United States v. Phillip Moore , 956 F.2d 843 ( 1992 )

BEAM, Circuit Judge,

dissenting.

I respectfully dissent. The majority opinion, in my view, misapplies our law on the admissibility of evidence in federal prosecutions and makes a faulty analysis of Nebraska law. In formulating this dissent, I restate the facts in considerable detail in an attempt to present an orderly approach to the issues raised by the parties.

I.

On October 24,1989, Officer Mike Terrell of the Omaha Police Division’s Narcotics Unit learned, through a confidential informant and independent investigation, that controlled substances were being sold by Phillip M. Moore from Moore’s residence at 2412 Charles Street, Omaha, Nebraska. The informant told Terrell that he had been at Moore’s home and personally witnessed Moore in possession of marijuana and other suspected controlled substances packaged for sale. Later that day, Terrell prepared an affidavit and application for a no-knock search warrant of Moore’s home. In his affidavit, Terrell alleged that “officers know from past experience that the evidence being sought could easily be destroyed by flushing it down the toilet or sink if officers were required to announce their presence and purpose.” Addendum to Brief of Appellant at 2. Terrell did not otherwise allege any particular reason to fear the destruction of evidence by Moore. Id. A Nebraska county judge issued the requested no-knock search warrant pursuant to Nebraska law. See Neb.Rev.Stat. § 29-411 (1989).¹

At 7:15 a.m. the next day, Terrell and other officers of the Omaha narcotics unit knocked down Moore’s door with a battering ram, entered Moore’s home and then announced their presence. The officers found Moore in a bedroom and placed him in handcuffs. During their search, officers found several sets of Ritalin and Talwin, both controlled substances, packaged for sale, a handgun, and drug paraphernalia.

Moore was charged under Nebraska law with possession with intent to deliver controlled substances. After a preliminary hearing in a Nebraska county court on November 29, 1989, Moore was ordered to stand trial. An information was filed on November 30, 1989, and Moore’s case was scheduled for trial before a Nebraska judge.

At some point during Moore’s state prosecution, it was discovered that Moore’s home is located within one thousand feet of an elementary school. Federal law punishes persons selling a controlled substance within one thousand feet of a school with twice the maximum punishment otherwise allowed under federal law, and Moore thereafter was prosecuted under federal law instead of state law. See 21 U.S.C. §§ 841(a)(1), 845a. Moore was indicted by a federal grand jury on December 14, 1989, for possessing with the intent to distribute controlled substances within one thousand feet of an elementary school. Moore was arraigned before a United States Magistrate Judge on February 8, 1990, had counsel appointed, and entered a plea of not guilty. The state-court case against Moore was dismissed on February 9, 1990.

Moore filed a motion to suppress all evidence seized at his home by the state officers, which motion was granted by the district court. The court analyzed the validity of the seizure under federal law rather than state law because the evidence was to be admitted in a federal forum. See 18 U.S.C. § 3109 (1988).² The court then determined that the no-knock search warrant was defective because the supporting affidavit failed to set forth “particular facts ... demonstrating to the magistrate why the evidence in issue is in danger of being destroyed.” United States v. Moore, No. CR. 89-0-156, Memorandum at 7 (D.Neb. July 6, 1990). The court also determined that the evidence could not be admitted under the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The court reasoned that the state officers could not have had an objectively reasonable belief in the sufficiency of the warrant because it was based on an affidavit “completely lacking in particularized facts which would provide reasonable or probable cause to waive the knock and announce requirement of [section] 3109.” Moore, Memorandum at 7. The government appeals this decision, arguing that the evidence seized at Moore’s home is admissible under the good faith exception to the exclusionary rule, and that the state officers’ good faith should be determined under Nebraska law rather than federal law.

II.

The government’s challenge to the district court’s order requires resolution of two issues: whether the district court was correct in applying federal law rather than state law to determine admissibility of the evidence in this case, and whether suppressing the evidence was correct under the applicable law. I conclude that federal law governs admissibility of evidence in this case, and that the district court correctly suppressed the evidence.

A. Applicable Law

The Supreme Court established, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), that “[t]he question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.” Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (citing Elkins, 364 U.S. at 206, 80 S.Ct. at 1437). In determining whether state officers effected an unreasonable seizure, “a federal court must make an independent inquiry.... The test is one of federal law.” Elkins, 364 U.S. at 223-24, 80 S.Ct. at 1447-48. See also United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990) (“Because the execution of the warrant was carried out by state authorities in this case, we note that a state search must be reasonable under the fourth amendment in order for evidence to be admissible in a federal prosecution.”), cert. denied, — U.S. -, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991). The purpose of imposing a federal standard of admissibility in federal proceedings is to prevent admission of evidence in a federal criminal trial that was seized by state agents in violation of the defendant’s federal constitutional rights. Elkins, 364 U.S. at 222, 80 S.Ct. at 1446.

The government argues that Elkins should not apply in Moore’s case because the state officers did not intend to circumvent federal law by seizing evidence that federal officers could not constitutionally seize. The government contends that the search warrant was sought by state officers in pursuit of a state prosecution, and that federal involvement was neither planned nor anticipated at the time the evidence was seized, but occurred only after discovering Moore’s home was located within one thousand feet of a school. Therefore, the government argues, the risk that evidence seized by state officers in violation of the constitution will be admitted in a federal prosecution is not present in this case and that Nebraska law rather than federal law should govern the validity of the seizure.

The government’s argument that state law should govern admissibility in this case is apparently based on the presumption that the seizure would be valid if analyzed under Nebraska law but invalid, or at least arguably so, under federal law. The government asserts that the state officers’ good faith should be analyzed under Nebraska statute section 29-411 and State v. Meyer, 209 Neb. 757, 311 N.W.2d 520 (1981), instead of United States Code section 3109. According to the government, the seizure would be valid under Nebraska law because it is “well-settled” under Meyer that section 29-411, “providing for entry for search pursuant to a warrant which contains a ‘no-knock’ provision does not offend the Fourth Amendment prohibition against unreasonable search and seizure.” Brief of Appellant at 14, 16. Therefore, the government argues, the state officers “acted in accordance with well-settled Nebraska law, thus making [their] reliance on the no-knock authorization objectively reasonable.” Id. at 16.

The Supreme Court’s precedent cannot be distinguished on the basis advanced by the government. Contrary to the government’s apparent presumption, state governments and the federal government do not have different standards of reasonableness for searches and seizures under the fourth amendment. The Court in Elkins determined that although evidence illegally seized by state officers was once admitted in federal prosecutions based on the theory that the fourth amendment did not apply to state officials, “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Elkins, 364 U.S. at 213, 80 S.Ct. at 1442. See also Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963) (“the standard of reasonableness is the same under the Fourth and Fourteenth Amendments”); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961) (“[the fourth amendment] is enforceable against [the states] by the same sanction of exclusion as is used against the Federal Government”). Therefore, a single fourth amendment standard governs the validity of seizures by state and federal officers.³

Moreover, I am not convinced that Nebraska law applies a different or lesser standard to evaluate searches and seizures under section 29-411 than that applicable under section 3109. The government relies on Meyer to contend that section 29-411 does not offend the fourth amendment prohibition against unreasonable searches and seizures. I do not disagree with such a conclusion. However, Meyer did not hold that all no-knock searches under section 29-411 are reasonable under the fourth amendment or that an officer’s reliance on a warrant issued under that section is necessarily in good faith. Instead, Meyer, relying on federal cases, determined that the no-knock search at issue was consistent with the fourth amendment. The affidavit supporting the no-knock search in Meyer alleged that drugs were located very close to the toilet area, and that the drugs may be destroyed if an announcement were required. Meyer, 311 N.W.2d at 523-24 (citing Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Ker, 374 U.S. at 40, 83 S.Ct. at 1633; Mapp, 367 U.S. at 643, 81 S.Ct. at 1684). Thus, Meyer did not validate all searches under section 29-411, but merely upheld the search at issue based on a particularized affidavit that satisfied the fourth amendment.

Section 29-411 would not, in my view, allow a no-knock search where the federal statute would not. Although section 29-411 defines in the body of the statute when a state no-knock search is permitted and United States Code section 3109 does not contain a similar definition, it is clear that such searches are permitted under both statutes. Both enactments allow no-knock searches upon a showing of “exigent circumstances.” Ker, 374 U.S. at 47, 83 S.Ct. at 1636 (Brennan, J., concurring in part and dissenting in part); United States v. Tracy, 835 F.2d 1267, 1269-70 (8th Cir.), cert. denied, 486 U.S. 1014, 108 S.Ct. 1750, 100 L.Ed.2d 212 (1988); State v. Pierson, 238 Neb. 872, 876, 472 N.W.2d 898 (1991) (“Under [the Nebraska and the federal] statutes, two kinds of search warrants may be executed: ‘knock-and-announce’ and ‘no-knoek.’ In order to obtain a warrant which may be served without knocking, the magistrate must be provided with information to support the need for entry without announcement.”). Thus, the same standard applies to obtain and/or execute a no-knock warrant under both statutes.

B. Suppression of Evidence

Having resolved that Nebraska law does not impose a lower threshold of reasonableness for searches and seizures, it must now be decided whether the seizure in this case was proper. The Supreme Court in Leon held that “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant” should not generally be excluded. Leon, 468 U.S. at 922, 104 S.Ct. at 3420. The exclusionary rule still applies, however, if (1) the magistrate or judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for affiant’s reckless disregard for the truth; (2) the magistrate wholly abandoned his or her judicial role and became a rubber stamp for the police; (3) the affidavit is so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or (4) the warrant itself is so facially deficient, in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably believe it to be valid. United States v. Sager, 743 F.2d 1261, 1262-63 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985); see Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420-21. As earlier stated, the district court in this case found Officer Terrell’s affidavit so lacking in indicia of need for a no-knock warrant that the officers executing the warrant at Moore’s home could not have held an objective good faith belief in the validity of the warrant. I agree.

Because the officers in this case were acting pursuant to a no-knock search warrant, and, in fact, did not knock and announce their presence, the question of whether the officers held a reasonable belief in the need to proceed unannounced must be analyzed in light of the prerequisites for obtaining such a warrant. As I have stated, no-knock warrants under both Nebraska statute section 29-411 and United States Code section 3109 are available only on a showing of exigent circumstances. See Tracy, 835 F.2d at 1270; Pierson, 238 Neb. at 875-76, 472 N.W.2d 898. Exigent circumstances include reasonable knowledge by the officers that the suspect knows of the officer’s intentions to search his home or that the suspect will destroy evidence during a delay in the officer’s entry. Tracy, 835 F.2d at 1270. Thus, the executing officers in this case must have held an objective good faith belief in the existence of exigent circumstances, based on the information provided in the supporting affidavit. The question of whether exigent circumstances exist is a mixed question of law and fact; we must accept the district court’s findings on the facts surrounding the execution of the warrant unless they are clearly erroneous, but the determination of whether those facts satisfy the legal test of exigency is subject to de novo review. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989).

Officer Terrell’s affidavit did not present sufficient indicia of exigent circumstances. The affidavit consisted only of a general allegation that did not relate to the particular premises to be searched, the person to be searched, or the particular circumstances surrounding the search. The affidavit alleged only that “officers know from past experience that the evidence being sought could easily be destroyed by flushing it down the toilet or sink if officers were required to announce their presence.” Addendum to Brief of Appellant at 2. This allegation, standing alone, presents virtually no particularized facts respecting the need to enter Moore’s home without announcement. I, therefore, agree with the district court’s conclusion that “[t]o hold otherwise would mean that any time drugs are involved, the executing officers would not have to knock and announce their purpose.” Moore, Memorandum at 7. See also Stewart, 867 F.2d at 585 (“Followed to its logical conclusion, the Government’s argument would obviate the necessity for complying with the statute in any search of the residence of an alleged drug dealer.”).

Although I agree with the district court that the officers did not hold an objectively reasonable belief in the need for a no-knock entry, I believe that this is a close case and I do not intend to frustrate the legitimate use by law enforcement officers of such search warrants whenever they are reasonably necessary. In evaluating an officer’s good faith reliance on a search warrant, we need not find particularized facts that conclusively establish probable cause or exigent circumstances, but only that the affidavit is not so lacking in necessary information, based on particularized facts, that a belief in the validity of the warrant is unreasonable. Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420-21; Sager, 743 F.2d at 1262-63. In this case, the allegation that Moore was in possession of drugs came from a reliable informant and the drugs in Moore’s possession were packaged for sale and thus may have been small enough to flush down a toilet or rinse down a sink. However, because the affidavit in this case did not present particularized facts to provide a reasonable belief in the need to enter Moore’s home without knocking, I would affirm the district court.

III.

I conclude that the search and seizure in this case was unreasonable. The evidence seized in Moore’s home is not admissible under the good faith exception to the exclusionary rule. The order of the district court granting Moore’s motion to suppress should be affirmed.

1 . Section 29-411 provides:

29-411. Warrants and arrests; powers of officer; direction for executing search warrant; damages. In executing a warrant for the arrest of a person charged with an offense, or a search warrant, or when authorized to make an arrest for a felony without a warrant, the officer may break open any outer or inner door or window of a dwelling house or other building, if, after notice of his office and purpose, he is refused admittance; or without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice, but the political subdivision from which such officer is elected or appointed shall be liable for all damages to the property in gaining admission. The judge or magistrate may so direct only upon proof under oath, to his satisfaction that the property sought may be easily or quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice be given; but this section is not intended to authorize any officer executing a search warrant to enter any house or building not described in the warrant.

Neb.Rev.Stat. § 29-411 (1989).

2 . Section 3109 provides:

§ 3109. Breaking doors or windows for entry or exit

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

18 U.S.C. § 3109 (1988).

3 . The government’s attempt to distinguish Elkins is also contrary to Leon, 468 U.S. at 901-02, 926, 104 S.Ct. at 3409-10, 3422; Preston, 376 U.S. at 365-66, 84 S.Ct. at 882-83; Keene, 915 F.2d at 1166-67; and United States v. One Parcel of Real Property, 873 F.2d 7, 8 (1st Cir.), cert. denied sub nom. Latraverse v. United States, 493 U.S. 891, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989). In each of these cases, evidence seized by state officers without any involvement of federal officers was sought to be admitted in a federal prosecution. However, these cases did not rely on state law to evaluate the reasonableness of the search and seizure at issue.