United States v. Sutton, Tanya

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TANYA SUTTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-CR-47-S—John C. Shabaz, Judge.
____________
ARGUED MAY 12, 2003—DECIDED JULY 14, 2003
____________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. As part of an investigation into a
counterfeit check scheme, police officers from Madison,
Wisconsin, prepared to search Tanya Sutton’s home for evi-
dence relating to that scheme, including a computer alleg-
edly used to produce false paychecks. At a briefing session
prior to the execution of a warrant authorizing the search
of Sutton’s home, the police discussed several potential
threats to officer safety—including the fact that pit bull
dogs (known for their hostility to strangers) had been seen
on the property (although it was unclear whether the dogs
belonged to Sutton or a neighbor) and the fact that some in-
dividuals seen entering Sutton’s home had a history of drug
and weapons offenses, raising the possibility that weapons
may be present. In addition, the officers discussed the con-
2 No. 02-4086
figuration of the home (a two-unit, mirror-image town
home), which provided little to no opportunity for cover for
the officers approaching the front door should something go
wrong during the execution of the warrant. Given these
concerns, the officers decided to have their firearms at the
ready when they executed the warrant.
According to Madison Police Officer Deanna Reilly, the
point person for the entry team, the officers prepared to en-
ter Sutton’s home on the evening of March 27, 2001. They
gathered at the southern edge of Sutton’s garage, and
Officers Reilly and Veatch approached the front door. Reilly
noticed that the screen door was almost ripped out—con-
sistent with the presence of dogs. She also noted that the
inner door was slightly ajar. As Officer Veatch held open
the screen door, Officer Reilly forcefully knocked on the in-
ner door with her left hand, with her firearm in her right,
and the force of the knock further opened the already ajar
door.
Given her now-exposed position in the doorway (a
position within the triangular area radiating from the front
door known as the “fatal funnel” because of the higher risk
of officers being shot when standing there), Reilly testified
that she made the instantaneous decision to then enter the
home. At the same time that she crossed the threshold, she
loudly announced, “Police! Search warrant!” After entering
the home, the police found Sutton alone with her two young
children; no weapons or pit bulls were found during the
subsequent search.
Sutton was ultimately charged with conspiracy to commit
bank fraud and with bank fraud. Before trial, she sought to
suppress the evidence obtained as a result of the search of
her home, arguing that the search had violated the Fourth
Amendment because the police had unreasonably failed to
comply fully with the requirement identified by the Su-
preme Court in Wilson v. Arkansas that police executing a
No. 02-4086 3
search warrant must first knock and identify themselves
and their purpose before entering the place to be searched.
514 U.S. 927, 929 (1995). After presenting her case before
a magistrate judge at a suppression hearing, the magistrate
recommended, and the district court agreed, that Sutton’s
motion to suppress be denied. The district court found that
the Madison officers’ failure to comply fully with the knock-
and-announce requirement was reasonable based on the
circumstances and the information the officers had at the
time.
After her suppression motion was denied, Sutton entered
a conditional plea of guilty under Federal Rule of Criminal
Procedure 11(a)(2) to one count of conspiracy and one count
of bank fraud. She was sentenced to two concurrent terms
of twenty-one months imprisonment. Sutton now appeals
the denial of her suppression motion.
ANALYSIS
The Fourth Amendment protects individuals from “unrea-
sonable” searches of their persons, homes, and possessions.
U.S. CONST. amend. IV. The Supreme Court has held that,
as part of that guarantee, “the Fourth Amendment incorpo-
rates the commonlaw requirement that police officers en-
tering a dwelling must knock on the door and announce
their identity and purpose before attempting forcible
entry.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)
(citing Wilson, 514 U.S. at 929). Whether the police comply
with this knock-and-announce rule factors into the determi-
nation of whether or not a search is reasonable under the
Fourth Amendment. Id. at 934.
We first address the remedy that Sutton pursues in this
appeal. Even assuming that the Madison police officers
failed to comply fully with the knock-and-announce rule,
the remedial path Sutton seeks is foreclosed by this Cir-
4 No. 02-4086
cuit’s precedent: after our decision in United States v.
Langford, suppression of evidence obtained as a result of a
search subsequent to a knock-and-announce violation is not
available as a remedy. 314 F.3d 892, 894 (7th Cir. 2002),
reh’g denied, reh’g en banc denied, 2003 U.S. App. LEXIS
6064 (7th Cir. Mar. 27, 2003). In Langford, we held that
“violation of the rule does not authorize exclusion of evi-
dence seized pursuant to the ensuing search” because, un-
der the inevitable-discovery doctrine, “it is hard to under-
stand how the discovery of evidence inside a house could be
anything but ‘inevitable’ once the police arrive with a war-
rant.” Id. (quotations omitted); see also United States v.
Jones, 149 F.3d 715, 716-17 (7th Cir. 1998) (noting that the
inevitable-discovery doctrine would likely apply because “an
occupant would hardly be allowed to contend that, had the
officers announced their presence and waited longer to en-
ter, he would have had time to destroy the evidence.”1
1
The Supreme Court in Wilson adverted to the possible applica-
tion of the inevitable-discovery doctrine in the knock-and-an-
nounce context, but rested its decision on other grounds:
Respondent and its amici also ask us to affirm the denial of
petitioner’s suppression motion on an alternative ground:
that exclusion is not a constitutionally compelled remedy
where the unreasonableness of a search stems from the
failure of announcement. Analogizing to the ‘independent
source’ doctrine . . . and the ‘inevitable discovery’ rule . . .
respondent and its amici argue that any evidence seized after
an unreasonable, unannounced entry is causally disconnected
from the constitutional violation and that exclusion goes
beyond the goal of precluding any benefit to the government
flowing from the constitutional violation. Because this
remedial issue was not addressed by the court below and is
not within the narrow question on which we granted certio-
rari, we decline to address these arguments.
Wilson, 514 U.S. at 937 n.4.
No. 02-4086 5
While we recognize that some courts have refused to ap-
ply the inevitable-discovery doctrine to knock-and-announce
violations, apparently out of fear that such a path may ren-
der the knock-and-announce rule meaningless, see, e.g.,
State v. Lee, 821 A.2d 922, 946 (Md. 2003), we do not agree
that precluding suppression as a remedy renders the rule a
mere formality.
As we noted in Langford, alternative remedies are avail-
able for those who are injured by an unreasonable no-knock
search, through claims under 42 U.S.C. § 1983 and the
Bivens doctrine. Langford, 314 F.3d at 894-95. Those reme-
dies will continue to deter police from violating the knock-
and-announce rule, without unfairly disadvantaging the
government. Cf. Nix v. Williams, 467 U.S. 431, 446 (1984)
(“Significant disincentives to obtaining evidence illeg-
ally—including the possibility of departmental discipline
and civil liability—also lessen the likelihood that the ulti-
mate or inevitable discovery exception will promote police
misconduct.” (citing Bivens v. Six Unknown Federal Narcot-
ics Agents, 403 U.S. 388, 397 (1971))).
Understandably, Sutton makes several attempts to dis-
tinguish Langford. First, Sutton urges us to confine the
holding of Langford to its facts, declaring that suppression
is unavailable as a remedy only in gun- or drug-related
cases, situations in which the potential danger to police is
clear. In Sutton’s case, she was under investigation for a
nonviolent, white-collar crime, so suppression should be an
available remedy. Such distinctions may have some bearing
on whether or not a knock and an announcement are
required to render a search reasonable, cf. Richards, 520
U.S. at 394 (noting that the “actual circumstances—peti-
tioner’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”), but it is difficult to see how
the underlying crime should affect the remedy available for
a Fourth Amendment violation.
6 No. 02-4086
Relatedly, Sutton contends that Langford is contrary to
that part of the decision in Richards where the Supreme
Court rejected a blanket rule dispensing with the knock-
and-announce requirement in all drug cases (a generaliza-
tion supposedly justified by the higher-than-average risks
of violence or destruction of evidence associated with drug
searches). Id. at 391. Richards, she suggests, disapproves of
anything but a case-by-case approach to analyzing knock-
and-announce violations. See also Lee, 821 A.2d at 941 (“To
apply the inevitable discovery rule . . . whenever there is
a valid warrant, to render admissible, any evidence
seized in execution of that warrant in violation of the
knock and announce rule is, in effect, to create a blanket
exception to that rule for all cases involving valid search
warrants . . . precisely what Richards prohibits.”).
We read Richards, however, as emphasizing that the rea-
sonableness of any given search will depend on a multiplic-
ity of factors, precluding any generalizations as to whether
a certain type or class of search would pass muster under
the Fourth Amendment. But while a reasonableness deter-
mination necessarily depends on a number of factors, fash-
ioning and applying an appropriate remedy once a search is
deemed unreasonable presents a different issue. In that
latter situation, the question is identifying those future
steps that should be taken to best rectify an injury suf-
fered—with little concern as to how that injury was caused.
Cf. United States v. Espinoza, 256 F.3d 718, 724 (7th Cir.
2001) (“[W]hether the exclusionary rule is appropriately
imposed in a particular case is an issue separate from the
question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police
misconduct.” (quotation omitted)).
Sutton also argues that our decision in Langford is con-
trary to Miller v. United States, where the Supreme Court
endorsed the remedy of suppression for evidence obtained
as a result of an illegal police entry into a home. 357 U.S.
No. 02-4086 7
301, 313-14 (1958) (“Because the petitioner did not receive
that notice before the officers broke the door to invade his
home, the arrest was unlawful, and the evidence seized
should have been suppressed.”). But simply because sup-
pression is available as a remedy does not mean that it is
mandatory for any violation of the Fourth Amendment’s
knock-and-announce requirement. See Espinoza, 256 F.3d
at 724 (“We know, however, that the exclusionary rule is
not a constitutionally compelled remedy for violations of the
Fourth Amendment.”).2
Even if suppression were a remedy available to Sutton,
we do not believe that it would be warranted on the facts
presented here. In enunciating the knock-and-announce
rule, the Supreme Court acknowledged that the law
enforcement interests in ensuring officer safety and in
preventing the destruction of evidence may weigh in favor
of unannounced entry. Wilson, 514 U.S. at 936. Toward that
end, police may make an unannounced, no-knock entry if
they have “a reasonable suspicion that knocking and
announcing their presence, under the particular circum-
stances, would be dangerous or futile.” Richards, 520 U.S.
at 394.
In this case, the magistrate judge found that while the
police had not fully complied with the rule when executing
the warrant for Sutton’s home, less than full compliance
was nonetheless reasonable under the circumstances, as the
2
Sutton also notes that the United States Supreme Court has
granted certiorari in United States v. Banks, 282 F.3d 699 (9th
Cir. 2002), cert. granted, 123 S. Ct. 1252 (Feb. 24, 2003), a case
which involves the question of how long officers are required to
wait after knocking and announcing their presence before forcibly
entering the premises to be searched. But until the Supreme
Court issues a decision in that case (and that decision addresses
the question of the appropriate remedy for a knock-and-announce
violation), Langford remains controlling in this circuit.
8 No. 02-4086
officers had a “reasonable and articulable suspicion” that
compliance might place them in danger. The magistrates’s
report specifically noted that given the information that pit
bulls had been seen on the property (along with finding the
ripped out screen door as the officers approached the
house), that individuals with drug or weapons convictions
had been seen entering the home, and that the configura-
tion of the house provided no cover for the executing
officers, the decision by Reilly to enter the home while
simultaneously announcing her presence without first
waiting to be admitted was reasonable under the circum-
stances. We additionally note that, according to Officer
Reilly’s testimony at the suppression hearing, the police
officers had begun to comply with the rule, by both knock-
ing on the partially open front door and announcing their
presence even as they entered the home. Reilly and her
team, however, did not wait until an occupant of the house
admitted them (or refused to do so). The fact that the
officers apparently set out to comply with the rule, but
changed their plans once the circumstances of the search
increased the risk to their safety, weighs in favor of a
finding of reasonableness.
CONCLUSION
After this Court’s decision in Langford, suppression of
evidence seized as a result of an unannounced, no-knock
search is unavailable as a remedy. Even were such a
remedy available, it would not be warranted in this case, as
the officers’ failure to comply fully with the knock-and-
announce rule was reasonable under the circumstances.
The decision of the district court denying Sutton’s motion to
suppress the subsequently seized evidence is AFFIRMED.
No. 02-4086 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-14-03