F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 5 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 96-3105
WILLIAM HENRY MYERS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 94-20013-01)
Kim Martin Fowler, Assistant U.S. Attorney, Office of the United States Attorney,
Kansas City, Kansas, for Plaintiff - Appellee.
Michael Lewis Harris, Office of the Federal Public Defender, Kansas City, Kansas, for
Defendant - Appellant.
Before EBEL, Circuit Judge, WHITE,* Associate Justice (Ret.), and KELLY, Circuit
Judge.
KELLY, Circuit Judge.
*
The Honorable Byron R. White, Associate Justice of the United States Supreme Court,
(Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).
Defendant William Henry Myers appeals the district court’s denial of his motion to
suppress evidence. Defendant entered a conditional plea of guilty to possession with
intent to distribute more than 100 but less than 1,000 marijuana plants, 21 U.S.C.
§ 841(a)(1). See Fed. R. Crim. P. 11(a)(2). He also appeals the court’s imposition of the
minimum mandatory sentence under 21 U.S.C. § 841(b)(1)(B). Our jurisdiction arises
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
Background
In October 1993, the Kansas Bureau of Investigation (KBI) received information
from the Riley County Police Department that Mr. Myers was maintaining an indoor
marijuana growing operation. The county police had received the information from the
subjects of two separate investigations. One of them provided Mr. Myers’s home address
and phone number.
KBI agents confirmed that Mr. Myers lived at the address provided by the
informant. They further observed that Mr. Myers’s attic windows were covered with a
black opaque material, and that the snow from a recent snowfall had melted from Mr.
Myers’s roof, while the snow remained on the roofs of surrounding residences. A check
of Mr. Myers’s utility accounts revealed that Mr. Myers’s electricity and water usage was
unusually high between December 1993 and February 1994, both in comparison to the
previous year’s amounts at the same residence, and to a nearby house of comparable size.
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For example, Mr. Myers used 2,340 kilowatt hours and 25,500 gallons of water in January
1994--more than double the amount of electricity and five times the amount of water used
by the house next door during that month. The KBI’s investigation also revealed that Mr.
Myers had used unissued social security numbers for his telephone and utility accounts.
Finally, KBI agents discovered that Mr. Myers had prior convictions for burglary and
theft, and cocaine trafficking. They also discovered that, as a juvenile, Mr. Myers had
been involved in the fire bombing of a jail or police vehicle and had been convicted of
possession of an unregistered firearm and possession of a fire bomb.
On the basis of this information, the KBI obtained a warrant to search Mr. Myers’s
residence. The KBI also received permission to conduct a night-time search, reasoning
that it would enhance officer safety because the house was surrounded by a substantial
open area. The KBI agents also noted that safety was a concern because of Mr. Myers’s
criminal history, and because manufacturers and distributors of narcotics often maintain
firearms to protect themselves and their operations.
On March 9, 1994, at approximately 6:09 a.m., agents of the KBI, dressed
completely in black and wielding automatic machine guns, knocked on Mr. Myers’s front
door and announced that they had a search warrant. The agents waited ten seconds, then
battered down the door and rolled a Deftec Model 25 Distraction Device, also known as a
“flash-bang,” into the living room. The device exploded, and the agents then stormed the
house, finding Mr. Myers, his wife, nineteen-year-old stepson, nine-year-old
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stepdaughter, and seventeen-month-old daughter.
After subduing Mr. Myers and his wife and children, the KBI conducted a search
of the house, which revealed a substantial marijuana growing operation in the attic.
The district court sentenced Mr. Myers to the statutory minimum 60 months, 21
U.S.C. § 841(b)(1)(B), holding that it was within its discretion not to apply the “safety
valve” provision contained in 18 U.S.C. § 3553(f), which allows a departure from the
statutory minimum if the defendant meets certain criteria.
Discussion
A. Fourth Amendment Claims
We review the district court’s factual findings for clear error; however, the
reasonableness of a search and seizure under the Fourth Amendment is a question of law
which we review de novo. United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.
1996). “To assess the validity of a search warrant under the Fourth Amendment, we
review whether the totality of the circumstances in the affidavit provided . . . a
substantial basis for finding a fair probability that contraband or other evidence of a crime
would be found at the searched premises.” United States v. McCarty, 82 F.3d 943, 947
(10th Cir.) (quotations omitted), cert. denied, 117 S. Ct. 257 (1996).
Mr. Myers first claims that the search warrant was not supported by probable cause
because the informants did not provide the basis for their knowledge, and the independent
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police investigation was insufficient to corroborate the informants’ tips. We disagree. In
United States v. Corral, 970 F.2d 719 (10th Cir. 1992), we held that an informant’s tip
was sufficiently corroborated by a police investigation which showed that the defendant
had previously been arrested for drug trafficking, and that the defendant had had an
unusually high volume of visitors briefly entering and leaving her residence, consistent
with drug trafficking. Id. at 727.
Similarly, here the police uncovered enough evidence to corroborate the
informants’ statements. Among other things, Mr. Myers’s residence was consuming
unusually high amounts of electricity and water, and, as in Corral, Mr. Myers had a
criminal record showing a history of drug involvement. The investigation sufficiently
corroborated the informants’ statements, and thus the totality of the circumstances in the
affidavit provided a substantial basis for finding a fair probability that an illegal growing
operation would be found at Mr. Myers’s residence.
Mr. Myers also argues that the information provided to the police was “stale,”
because there was a five-month gap between when the police received the tips and when
the search warrant was obtained. However, the determination of whether information is
stale depends on the nature of the crime and the length of criminal activity, not simply the
number of days that have elapsed between the facts relied upon and the issuance of the
warrant. United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990). We agree with
the district court that Mr. Myers’s drug activities were “ongoing and continuous,” so that
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the passage of time did not render the information stale.
Finally, Mr. Myers attacks the validity of the warrant, claiming that KBI agents
manufactured the information in the warrant concerning one informant’s tip, and that the
affidavit failed to reveal that the informants were under arrest at the time they made
statements to the police. We need not decide these issues, however, because the
information gathered by the KBI is sufficient to establish probable cause even without the
challenged tip. Franks v. Delaware, 438 U.S. 154, 156 (1978) (even if a court finds that
some information is false, suppression is required only if the false or misleading
information is necessary to a finding of probable cause); United States v. Knapp, 1 F.3d
1026, 1029 (10th Cir. 1993) (a knowing or reckless omission from a warrant application
violates the Fourth Amendment only if the omitted material would vitiate probable
cause).
Mr. Myers next claims that the KBI’s method of executing the search warrant
violated his Fourth Amendment right against an unreasonable search. He argues that the
KBI failed to comply with the knock and announce requirement in violation of the Fourth
Amendment. See Wilson v. Arkansas, 115 S. Ct. 1914, 1918 (1995). However, the
agents who conducted the search testified that they knocked loudly on Mr. Myers’s front
door, and waited ten seconds before battering it down. Thus, the district court’s
conclusion that the police knocked and announced is supported by evidence and is not
clearly erroneous.
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Mr. Myers also challenges the agents’ use of what he calls a “military-style
assault.” Pursuant to the warrant, the agents, dressed in black uniforms, conducted the
search of Mr. Myers’s residence in the early morning hours. The agents battered down
the door and rolled a distraction device into the house, which exploded with a brilliant
flash of light and a loud bang, the purpose of which is to distract and disorient any
occupants in the vicinity of the entry.
In reviewing Mr. Myers’s Fourth Amendment claim, we must determine whether
the agents’ actions were “objectively reasonable” in light of the facts and circumstances
confronting them. Graham v. Connor, 490 U.S. 386, 397 (1989). The use of a “flash-
bang” device in a house where innocent and unsuspecting children sleep gives us great
pause. Certainly, we could not countenance the use of such a device as a routine matter.
See Jenkins v. Wood, 81 F.3d 988, 996-98 (10th Cir. 1996) (Henry, J., concurring)
(questioning the policies of the KBI in using “flash-bangs” and no-knock entries in the
execution of a warrant). However, we also recognize that we must review the agents’
actions from the perspective of reasonable agents on the scene, Graham, 490 U.S. at 396,
who are legitimately concerned with not only doing their job but with their own safety.
Although it might seem that the KBI’s actions in this case come dangerously close to a
Fourth Amendment violation, we cannot say that their actions were objectively
unreasonable given the district court’s factual findings. The district court found that the
agents knew that Mr. Myers had a history of illegal drug trafficking, and had spent time in
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federal prison for a fire bombing incident, although they were unsuccessful in learning of
the details of the incident. The district court obviously credited police testimony that Mr.
Myers’s lengthy pattern of criminal activity--beginning with the fire bombing in 1971 and
continuing until the cocaine conviction in 19881--made them apprehensive. The district
court also found that the agents knew that there was a fair probability that Mr. Myers’s
residence contained an illegal marijuana growing operation.
B. Sentencing
Mr. Myers claims that the district court erred by imposing the statutory minimum
of 60 months, see 21 U.S.C. § 841(b)(1)(B), rather than imposing a lesser sentence
pursuant to the “safety valve” provision contained in 18 U.S.C. § 3553(f).2 Section
1
The police also had information that in 1988, Mr. Myers had told law enforcement
agents that he had been involved with drugs for fifteen years.
2
Notwithstanding any other provision of law, in the case of an offense under [21 U.S.C.
§ 841], the court shall impose a sentence pursuant to [the United States Sentencing Guidelines,
28 U.S.C. § 994] without regard to any statutory minimum sentence, if the court finds at
sentencing . . . that--
(1) the defendant does not have more than 1 criminal history point, as determined
under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon (or induce another participant to do so) in connection
with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others
in the offense, as determined under the sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in 21 U.S.C. [§] 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence the defendant has concerning
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3553(f) provides that the district court shall impose a sentence pursuant to the sentencing
guidelines, see U.S.S.G. § 2D1.1, without regard to the statutory minimum, if the
defendant meets five criteria. We review de novo the district court’s interpretation of a
statute or the sentencing guidelines. United States v. Acosta-Olivas, 71 F.3d 375, 377
(10th Cir. 1995).
The district court held that whether the safety valve provision should apply is a
matter within its discretion, and declined to even address whether the defendant met the
five criteria listed in § 3553(f). That holding is at odds with the plain language of the
statute, which directs the court to disregard the statutory minimum if the defendant meets
the five criteria: “[T]he court shall impose a sentence . . . without regard to any statutory
minimum sentence . . . .” It is a basic canon of statutory construction that use of the word
“shall” indicates a mandatory intent. Norman J. Singer, 1A Sutherland Statutory
Construction § 25.04 (5th ed. 1992); see also Association of Civilian Technicians v.
Federal Labor Relations Auth., 22 F.3d 1150, 1153 (D.C. Cir. 1994) (noting that the word
“shall” in a statute “generally indicates a command that admits of no discretion on the
part of the person instructed to carry out the directive”).
the offense or offenses that were part of the same course of conduct or of a common
scheme or plan, but the fact that the defendant has no relevant or useful other information
to provide or that the Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this requirement.
18 U.S.C. § 3553(f).
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Regardless, we may affirm the judgment for reasons other than those relied upon
by the district court, provided they are supported by the record. Medina v. City and
County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir. 1992). The record is clear that Mr.
Myers has not met section 5 of the safety valve provision, which required him to disclose
“all information and evidence . . . concerning the offense . . . that [was] part of the same
course of conduct or of a common scheme or plan.” Section 5 is very broad, requiring
disclosure of everything the defendant knows about his own actions and those who
participated in the crime with him. See Acosta-Olivas, 71 F.3d at 378-79 (noting that
section 5 has been termed the “tell all that you can tell” requirement). In this case, Mr.
Myers related to the KBI all that he knew about his own actions, but refused to provide
other information, such as who his buyers were or the names of others connected to his
operation. Mr. Myers did not provide additional information apparently because he did
not think it would be helpful to the government. However, section 5 requires disclosure
“whether or not it is relevant or useful to the government’s investigation.” United States
v. Shrestha, 86 F.3d 935, 939 (9th Cir. 1996); see also Acosta-Olivas, 71 F.3d at 379.
The burden was on Mr. Myers to prove that he met the five criteria contained in
§ 3553(f). United States v. Verners, 1996 WL 742388, at *1 (10th Cir. Dec. 31, 1996).
He failed to carry that burden.
AFFIRMED.
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