United States v. Andre Johnson , 267 F.3d 498 ( 2001 )

ALAN E. NORRIS, J., delivered the opinion of the court, in which QUIST, D.J., joined. BOYCE F. MARTIN, Jr., C.J. (pp. 501-03), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendant Andre Johnson appeals from a district court order denying a motion to suppress evidence seized during the execution of a no-knock search warrant. After the denial of his motion, defendant entered into a conditional plea agreement pursuant to which he pleaded guilty to an information charging him with simple possession of crack cocaine, 21 U.S.C. § 844(a), but reserved the right to appeal the district court’s decision regarding the motion to suppress. For the reasons that follow, we affirm the order of the district court denying the motion.

On April 1, 1999, Edward Hart, a Lexington, Kentucky police detective, completed an affidavit that served as the basis of an application for a search warrant. The affidavit indicated that an informant had reported crack cocaine was being sold from a house located at 163 Rand Avenue in Lexington. After vouching for the reliability of the informant, the affidavit went on to provide in part:

A no-knock search warrant is requested because the informant states that deals inside the house are usually done near the bathroom in case the police should come in the house. Aso, it has been the experience of Narcotics detectives that most of the dealers from Detroit have been armed when apprehended.

Within the past 48 hours the affiant made a controlled purchase of narcotics at 163 Rand Ave. through a confidential informant. This informant has made 9 prior controlled purchases and provided numerous pieces of information that has [sic] been independently corroborated.

Based upon this information, a Fayette County District Court judge found probable cause to issue a search warrant. The warrant itself states in part, “there is probable and reasonable cause for the issuance of this Search Warrant as set forth in the Affidavit attached hereto and made a part hereof as if fully set out herein.... ”

Although defendant now contends that the search warrant did not give the officers the authority to enter the premises without knocking, he did not raise that argument below. On the contrary, his motion to suppress states, “The search warrant was issued as a no-knock search warrant....” Motion to Suppress Evidence, September 8, 1999, at 1. Furthermore, during the suppression hearing held on September 20, 1999, defense counsel couched his argument to the district court in these terms: “[T]he government is wanting us to overlook a very important fact about this case, and that is that it is a no-knock search warrant.” Tr. at 4 (emphasis added). In general, this court has declined to review arguments not presented originally to the district court. See Taft Broad. Co. v. United States, 929 F.2d 240, 243 (6th Cir.1991) (reiterating “the principle that issues not litigated in the trial court are generally not appropriate for appellate consideration in the first instance”). In this case, even were we to entertain defendant’s forfeited argument, the result would not be affected because the warrant quite clearly incorporates the affidavit “as if fully set out herein,” which explicitly requests authority to enter the premises without knocking.

The fact that the officers acted on the authority of a no-knock search warrant does not end our inquiry, however. The Supreme Court has specifically held that whether officers announce themselves before a search constitutes a factor in the reasonableness inquiry required by the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Nonetheless, failure to announce does not necessarily render the search defective: “[Although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.” Id. at 936, 115 S.Ct. 1914. In this case, of course, the officers acted on the authority of a no-knock warrant. Therefore, we must determine whether the allegations contained in the warrant application were sufficient to support a conclusion that exigent circumstances justified the issuance of no-knock authority.

In United States v. Bates, 84 F.3d 790 (6th Cir.1996), this court cautioned that “officers must have more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing their presence.” Id. at 795. As already mentioned, the affidavit of Detective Hart stated that transactions were “usually done near the bathroom in case the police should come in the house,” a precaution clearly taken in order to facilitate disposal of evidence of drug dealing. In Bates, we recognized that exigent circumstances exist when officers have a justified belief that those within are “engaged in escape or the destruction of evidence.” Id. (citing United States v. Finch, 998 F.2d 349, 353 (6th Cir.1993)).

In this case, the district court summarized the government’s evidence of exigent circumstances in these terms:

[T]he confidential informant who was well-known to the police officers and who had given reliable information in the past, within 48 hours of the preparation of this affidavit and the subsequent issuance of the warrant, told the officers that he was buying drugs at the house from drug dealers from Detroit, and that in the affidavit, it states, “The informant states that deals inside the house are usually done near the bathroom in case the police should come in the house.”

... So it seems to me that the facts set out in the affidavit show an exigent circumstance which would result — which should result in the issuance of a no-knock warrant. So the government is going to prevail on this argument. I don’t see this as being a particularly close issue.

Suppression Hearing, Tr. at 48-49. We agree with this assessment. Had the affidavit merely contained generalized allegations of drug dealing within the residence, the government would not have demonstrated the kind of exigency required to justify a no-knock warrant. Likewise, boilerplate language concerning the possible destruction of evidence would not be sufficient. Where, as here, however, the affidavit in support of the warrant application includes recent, reliable information that drug transactions are occurring in the bathroom “in case the police should come in the house,” it is reasonable to infer that this precaution is taken to facilitate the destruction of evidence and thus a no-knock warrant is within the range of alternatives available to the issuing judge or magistrate.

Given our conclusion that the government carried its burden of demonstrating exigent circumstances, we need not reach its alternative arguments that defendant lacked standing to challenge the search or that the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies.

The judgment of the district court is affirmed.