United States v. Southerland, Vince , 466 F.3d 1083 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2006 Decided October 31, 2006
No. 05-3065
UNITED STATES OF AMERICA,
APPELLEE
v.
VINCE A. SOUTHERLAND,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00233-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, and Thomas J. Tourish, Jr., Assistant U.S.
Attorneys.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Vince A. Southerland’s
appeal from a criminal conviction for possessing illegal drugs
with the intent to distribute them originally raised the question
whether the police violated the Fourth Amendment when, in
executing a search warrant, they knocked on the door of a
residence where he was staying, announced their identity and
purpose, waited ten seconds and then broke the door open with
a battering ram. After briefing, in which Southerland argued
that the district court erred in not suppressing the drugs, cash
and a scale found on the premises, the Supreme Court decided
Hudson v. Michigan, 126 S. Ct. 2159 (2006). In light of
Hudson’s holding that the exclusionary rule did not apply to
Fourth Amendment knock-and-announce violations, we called
for supplemental briefing. Southerland has now understandably
abandoned his Fourth Amendment argument, but he insists that
the evidence should be suppressed under 18 U.S.C. § 3109, a
claim he raised in the district court.
Only officers of the Metropolitan Police Department
were involved in the search. Technically, § 3109 – which
governs the conduct of federal officers – therefore does not
apply. We do not make anything of this distinction because a
statute of the District of Columbia incorporates § 3109 as the
standard applicable to local law enforcement officers. D.C.
CODE § 23-524(a) (2001); see Artis v. United States, 802 A.2d
959, 968 n.8 (D.C. 2002). Both the local statute and § 3109 are
restricted to the execution of search warrants and both are silent
about remedies for violations. Section 3109 states as follows:
The officer may break open any outer or inner door or
window of a house, or any part of a house, or anything
therein, to execute a search warrant, if, after notice of his
authority and purpose, he is refused admittance or when
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necessary to liberate himself or a person aiding him in
the execution of the warrant.
The Supreme Court, having decided that the Fourth
Amendment incorporated the English common law knock-and-
announce requirement, see Wilson v. Arkansas, 514 U.S. 927,
934 (1995); Richards v. Wisconsin, 520 U.S. 385, 387 (1997),
held that Ҥ 3109 codifies the common law in this area, and the
common law in turn informs the Fourth Amendment,” United
States v. Ramirez, 523 U.S. 65, 73 (1998). It thus comes as no
surprise that each of the reasons Hudson gave for not applying
the exclusionary rule to knock-and-announce violations of the
Fourth Amendment applies equally to violations of § 3109.
Among those reasons are that the knock-and-announce
requirement does not protect an individual’s interest in shielding
“potential evidence from the government’s eyes,” Hudson, 126
S. Ct. at 2165; that “imposing th[e] massive remedy” of
suppression “for a knock-and-announce violation would
generate a constant flood of alleged failures to observe the rule,”
id. at 2165-66; that questions about whether the police waited
long enough before entering would be “difficult for the trial
court to determine and even more difficult for an appellate court
to review,” id. at 2166; that any deterrent value from
suppressing evidence in these cases would not be “worth a lot,”
id.; that civil damage actions would still provide some
deterrence, id. at 2166-68; and that “[a]nother development over
the past half-century that deters civil-rights violations is the
increasing professionalism of police forces, including a new
emphasis on internal police discipline,” id. at 2168.
Because the costs of suppressing evidence in knock-and-
announce cases are so high and the benefits so slim, and because
a federal officer violating § 3109 also violates the Fourth
Amendment, Hudson compels us to reject the exclusionary rule
as a remedy for violations of § 3109, unless Supreme Court
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precedent stands in the way.1 Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989),
holds that “[i]f a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of
overruling its own decisions.” Southerland claims that Miller v.
United States, 357 U.S. 301 (1958), and Sabbath v. United
States, 391 U.S. 585 (1968), are such “direct” precedents. We
think not.
Miller held that because the defendant “did not receive
notice before the officers broke the door to invade his home, the
arrest was unlawful, and the evidence seized should have been
suppressed.” 357 U.S. at 313-14. The policeman and the
federal narcotics officer who entered the home in Miller did so
in order to make a warrantless arrest. Id. at 305. Section 3109
therefore did not apply: then, as now, the statute governed only
entries for the purpose of executing search warrants. The Miller
Court stated that a “local” knock-and-announce rule this court
had fashioned bore such a “close relationship” to § 3109 that
“the validity of the entry to execute the arrest without a warrant
must be tested by criteria identical to those embodied in” the
statute. Id. at 306. Miller identified Accarino v. United States,
179 F.2d 456, 465 (D.C. Cir. 1949), as the source of the “local”
rule. Miller, 357 U.S. at 306. Accarino contains a lengthy
discussion of English common law, as well as several Supreme
1
Before Hudson this court had ruled that the remedy for a
violation of § 3109 was suppression of the evidence found in the
search. See, e.g., Woods v. United States, 240 F.2d 37, 39 (D.C. Cir.
1956). Because our conclusion – that a suppression remedy is no
longer available under § 3109 – conflicts with this precedent, this
opinion has been circulated to and approved by the full court. See
Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981).
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Court Fourth Amendment cases, but does not mention § 3109.
If, in ordering the suppression of evidence, Accarino rested on
the Fourth Amendment, as this court later said it did, see, e.g.,
McKnight v. United States, 183 F.2d 977, 978 (D.C. Cir. 1950),
it is of course directly contrary to Hudson. In any event, the
Supreme Court’s Miller decision, which applied Accarino’s
“local” rule, cannot be considered a “direct” precedent that
violations of § 3109 require the suppression of evidence. Nor
can the other case Southerland cites. Like Miller, Sabbath
invoked § 3109 by analogy to hold that an entry for the purpose
of making an arrest was illegal. It too is not a direct holding
under § 3109.
We also believe that if we were to view Miller and Sabbath
as directly mandating a suppression remedy for violations of
§ 3109, those decisions would conflict with Hudson. Before
Hudson the Supreme Court began treating § 3109 and the
knock-and-announce rule of the Fourth Amendment as identical,
see Ramirez, 523 U.S. at 73, which is why “the result should be
the same under the Fourth Amendment and § 3109,” United
States v. Banks, 540 U.S. 31, 42 (2003). Southerland points out
that in Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2679 (2006),
the Court said that although “Miller is not clear about its
authority for requiring suppression,” the authority seems to rest
on the supervisory power. This, according to Southerland,
distinguishes Hudson because the supervisory power of the
federal courts serves the dual purposes of “deterring illegality
and protecting judicial integrity,” United States v. Payner, 447
U.S. 727, 736 n.8 (1980), whereas the primary purpose of the
Fourth Amendment exclusionary rule is “to deter future
unlawful police conduct,” United States v. Calandra, 414 U.S.
338, 347 (1974). The argument is odd, involving as it does the
proposition that it is more important to ensure compliance with
a federal statute governing entries into the home than with a
constitutional provision that does exactly the same. More than
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that, the Supreme Court has rejected Southerland’s premise. In
the same footnote from Payner that Southerland quotes, the
Court stated that “the Fourth Amendment exclusionary rule
serves precisely the same [twofold] purposes” as the supervisory
power. Payner, 447 U.S. at 736 n.8; accord United States v.
Mount, 757 F.2d 1315, 1321 (D.C. Cir. 1985) (Bork, J.,
concurring).
The short of the matter is that § 3109 and the Fourth
Amendment have merged both in the standards governing
entries into the home and in the remedy for violations of those
standards. There is now one uniform knock-and-announce rule.
We are thus faced with a conflict between Supreme Court
decisions, a circumstance outside the Rodriguez decision
requiring lower courts to follow a Supreme Court precedent
directly on point even if later decisions have undercut its
rationale. See Mozee v. Am. Commercial Marine Serv. Co., 963
F.2d 929, 935 (7th Cir. 1992). As to which line should be
followed, we think it plain that Hudson, not Miller and Sabbath,
now must control. Not only is Hudson the Court’s most recent
pronouncement about whether evidence should be excluded as
a remedy for knock-and-announce violations, but it is also the
Supreme Court’s only thorough analysis of the issue. From all
that appears, Miller and Sabbath merely assumed that
suppression followed a violation. See also Wong Sun v. United
States, 371 U.S. 471, 482-83 (1963). We therefore hold that
even if the entry here violated § 3109, a question we do not
decide, Southerland was not entitled to suppression of the
evidence seized during the search.
Affirmed.