicals used to produce
methamphetamine. While not directly stated, the implication behind his
testimony is that the police feared for their safety because the Doran
house was presumed to be a methamphetamine lab. This reasoning, if
allowed, would lead to a per se exception to the knock-and-announce
rule for methamphetamine labs. The Supreme Court has warned against
such a result. The Fourth Amendment preserves the right of privacy one
has in one’s home. To overcome that privacy exception, the police
12
Since Richards, the Supreme Court has reaffirmed the knock-and-announce
rule in United States v. Ramirez, 523 U.S 65 (1998), and United States v. Banks, 540
U.S. 31 (2003). Ramirez involved a no-knock search that was conducted, pursuant
to a no-knock search warrant, after police received information about an escapee from
a confidential, reliable informant. Ramirez, 523 U.S. at 68-69. Banks did not involve
a no-knock search at all; the issue was whether a fifteen-to-twenty-second pause
between an announcement and forced entry was permitted during a daytime warrant
execution in a drug investigation. Banks, 540 U.S. at 33-34. Neither case speaks to
an officer’s (as opposed to a magistrate’s) decision to conduct a nighttime, no-knock
execution of a warrant based on anonymous and largely uncorroborated information.
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interest should be specific to the individual and the place, not
generalized to a class of crime.
Doran, 362 F.3d at 1052 (citation and quotation omitted).
In addition to being inconsistent with the Supreme Court’s Fourth Amendment
jurisprudence, the case before us is indistinguishable from United States v. Lucht, 18
F.3d 541 (8th Cir. 1994). Lucht involved a large-scale drug conspiracy. One
defendant, Kress, appealed the denial of his motion to suppress evidence seized
during a search of his home. He argued that the executing officers acted improperly
by not first knocking and announcing their presence before forcing entry. Prior to the
search, Robert Frock, who was in charge of executing the search, was advised that the
search was for a large amount of methamphetamine, and that “there was a likelihood
weapons would be present.” Id. at 550. Frock was aware that Kress was a member
of a motorcycle gang, and suspected “that Kress had anti-police sentiments.” Id.Frock supposed that the search would be dangerous because his team, the Emergency
Response Unit (ERU), was being used. Id. Based on these facts, the government
argued its agents were confronted with an exigency that relieved them of the
requirement to knock and announce their presence before forcing their way into
Kress’s home. Our court disagreed:
We appreciate the fact that Frock assumed this was a high risk situation
because ERU was employed. However, a decision to force entry cannot
rest on an assumption. It requires consideration of the particular facts
and circumstances surrounding the execution of the warrant. Here, ERU
was not in a dangerous tactical situation. They did not hear or see
anything to indicate they were in danger or that evidence was being
destroyed. Frock knew that there was a likelihood that there were
weapons in the house, but he had no information indicating that Kress
was considered dangerous or violent or might be inclined to use the
weapons against them. See United States v. Marts, 986 F.2d 1216,
1217-18 (8th Cir. 1993) (reasonable belief firearms may have been
within residence, standing alone, clearly insufficient for exigent
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circumstances). Frock’s belief that Kress had a propensity for anti-
police sentiments was not based on any particularized knowledge. In
fact, Kress’s criminal record consisted of a nine-year-old misdemeanor
drug possession conviction and a thirteen-year-old charge for carrying
a concealed weapon for which prosecution was declined. Frock also
knew that the search was for a large amount of methamphetamine, but
he testified that this did not alter how he entered the house.
Id. at 551 (footnote omitted).
In Lucht, Kress was alleged to be dealing methamphetamine and carrying
weapons, yet this did not justify ignoring the knock-and-announce rule. Similarly,
Doran was anonymously alleged to be dealing drugs, having weapons, and his son
supposedly had recently been arrested for possessing a sawed off shotgun. Of course,
the en banc majority can overrule Lucht, but it does not so much as mention the case.
There is additional support for my view that the no-knock search was
unreasonable. First, when officers went to the magistrate to obtain the warrant, they
did not seek permission to perform a no-knock entry. I have found no authority for
the proposition that an officer, armed with all the knowledge that he believes supports
a no-knock entry prior to asking for a warrant, may nonetheless usurp the role of the
magistrate and decide on his own whether to knock and announce his presence. As
a panel of our court has recently noted, “when the officers know, before searching,
of circumstances that they believe justify a no-knock entry, it seems more consistent
with the Fourth Amendment to ask a neutral judge for approval before intruding upon
a citizen’s privacy.” United States v. Scroggins, 361 F.3d 1075, 1082 (8th Cir. 2004).
Indeed, “[t]he showing the police must make to obtain a no-knock warrant is the same
showing they must make to justify their own decision to dispense with the knock-and-
announce requirement. Only the timing differs.” Id. (emphasis added). After today,
not even the timing differs: Officers may seek a warrant but withhold a request for
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no-knock authorization, even when they later justify their no-knock intrusion entirely
on information they knew before they sought the warrant.
As the district court noted, nothing changed from the time the officers sought
the warrant and the time they executed the search. The police received the
anonymous tip in this case on July 20, 1998. Without explanation, Williamson
delayed his request for a warrant until August 6, 1998. Even after officers received
the warrant, they did not perform the search until August 11, 1998. Certainly, there
is questionable logic in appellants’ assertion that they were concerned about an active
methamphetamine lab and all of its attendant dangers when they took nearly a month
to search for the lab.
In conclusion, I find no reasonableness in the “dynamic entry” into the Dorans’
home in the dead of night. The executing officers knew that the purported exigency
was based on stale, unvarying, and largely uncorroborated information, which turned
out to be entirely untrue. Their suspicions were based upon inference built upon
inference, with no true factual basis. Moreover, there was no information specific to
the Doran home that permitted a no-knock entry. The officers’ view that cases
involving drugs and weapons should be excepted from the knock-and-announce
principle finds no support in the Constitution. Nonetheless, it has now been adopted
by the majority in this case. This stands at odds with the Supreme Court’s knock-and-
announce jurisprudence, and leaves an innocent man with no redress for clearly
unreasonable and unconstitutional governmental conduct. I cannot accept the fairness
of such a result. I would respect the jury’s verdict and affirm the district court.
______________________________
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