UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD J. RIZZI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:04-
cr-00425-JFM)
Submitted: February 7, 2007 Decided: March 12, 2007
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, Joanna Silver, Assistant Federal Public Defender,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Philip S. Jackson, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard J. Rizzi was convicted after a guilty plea to one
count of possession of a firearm by a felon in violation of 18
U.S.C. § 922(g)(1) (2000), and was sentenced to twelve months and
one day in prison. On appeal, Rizzi asserts the district court
erred in denying his motion to suppress because the execution of
the search warrant by law enforcement was unreasonable under the
Fourth Amendment based on the totality of the circumstances.
Specifically, Rizzi asserts that because (I) there was no good
reason to execute the search warrant at night; (ii) the police
failed to comply with the “knock and announce” requirement of the
Fourth Amendment; and (iii) there were more than twenty officers
present to execute the warrant, the execution of the warrant
violated the Fourth Amendment.* Finding no error, we affirm.
We review a district court’s factual findings underlying
a motion to suppress ruling for clear error and the district
court’s legal determinations de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d
263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005). When a
suppression motion has been denied, we review the evidence in the
light most favorable to the Government. See United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
*
Rizzi’s guilty plea reserved his right to challenge on appeal
the district court’s denial of his motion to suppress.
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The lawfulness of an entry by state officers executing a
search warrant is determined by reference to the Fourth Amendment
reasonableness standard. See Mensh v. Dyer, 956 F.2d 36, 40 (4th
Cir. 1991). To be constitutional, a search made pursuant to a
search warrant must be “reasonable.” See Vernonia Sch. Dist. v.
Acton, 515 U.S. 646, 653 (1995). When law enforcement officials
are searching for evidence of a crime, reasonableness requires
probable cause and a warrant unless one of the exceptions to the
warrant requirement applies. See Katz v. United States, 389 U.S.
347, 357 (1967) (calling “per se unreasonable” any search conducted
without a warrant issued by a judge or magistrate pursuant to a
showing of probable cause and in the absence of an exception).
Whether a particular search meets the reasonableness standard “is
judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate
governmental interests.” Skinner v. Ry. Labor Executives' Ass'n,
489 U.S. 602, 619 (1989) (internal quotations omitted).
We have previously held in a prior appeal in this very
case that a search warrant executed at night pursuant to § 879 need
only be supported by probable cause. See United States v. Rizzi,
434 F.3d 669, 674 (4th Cir. 2006). Rizzi does not assert the
search warrant of his home was not supported by probable cause.
Accordingly, we conclude that Rizzi’s argument the police needed a
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“good reason” to execute the search warrant at 4:30 a.m. is
meritless.
Rizzi correctly asserts that the reasonableness inquiry
under the Fourth Amendment includes the common law principle that
law enforcement officers should knock and announce their presence
and then wait a reasonable period of time before entering a
residence. See Wilson v. Arkansas, 514 U.S. 927, 931-34 (1995);
Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Although this
requirement protects an individual's interest in avoiding the
destruction of property that may be caused by a forcible entry and
his interest in being able to prepare himself for an entry by law
enforcement officers, see Richards v. Wisconsin, 520 U.S. 385, 393
n.5 (1997), the requirement must also take into consideration that
law enforcement officers who suspect imminent loss of evidence must
be able to enter a home before contraband may be discarded. See
United States v. Banks, 540 U.S. 31, 38 (2003). It was for this
reason that the Supreme Court in Banks held that a fifteen to
twenty second wait by police after announcing their presence was
sufficient time before entering. Id. (“[W]e think that after 15 or
20 seconds without a response, police could fairly suspect that
cocaine would be gone if they were reticent any longer.”).
The fact that the search warrant was executed at night
while Rizzi was asleep does not, as Rizzi suggests, make the period
of time waited by police unreasonable. It is not the amount of
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time it takes for an occupant of a dwelling to reach the door, but
the exigency of the search that is relevant. See Banks, 540 U.S.
at 40 (“[T]he crucial fact in examining [police] actions is not
time to reach the door but the particular exigency claimed. On the
record here, what matters is the opportunity to get rid of cocaine,
which a prudent dealer will keep near a commode or kitchen sink.”).
Accordingly, we conclude the mere fact the search warrant was
executed at night did not make the fifteen to twenty second wait by
police violative of the Fourth Amendment.
We also conclude that Rizzi’s argument regarding the many
police officers involved in the warrant’s execution is similarly
unavailing. While it is true there were approximately twenty-four
officers involved in the execution of the warrant, Rizzi asserts no
judicial authority for the proposition that a nighttime search may
become invalid if too many police officers take part in its
execution. Moreover, there is no assertion by Rizzi that police
coerced or intimidated him into making a statement regarding the
location of guns in his basement. Accordingly, the cases cited by
Rizzi regarding coercive conduct by police during warrantless
searches are inapposite. See United States v. Jones, 641 F.2d 425,
428-30 (6th Cir. 1981) (finding search of home invalid because it
was conducted at night pursuant to an arrest warrant for defendant
who was not at the home searched and entry was made with an extreme
showing of force); Harless v. Turner, 456 F.2d 1337, 1338-39 (10th
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Cir. 1972) (finding search of vehicle invalid because it was
warrantless and permission was obtained by four or five officers in
the middle of the night after waking the defendant from his sleep).
Finally, the record reveals that not all twenty-four
officers were involved in the execution of the warrant at any one
time. Rather, entry into Rizzi’s residence was secured by ten to
twelve SWAT team members, and the remaining twelve to fourteen
officers entered the residence after it was secured and the SWAT
team members left the residence. Accordingly, we conclude the mere
fact that twenty-four officers took part in the execution of the
warrant did not render its execution unreasonable under the Fourth
Amendment. Based on the foregoing, we conclude the district court
correctly denied Rizzi’s motion to suppress and his motion for
reconsideration of the denial.
Accordingly, we affirm Rizzi’s conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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