United States v. Ankeny

REINHARDT, Circuit Judge,

dissenting:

I. Introduction

I agree with the majority that the law enforcement officers’ entry into David Kelly Ankeny’s home without complying with the constitutional “knock and announce” requirements does not necessitate suppression of the evidence. See Maj. Op. at 835-36. After Hudson v. Michigan, — U.S. -, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), such a knock-and-announce violation no longer justifies the remedy of suppression. Id. at 2168. Because I conclude, however, that the intensive and violent search that ensued was unreasonable due to the extreme use of excessive force and that the evidence seized during the unlawful search should be suppressed, I am compelled to dissent.

The majority avoids determining whether the military-style invasion of Ankeny’s home, with the concomitant destruction of physical property and infliction of serious personal injuries, violated Ankeny’s Fourth Amendment rights. It does so by holding that regardless of how unlawful the law enforcement officers’ actions may have been, “suppression is not appropriate,” because “[t]he alleged Fourth Amendment violation and the discovery of the evidence lack the causal nexus that is required to invoke the exclusionary rule.” Maj. Op. at 837.

Contrary to the majority’s view, however, the remedy of suppression is hardly inappropriate in a case such as this, where a search executed with excessive and unreasonable force directly results in the discovery of the seized evidence. Because the unlawful search was causally related to the discovery of the evidence, and because our prior cases hold that suppression may be appropriate when the manner of the search — and not just the initial entry or a “preliminary mis-step,” Hudson, 126 S.Ct. at 2164 — exceeds the terms of the warrant, I would hold that suppression is the proper remedy in Ankeny’s case and therefore reverse his conviction.

II. Hudson v. Michigan Should Not Be Extended

In Hudson, the Supreme Court held that suppression is no longer a remedy for constitutional violations of the knock-and-announce requirement. 126 S.Ct. at 2168. The Court, however, was divided over the basis for its holding. Justice Kennedy, whose concurring opinion provided the Hudson majority’s fifth vote, joined in parts I through III of Justice Scalia’s opinion for the Court, but declined to join Part IV, which stated that “[a] trio of cases— Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); and United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) — confirms our conclusion that suppression is unwarranted in this case.” Hudson, 126 S.Ct. at 2168; id. at 2171 (Kennedy, J., concurring). While Part IV of Justice Scalia’s opinion attempts to link Hudson’s rejection of suppression as a remedy for violating the Fourth Amendment’s knock-and-announce requirement to a broader trend abandoning the exclusionary rule in other contexts, Justice Kennedy’s concurring opinion cuts very much in the opposite direction, cautioning that:

[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announee requirement, a violation is not sufficiently related to the later discovery of the evidence to justify suppression.

Id. at 2170 (emphasis added).

In determining whether to extend Hudson beyond the “specific context,” of the knock and-announce requirement, as the government asks us to do here, we should respect Justice Kennedy’s instruction that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.” Id. In the Appendix to his dissenting opinion in Hudson, Justice Breyer provides a list of 41 Supreme Court decisions from 1914 to 2006 “requiring suppression of evidence seized (or remanding for lower court to make suppression determination) in a private home following an illegal arrest or search.” Id. at 2186-88 (Breyer, J., dissenting). These decisions reflect the important rights that are at stake, as we consider whether suppression is the appropriate remedy for the unlawful violent search that occurred of Ankeny’s private home. Although the majority purports not to extend the holding of Hudson, its opinion does extend Hudson, far beyond the “specific context of the knoek-and-an-nounce requirement .... ” Id. at 2170 (Kennedy, J., concurring). Applying the test employed by Justice Kennedy, I would hold that in Ankeny’s case the unconstitutional search is “sufficiently related to the later discovery of the evidence to justify suppression.” Id. Indeed, here, there is no attenuation of any kind. It is the unlawful search itself that led directly to the discovery of the evidence at issue.

III. Evidence May Be Suppressed Where, As Here, Officers Seize it as a Direct Result of a Search Executed with Unlawful Excessive Force

Although the majority correctly recognizes that “[unnecessary destruction of property or use of excessive force can render a search unreasonable,” and states that “[wjhether this entry and search were conducted reasonably is a close question,” Maj. Op. at 836, it ultimately avoids deciding that issue by holding that “[t]he alleged Fourth Amendment violation and the discovery of the evidence lack the causal nexus that is required to invoke the exclusionary rule.” Id. at 837. After citing several cases for the proposition that causality is a necessary condition for applying the exclusionary rule, the majority concludes that “the discovery of the guns was not causally related to the manner of executing the search,” because “[t]he police had a warrant” and “[e]ven without the use of a flash-bang device, rubber bullets, or any of the other methods that Defendant challenges, ‘the police would have executed the warrant they had obtained, and would have discovered the [evidence] inside the house.’ ” Maj. Op. at 838 (quoting Hudson, 126 S.Ct. at 2164).

By holding that the exclusionary rule does not apply to searches conducted with excessive force, the majority overlooks our prior decisions that have applied or assumed the appropriateness of suppression when a “warranted search” is nevertheless rendered unreasonable because “it exceeds in scope or intensity the terms of the warrant.” United States v. Becker, 929 F.2d 442, 446-47 (9th Cir.1991) (quoting United States v. Penn, 647 F.2d 876, 882 n. 7 (9th Cir.1980) (en banc)); see also United States v. Chen, 979 F.2d 714, 717 (9th Cir.1992). “[W]here there is a ‘flagrant disregard’ for the terms of the warrant, the district court may suppress all of the evidence, including evidence that was not tainted by the violation.” Chen, 979 F.2d at 717 (quoting United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988)). These cases have never been overruled and they are in no respect inconsistent with Hudson. Because the intensity of the violent search of Ankeny’s home demonstrated a “flagrant disregard” for the terms of the warrant, thereby turning it into a general warrant, it is necessary and appropriate to suppress the evidence that the officers seized pursuant to that warrant. Id.

A. Discovery of the Guns is Causally Related to the Unlawful Search

Contrary to the majority’s conclusion, the substantial Fourth Amendment violation in this case^ — the use of extreme and excessive force in the search (not merely the existence of an initial unlawful entry or a “preliminary mis-step,” Hudson, 126 S.Ct. at 2164) — was the direct cause of the discovery of the guns. Under the controlling law, where, as here, the discovery of the evidence is the “direct result of an unconstitutional search,” the evidence is subject to exclusion. Segura, 468 U.S. at 804, 104 S.Ct. 3380 (“Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion.”).

In Hudson, as I have noted, the Court wrote that the knoek-and-announce violation concerned only the “manner of entry” or a “preliminary misstep,” 126 S.Ct. at 2164, which was followed by an “ensuing, lawful search.... ” Id. at 2171 (Kennedy, J., concurring). As Justice Kennedy explained, when “a violation results from want of a 20-second pause but an ensuing, lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence.” Id. (emphasis added). In this case, however, law enforcement officers executed the overall search that led directly to the seizure of the evidence with extreme and excessive force; indeed, the search was permeated with illegality. Given that the excessive force employed in this case rendered the entire search unlawful under the Fourth Amendment, the search bears no resemblance to the “lawful search” that followed the initial “entry” in Hudson. Id. Indeed, the facts and circumstances in this case are the polar opposite of those in Hudson. In short, Hudson is entirely inapplicable.

Moreover, the majority’s own description of the events belies its conclusion that the unlawful search was not the cause of the discovery of Ankeny’s weapons. After explaining how the police broke down the door and entered the home, the majority then describes what happened inside the house subsequent to the unlawful entry. The law enforcement officers threw a flash bang device at Ankeny that exploded and badly burned him, secured the second floor, and threw a second flash bang device into an open area on that floor, setting on fire a bed in which two people were lying. Meanwhile, the officers shot bullets into the second story windows — indeed shot out ten windows. The majority then states that “[tjhereafter, the police recovered” two semiautomatic guns in the living room, a shotgun and a rifle in the upstairs bedroom, and another rifle in the basement. Maj. Op. at 833-34 (emphasis added). Because the immediate direct result of the violent search at issue here was the discovery of the guns, it follows that the discovery of the guns was causally related to the unconstitutional search.¹ Unlike in Hudson, here there was no intervening lawful search that broke the chain of causation. Accordingly, the “exclusionary rule reaches ... [the] primary evidence obtained as a direct result of [this] illegal search .... ” Segura, 468 U.S. at 804, 104 S.Ct. 3380 (citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)).

B. The Benefits of Excluding the Evidence Outweigh the Costs in Cases in Which Excessive Force Renders a Search Unconstitutional

In addition to the presence of causality, in this case the cost-benefit rationale, which was critical to Hudson’s rejection of the exclusionary rule for knoek-and-an-nounce violations, strongly favors the suppression of the evidence directly obtained by a search conducted with unlawful, excessive force. See Hudson, 126 S.Ct. at 2165-68. Although “the exclusionary rule has never been applied except where its deterrence benefits outweigh its substantial costs,” Id. at 2165, the benefits of suppressing the fruits of military-style searches conducted with excessive force that may cause serious destruction to the home and serious injuries and the risk of death to occupants and guests, both adults and children, far outweigh the costs.

Compared to the “costs” of allowing suppression for the knock-and-announce rule, which Justice Scalia’s opinion asserts would set dangerous criminals free for trivial reasons and generate a constant flood of such claims, id. at 2165-66, the type of claim asserted by Ankeny should arise rarely and therefore would be unlikely to produce a swarm of cases involving excessive force searches. Also, officials and courts are far more competent to discern which extraordinary tactics constitute excessive force than to determine in the heat of the moment “what constitute^] a reasonable wait time in a particular case” before entering — usually a matter of calculating, wholly subjectively the appropriate number of seconds. Id. at 2166 (internal quotations and citations omitted). In fact, without any difficulty, we have in the past in a case remarkably similar to the one before us struck down, as constituting excessive force, specific tactics such as the ones used in the case before us. See, e.g., Boyd v. Benton County, 374 F.3d 773, 779 (9th Cir.2004) (holding that officers had employed “constitutionally excessive” force by “blindly” throwing a flash bang grenade into an apartment occupied by five to eight individuals). Finally, on the cost side, the knock-and-announce rule could deprive some officers of their ability to make on the spot discretionary judgments on the basis of their experience and cause them to “wait longer than the law requires.” Hudson, 126 S.Ct. at 2166. The tactical decision whether to use massive, excessive military type force, however, is ordinarily made after full consultation well before the officers execute a warrant. In fact, the record here reveals that officers discussed for weeks how to arrest Ankeny and what tactics would be employed. Because of the opportunity for careful, deliberate planning, it is possible to minimize the risks to officers while at the same time ensuring the protection of individual constitutional rights.

As to the “deterrence benefits” of exclusion, in Hudson Justice Scalia’s opinion did not seem to find much that was beneficial about suppression as the result of a violation of the knock-and-announce rule. See Hudson, 126 S.Ct. at 2166 (referring to the rule as “the right not to be intruded upon in one’s nightclothes”).² In the context of a search executed with excessive force, however, the benefits of deterrence are tremendous, and much greater than in Hudson. The principal benefits of deterrence are avoiding unnecessary destruction of private property and, most important, reducing the risk of serious injury and death to home owners, their families and their guests, including innocent children. In Ankeny’s case, rubber bullets rained through the windows, and one set of officers caused Ankeny serious injury by throwing a flash bang device toward him that burned him badly, while a second group of officers set a bed occupied by others on fire by hurling a second flash bang device in their direction. At the time the officers launched their assault, they were aware that a one-year-old child was an occupant of the house and in fact when the attack began the one-year-old was present. Certainly, the right not be set afire or killed “in one’s night-clothes” is far more grave and worthy of protection than the “right not to be intruded upon in [that attire].” Id. at 2167.

Although the fear of a lawsuit under 42 U.S.C. § 1983 may deter some officials from engaging in such dangerous and warlike conduct, I do not believe that the potential for civil damages would sufficiently deter law enforcement officers from using the type of excessive force at issue here. See id. at 2167-68 (stating that “[a]s far as we know, civil liability is an effective deterrent” to knock-and-announce violations). It is the official for whom the fear of civil liability is not ordinarily an effective deterrent that suppression is a necessary remedy in order to ensure compliance with the Fourth Amendment. One would expect that only the most belligerent of law enforcement officials, at whatever level, or those most disdainful of individual rights, would employ the type of force applied by the officers in this case. It is such officials, however, who are least likely to be deterred by civil liability alone, especially in light of the general practices regarding indemnification.³ Moreover, informing law enforcement officials a priori that suppression will never be an available remedy if they first obtain a warrant, regardless of how excessive or destructive the invasion and search of the house, would serve only to encourage some individuals to unleash overwhelming force on our citizens in contravention of the Fourth Amendment.

Finally, the facts of this case demonstrate a lack of professionalism and disdain for the rights of individuals on the part of some law enforcement officers that is not likely to be cured by the possibility of a § 1983 action. Cf. Hudson, 126 S.Ct. at 2168. The officers who executed the search were anything but professional in how they described, in text messages, “the fun” and the “good time had by all” when they caused Ankeny to suffer serious burns. In three text messages, officers wrote to each other:

(1) “SORRY TIM, WE WERE JUST JUMPING OFF.. IT WAS 936 NE ... BIG FUN!”; (2) “IT WAS CRAZY ... FUN HAD BY ALL ... WELL EXCEPT FOR THE GUY WHO LAID ON THE FLASHBANG ... 2ND DEGR BURNS ... MISSING HALF A MUSTACHE”; (3) “BIG TIME FUN!! LOTS OF BROKEN GLASS, BAD GUY JUMPED ON THE FLASHBANG, GOOD TIME HAD BY ALL.”

In sum, the costs of suppressing evidence in cases of excessive force are far less substantial than those in Hudson, whereas the benefits of deterrence, namely the protection of human life and property, are far more significant. Indeed, our analysis confirms that the exclusionary rule is not only appropriate, but absolutely necessary, to protect men, women, and children whose physical well being and very lives may be placed in jeopardy by the intentional and calculated use of excessive force in violation of the Fourth Amendment.

C. The Majority’s Holding Will Lead to Unacceptable Results and is Unsupported by the Cases Upon Which It Relies

Although the majority does not explicitly state or hold that suppression may never be a remedy for the use of excessive force while executing a warrant, its causality argument followed to its logical conclusion does just that — it creates a blanket exception to the exclusionary rule for unreasonably executed searches whenever the officers possess a valid search warrant. This, of course, will inevitably lead to most unfortunate consequences, because under the majority’s approach even the most outrageous methods employed by invading officers would be irrelevant so long as the officers had obtained a warrant. Certainly, at least five members of the Hudson Court could not have intended a result so contrary to our fundamental Fourth Amendment precepts.

The cases cited by the majority do not support its holding. See Maj. Op. at 837. First, as noted above, Hudson is inappo-site because it involved a lawful search following a preliminary misstep or initial entry, whereas the search of Ankeny’s home involved an unlawful search that directly resulted in the discovery of the weapons.⁴

Second, reliance on Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), is similarly misplaced in this case, just as five Justices found such reliance unhelpful in Hudson. See Hudson, 126 S.Ct. at 2171 (Kennedy, J., concurring); id. at 2183 (Breyer, J., dissenting). Segura involved an illegal war-rantless entry, followed 19 hours later by a lawful search pursuant to a lawful warrant that the police obtained in the interim with information that was unrelated to the war-rantless entry. The Court refused to suppress the evidence, not because of a lack of causal relationship to the conduct of the search, but because the search was lawful in every respect. The search was conducted pursuant to what the Court determined to be a lawful warrant and was conducted in a lawful manner. See id. at 813-14, 104 S.Ct. 3380. The attenuation applied only to the 19-hour-old initial entry. Here, of course, the entire point is that the search that produced the seized evidence was conducted with excessive force and was, accordingly, unlawful.

Third, United States v. Hector, 474 F.3d 1150 (9th Cir.2007), does not compel the majority’s holding. Id. at 1154-55 (holding that suppression is not an appropriate remedy for officers’ failure to serve a warrant to the defendant before, during, or immediately after the search). If officers violate their obligation to serve the warrant by failing to present it “immediately after a search of a home,” id. at 1154 (emphasis added) (quoting United States v. Martinez-Garcia, 397 F.3d 1205, 1212 n. 3 (9th Cir.2005)), it cannot be the but for cause of the seizure of evidence that has already occurred. Here, however, the excessive force that transformed what could have been a lawful search pursuant to a valid warrant into an unlawful search occurred directly before the officers recovered the evidence and also enabled the officers to retrieve the weapons more easily. Moreover, the deterrence benefits associated with suppressing evidence obtained through the use of excessive force are many times greater and far worthier of protection than the “relatively small [deterrence benefit] in the case of failure to present a copy of the warrant.” Id. at 1155 (suggesting that once officers have obtained a valid warrant, they have little incentive to fail to present the warrant when they execute it).

Finally, to the extent that the majority opinion asserts that the evidence would have been discovered if the law enforcement officers had lawfully executed the warrant without excessive force, the argument does not advance its cause. It is often the case that officers who conduct an unlawful search might instead have conducted a lawful one. That, however, is insufficient to establish a lack of causality or to render the unlawful search valid. To the contrary, if the search was illegal, we do not overlook the illegality on the ground that the search could have been conducted legally. Nor do we refuse to suppress evidence for that reason. For example, officers who conduct an unlawful warrantless search could often have obtained a warrant and lawfully executed it. We do not find an absence of a causal relationship between discovery of the evidence and the unlawful search in such circumstances. Rather, we suppress the evidence. United States v. Reilly, 224 F.3d 986, 995 (9th Cir.2000) (suppressing evidence and refusing “ ‘to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant.’ ”) (quoting United States v. Mejia, 69 F.3d 309, 320 (9th Cir.1995)).

D. The Search of Ankeny’s Home Was Unreasonable

Having determined that suppression may be an appropriate remedy in an excessive force case, I would hold that in this case the “intolerable intensity” of the force employed rendered the search unreasonable. Becker, 929 F.2d at 446; see also Boyd, 374 F.3d at 778-79.

Ankeny contends that the tactics employed by officers constitute excessive force, including the deployment of 44 officers in the military style operation, the forcible entry of the home by means of a battering ram, the kicking down of the doors of every room in the house, the firing of myriad rubber bullets into the house shattering all the upstairs windows, and above all, the throwing of two “inherently dangerous” flash-bang devices towards three individuals, all with knowledge that a one year old infant was among the residents of the house. Boyd, 374 F.3d at 779. In this case, it is unnecessary, however, to look beyond the officers’ use of the two flash-bang devices to hold that their “use of force was constitutionally excessive.” In that respect, our decision in Boyd controls. Id. There, we held that officers used excessive force when they threw a flash-bang device “‘blind’ into a room occupied by innocent bystanders, absent a strong government interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury.” Id. Here, one of the devices was hurled in Ankeny’s direction as he was complying with the officers’ instruction to him to get down on the floor. The other was then thrown toward a bed occupied by two individuals.

Compared to the deployment of the single flash-bang device in Boyd, the officers’ use of two such devices in the instant action and the deliberate throwing of them in the direction of Ankeny and the two other occupants of the house whom the officers had no reason to believe had committed any offense was far more excessive. After breaking down the door with a battering ram, an officer demanded that Ank-eny, who had been sleeping in a recliner in his living room, lie down on the floor. Although Ankeny did not resist or act in a threatening manner, an officer lobbed the flash-bang device towards him; as a result, the device exploded and caused first-and second-degree burns to his face and chest. Similarly, an officer who proceeded to an upstairs bedroom tossed a second device onto the floor by the edge of the bed where a man and a woman were lying, setting the bed on fire. If throwing a flash-bang device blindly into a room without warning is excessive, it is unquestionable that tossing these “explosive, incendiary weapon[s]” directly at three human beings without any notice, as the officers did here, constitutes constitutionally excessive force. Id. Also, as in Boyd, in which officers knew there were five to eight people sleeping in the apartment, id., officers here knew that at least four to seven adults and a one-year-old child resided at Ankeny’s home.⁵ Moreover, the evidence of severe property destruction noted by the majority — the breaking of many windows and doors without a clear explanation as to any necessity — strengthens the conclusion that the search was unreasonable due to its “intolerable intensity.” Maj. Op. at 837. Certainly, there is no evidence in the record that suggests that the officers took any substantial steps to reduce the risk of injury. In my view, a military style invasion of the type that occurred here is justified only in rare circumstances and only as a last resort, at least where innocent civilians and children are known to be present in the house.

IV. Conclusion

I reiterate here what we have stated before: “[njowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved.... The sanctity of a person’s home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment.” Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990) (citations omitted). Bearing this principle in mind, as well as Justice Kennedy’s firm statement in Hudson that “the continued operation of the exclusionary rule ... is not in doubt,” 126 S.Ct. at 2170 (Kennedy, J., concurring), I cannot agree that the mere fact that the police had a lawfully obtained search warrant bars this Court from suppressing the evidence directly discovered during the violent and unlawful search that actually occurred. Accordingly, I dissent.

1 . The majority, for some reason best known to its members, asserts that the property damage was done during the "entry” rather than during the "search.” This is patently incorrect, and is in any event irrelevant. The principal excessive force was directed against persons, not property, and the force was applied after the officers had entered the dwelling and were in the process of executing the search warrant.

2 . Five Justices, however, expressed the view that the knock-and-announce rule protects far greater interests and values than Justice Sca-lia’s opinion acknowledged. See id. at 2170 (Kennedy, J., concurring) (stating that “privacy and security in the home are central to the Fourth Amendment's guarantees,” and stating that ”[s]ecurity must not be subject to erosion by indifference or contempt.”); id. at 2180 (Breyer, J., dissenting).

3 . "[PJolice officials are usually insulated from any economic hardship associated with lawsuits based on conduct within the scope of their authority.....Police officers are generally provided free counsel and are indemnified for conduct within the scope of their authority." Briscoe v. LaHue, 460 U.S. 325, 366 & n. 38, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (Marshall, J., dissenting) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 713, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (Powell, J., concurring); Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810 (1979)); accord Peter H. Schuck, Suing Government: Citizen remedies for official wrongs 83-88 (1983).

4 . Although the majority claims that United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) "bears some similarity to this case,” it is inapposite for the same reason as Hudson — it involved only the "manner in which the entry was accomplished,” the breaking of a single window of the defendant’s garage, and not an unlawful search. Id. at 71, 126 S.Ct. 2159. Moreover, to construe Ramirez, we must look to Justice Kennedy’s concurring opinion in Hudson, in which he stated that the "application of the exclusionary rule depends on the existence of a ‘sufficient causal relationship' between the unlawful conduct and the discovery of evidence.” Hudson, 126 S.Ct. at 2171 (quoting Ramirez, 523 U.S. at 72 n. 3, 118 S.Ct. 992). As I have explained above, such a causal connection exists here. To the extent that the majority relies upon the dictum in Ramirez that Justice Scalia endorsed in Part IV of Hudson, it errs. Justice Kennedy did not concur in that part of Justice Scalia's opinion. Moreover, the meaning of the dictum is far from clear. See id. at 2170 (“ 'destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.’ ”); Maj. Op. at 837 (quoting the same dictum). The dictum suggests only that sometimes in cases in which an unlawful destruction of property occurs, there will be no justification for suppressing the evidence. That tells us little about the opposite circumstances — cases in which the use of excessive force taints a search sufficiently as to warrant such suppression.

5 . The potentially dangerous circumstances that officers faced in searching the home in Boyd were also remarkably similar to — and if anything more perilous than — Ankeny’s case, where police believed that Ankeny possessed a semi-automatic handgun. In Boyd, the officers believed that the armed robbery suspect might be in the apartment, that a stolen .357 magnum might be there as well, that another potential occupant had tried to buy an assault rifle, and two "armed individuals” were witnessed leaving the apartment. 374 F.3d at 777. The danger created by these weapons was heightened by the fact that "the apartment had a loft from which a shooter could have placed the officers in a vulnerable position as they entered the apartment....” Id. Despite such potential dangers, we held that the officers did not demonstrate the strong government interest that would permit officers to blindly deploy such an inherently dangerous device. Id. at 779.