United States Court of Appeals
For the First Circuit
No. 99-2120
UNITED STATES,
Appellee,
v.
JOHN D. BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Charles W. Groce, III for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Stephanie S. Browne, Assistant United States Attorney, and
Margaret E. Curran, United States Attorney, were on brief, for
appellee.
June 5, 2001
STAHL, Senior Circuit Judge. Plaintiff-appellant John
Brown was indicted by a federal grand jury on drug and firearm
charges based on evidence seized during a search of his apartment
by the Rhode Island State Police. Brown moved to suppress the
evidence, arguing that the officers violated his Fourth Amendment
rights by failing to knock and announce their presence when
executing the warrant authorizing the search. Brown's motion was
denied, and he subsequently pled guilty to certain of the counts
against him. He now appeals the denial of his motion to
suppress. For the reasons discussed below, we vacate and remand.
I.
Early in March 1998, detectives with the Rhode Island
State Police obtained information from a confidential source
suggesting that cocaine was being distributed from an apartment
in Providence, Rhode Island. The source identified Brown as one
of the individuals residing at the apartment, and as the person
involved in the drug dealing. The source claimed to have been
inside the apartment several times, including, most recently,
five days prior to his contact with the police, and to have seen
significant quantities of cocaine and at least one firearm. A
subsequent review of state records and police surveillance
yielded information confirming Brown's presence at the apartment
and indicating that Brown had previously been arrested for a drug
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offense in Connecticut. On the basis of this information, the
officers sought a warrant to search Brown's apartment for, inter
alia, drugs and weapons.
An application for the warrant was made by Officer
Patrick Reilly in Rhode Island state court on March 17, 1998.
The application consisted of a completed complaint, signed by
Reilly, and Reilly's affidavit setting out the facts supporting
issuance of the warrant. In the affidavit, Reilly stated that
the police sought a “no-knock” search warrant, in order to
“prevent narcotics/evidence from being destroyed and to ensure
officer safety.” However, the complaint did not include any
language indicating that the police were seeking a no-knock
warrant.
What transpired when Reilly appeared before the judge
is only sketchily recounted in the present record. According to
Reilly's testimony at the suppression hearing, the no-knock
request was specifically discussed with the judge, as was the
absence of language in the complaint form regarding the need for
a no-knock warrant. Reilly testified that the judge asked him to
correct the complaint form to make clear that a no-knock warrant
was being requested. Reilly made and initialed a handwritten
notation to that effect on the complaint form and the judge then
signed the warrant. While it appears that, at this point, Reilly
-4-
believed he had been granted the requested no-knock warrant, it
is undisputed that the search warrant the judge actually signed
contained no language authorizing a no-knock entry. Reilly's
testimony also revealed little about what led him to believe that
the judge had agreed with the request for a no-knock warrant.
The officers executed the warrant later the same day,
entering Brown's apartment without knocking or announcing their
presence.1 Once inside, they encountered Brown and advised him
of his rights, and Brown admitted that there was cocaine in his
bedroom. The officers entered that room and found 22 plastic
bags containing a total of 52.52 grams of cocaine; four firearms,
including a sawed-off shotgun; and various other accouterments of
the drug trade. On the basis of this evidence, a federal grand
jury returned a six-count indictment charging Brown with
possession of cocaine with intent to distribute, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count One); possession
of firearms while a convicted felon, in violation of 18 U.S.C. §
922(g)(1) (Counts Two through Five); and possession of an
unregistered sawed-off shotgun, in violation of 26 U.S.C. §§
5841, 5861(d), and 5871 (Count Six).
1
Officer Reilly, who took part in executing the warrant,
testified that the police entered the house in which Brown's
apartment was located through an unlocked rear door. Finding
the door to Brown's unit locked, they “knocked the door in and
proceeded into the apartment.”
-5-
Brown subsequently moved to suppress the evidence
seized from his apartment on two grounds: first, that the warrant
was not supported by probable cause (an argument not pressed on
appeal and therefore not further discussed); and, second, that
the officers had improperly failed to knock and announce their
presence when executing the warrant. The district court held a
hearing on Brown's motion at which Officer Reilly was the only
witness to offer testimony on this issue. Reilly gave brief
testimony concerning his application for the search warrant and
the search itself and was cross-examined, also briefly, by
Brown’s attorney.
In the oral argument that followed, Brown's attorney
contended that the evidence was insufficient to establish that
the officers' no-knock entry was authorized by a warrant, or
justified by any recognized exception to the Fourth Amendment
knock-and-announce requirement. The government countered that
the manner of the entry was in fact justified on both grounds:
the no-knock entry had been made in reliance on the state judge's
approval, notwithstanding the lack of a notation on the warrant
itself, and the unannounced entry was necessary to protect the
police from danger in executing the warrant.
Ruling from the bench, the district court denied
Brown's motion. Bypassing the dispute over whether the judge had
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authorized a no-knock entry, or whether the police reasonably
believed that he had, the court found that the entry was
justified by a reasonable concern for the officers' safety. In
reaching this conclusion, the court relied on three pieces of
information obtained by the police from the confidential
informant and recited by Reilly in his affidavit and oral
testimony: Brown's asserted involvement in “storing and
distributing cocaine” from his apartment; the alleged observation
of “large amounts of cocaine” inside the apartment; and the
observation of “at least one firearm” inside the apartment. The
court concluded that this information created “a reasonable
suspicion that knocking and announcing the presence of the
officers might very well have caused the occupants to use the
firearm in a manner that would have been dangerous to the
officers.”
Following the denial of his motion, Brown pled guilty
to Counts One, Two, and Six of the indictment pursuant to a plea
agreement in which he reserved his right to appeal the denial of
the suppression motion. On August 24, 1999, Brown was sentenced
to 135 months of imprisonment, followed by three years of
supervised release.
II.
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Although the Fourth Amendment's requirement of
reasonableness in the conduct of searches and seizures
incorporates the common-law expectation that police will announce
their presence and request admittance before entering a dwelling
by force, Wilson v. Arkansas 514 U.S. 927, 933 (1995), it does
not “mandate a rigid rule of announcement that ignores
countervailing law enforcement interests,” id. at 934. Instead,
the Constitution creates a “presumption in favor of announcement”
that will yield in appropriate circumstances, including those
where compliance would expose officers to the “threat of physical
violence” or “where police officers have reason to believe that
evidence would be destroyed if advance notice were given.” Id.
at 935-36. The standard to be applied when determining whether
such “exigent circumstances” excuses non-compliance with the
knock-and-announce rule is one of “reasonable suspicion” -- based
on the “particular circumstances” of the case -- that knocking
and announcing “would be dangerous or futile, or that it would .
. . allow[] the destruction of evidence.” Richards v. Wisconsin,
520 U.S. 385, 394 (1997). Establishing the applicability of the
exception is not particularly difficult, id. at 934; however,
“the police should be required to [demonstrate the existence of
reasonable suspicion] whenever the reasonableness of a no-knock
entry is challenged.” Id. at 934-35.
-8-
On appeal, Brown does not contest the substance of the
evidence relied upon by the district court. Nor does he
seriously dispute any of the factual evidence introduced by the
government. Instead, Brown renews his argument that, under the
circumstances of this case, the evidence relied upon by the
district court is inadequate under the reasonable-suspicion
standard to establish the existence of circumstances justifying
a no-knock entry. The determination of whether a given set of
facts constitute exigent circumstances justifying deviation from
the knock-and-announce principle is reviewed de novo. United
States v. Collazo-Aponte, 216 F.3d 163, 185 (1st Cir. 2000),
vacated and remanded on other grounds, ---U.S.---, 2001 WL
530830; see also United States v. Cooper, 168 F.3d 336, 339 (8th
Cir. 1999). In conducting our de novo review, we assess the
entirety of the record below “in the light most favorable to the
trial court's ruling.” United States v. Tibolt, 72 F.3d 965, 969
(1st Cir. 1995).
A. Brown's Challenges to the District Court's Ruling
In questioning the sufficiency of the evidence
supporting the district court's ruling, Brown makes two distinct
arguments. First, he contends that the evidence that the
government introduced, and the district court relied upon, failed
to specifically establish the circumstances that existed at the
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time the officers entered Brown's apartment. Brown notes that
precedent requires the reasonableness of a particular entry to
“be evaluated as of the time [the police] entered . . .”
Richards, 520 U.S. at 395. Yet, Brown argues, both Reilly's
affidavit and testimony refer only to the circumstances as they
were thought to exist at the time of the warrant hearing. In
Brown's view, such evidence, by itself, cannot justify the
officers' no-knock entry.
As a general principle of law, Brown is wrong in
suggesting that information contained in a warrant application or
discussed at a warrant hearing cannot justify a later no-knock
entry. Established precedent allows state judicial officers to
issue no-knock warrants “where sufficient cause to do so can be
demonstrated ahead of time,” Richards, 520 U.S. at 396 n.7, and
allows the police, in most instances, to rely on such
authorization, once granted, see United States v. Hawkins, 139
F.3d 29, 32 (1st Cir. 1998) (applying the rule of reasonable
reliance announced in United States v. Leon, 468 U.S. 897 (1984),
to warrant provisions authorizing no-knock entry). At least
where a warrant is issued, then, no-knock entries may be made on
the basis of information presented at a warrant hearing without
running afoul of the requirements of the Fourth Amendment.
Furthermore, we think it clear that, in most cases, there would
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be no reason to distinguish between what officers knew (or
suspected) at the time of the warrant hearing and what they knew
(or suspected) when executing the warrant. Absent some
suggestion that the earlier-presented evidence was no longer
reliable by the time of the entry, we see no reason why officers
should be required to introduce affirmative evidence simply to
establish that they haven't changed their minds.2
There is, however, a narrower reading of Brown's
position, articulated more clearly at oral argument, which merits
examination. Under the somewhat unusual circumstances of this
case, it remains unresolved whether the judge ever did, in fact,
approve the officers' request for a no-knock warrant. While the
government argued in the district court that Reilly's version of
events supported an inference that the judge at least intended to
issue such a warrant, Brown argued in favor of a contrary
inference, and the district court specifically declined to decide
the issue. In effect, then, the court found that the officers
were justified in making a no-knock entry even if their request
for permission to do so had been refused.
2
If Brown genuinely believed that later evidence established
the absence of a need for no-knock entry, the obvious avenue for
investigating this possibility would have been through cross-
examination of Reilly at the suppression hearing. Brown's
counsel did not do so.
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In this context, we agree with Brown that the district
court's exclusive reliance on evidence presented at the warrant
hearing is problematic. Finding such evidence sufficient to
justify the officers' actions would require us to conclude that
the officers were free to second-guess a judicial refusal of
their request for a no-knock warrant, without having shown any
new information or other reason for doing so. Such a conclusion
strikes us as troubling, especially in light of the critical role
Fourth Amendment precedent has historically ascribed to state
judicial officers in preventing mistakes and misconduct. Cf.
Leon, 468 U.S. at 913-14 (noting that the warrant process
“provides the detached scrutiny of a neutral magistrate, which is
a more reliable safeguard against improper searches than the
hurried judgment of a law enforcement officer engaged in the
often competitive enterprise of ferreting out crime”) (internal
quotation marks omitted). In our view, it should be a rare case
in which an unannounced entry, made in the wake of an outright
refusal to give authorization for the same, could be justified on
the basis of the evidence already passed upon by the judicial
officer.
We are also not persuaded by the government's argument
that Richards supports the district court's conclusion. It is
true that Richards upheld an unannounced entry following the
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denial of a no-knock warrant request. See 520 U.S. at 395-96.
It is also true that Richards contains language discussing the
role of an officer's “independent judgment” in determining the
reasonableness of an unannounced entry. See id. at 396 n.7 (“[A]
magistrate's decision not to authorize a no-knock entry should
not be interpreted to remove the officers' authority to exercise
independent judgment concerning the wisdom of a no-knock entry at
the warrant is being executed.”). However, the facts of Richards
are readily distinguishable from those of this case. In
Richards, the officers' decision to make an unannounced search
was prompted by unforeseen circumstances encountered during
execution of the warrant. See id.3 The Court expressly
acknowledged this in explaining why the officers' actions were
justified:
At the time the officers obtained the
warrant, they did not have the evidence
sufficient, in the judgment of the
Magistrate, to justify a no-knock warrant.
Of course, the Magistrate could not have
anticipated in every particular the
3
The officers' efforts to gain entry into Richards's
apartment were based in part on a ruse involving an officer
dressed as a maintenance man. See id. at 388. This officer
succeeded in getting Richards to open the door, but Richards
observed the uniformed officers standing some distance away and
slammed the door shut again. Id. At that point the officers,
apparently recognizing that they had been discovered and
concerned that Richards might try to escape or destroy evidence,
commenced breaking the door down without prior announcement.
Id.
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circumstances that would confront the
officers when they arrived at Richard's
motel room. These actual circumstances . .
. justified the officers' ultimate decision
to enter without first announcing their
presence and authority.
Id. (emphasis added). Richards thus does not establish that the
police may second-guess a judge's refusal to issue a no-knock
warrant on the basis of the same circumstances considered by the
judge.
In any event, we need not decide whether or to what
extent the police may face a heightened burden in justifying an
unannounced entry made after an application for a no-knock
warrant has been denied. On the present record, we vacate the
district court's ruling for the second reason Brown offers: the
evidence introduced does not establish a danger to the officers
sufficient to justify unannounced entry under the officer-safety
exception. Although the hurdle imposed by the reasonable
suspicion standard is “not high,” Richards, 520 U.S. at 394, it
is nonetheless real, and the scant details set forth in Reilly's
affidavit and elicited by the government at the suppression
hearing are insufficient to clear it.
As the government largely concedes, the evidence of
dangerousness contained in the present record falls well short of
the proof we previously have found to be sufficient to justify
no-knock entry. Without apparent exception, our cases have
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involved not only evidence of the presence of weapons at the
dwelling to be searched, but also evidence supporting an
inference that the target of the search might actually use them.
See, e.g., Collazo-Aponte, 216 F.3d at 186 (upholding no-knock
entry on officer-safety rationale where record contained “ample
evidence that the officers knew [defendant] was a member of a
well-armed and extremely violent drug organization”); Hawkins,
139 F.3d at 32 (upholding no-knock search on officer-safety
rationale in light of defendant's “copious record of violent
convictions, coupled with the arresting police officer's personal
knowledge of a recent armed action by him, and the officer's
suspicion that [the defendant] was aware of the police interest
in him”); United States v. Jewell, 60 F.3d 20, 23-24 (1st Cir.
1995) (upholding no-knock search where officer had personal
knowledge of a pit bull dog in the apartment and of the
defendant's “extensive history of arrest and conviction for
violent crimes.”). Here, the information available to the police
conveyed little beyond the bare fact that “at least one weapon”
had been observed, and nothing whatsoever concerning Brown's
propensity to violence.4
4
In its brief, the government suggests that the district
court inferred that Brown might be motivated to use a weapon by
virtue of its conclusion that “knocking and announcing the
presence of the officers might very well have caused the
occupants to use the firearm in a manner that would have been
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In addition, the decisions of our sister circuits tend
to undercut the district court's conclusion. At least three
circuits have held that evidence tending to show no more than the
probable presence of a weapon in a dwelling, even a dwelling
associated with drug dealing, is categorically inadequate to
justify no-knock entry on officer-safety grounds. See United
States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996) (“The mere
statement that firearms are present, standing alone, is
insufficient [to justify no-knock entry]. The government must go
further and demonstrate that the presence of firearms raised a
concern for the officers' safety.”); United States v. Bates, 84
F.3d 790, 795 (6th Cir. 1996) (“Evidence that firearms are within
a residence, by itself, is not sufficient to create an exigency
to officers when executing a warrant.”); United States v. Marts,
986 F.2d 1216, 1218 (8th Cir. 1993) (“The reasonable belief that
firearms may have been within the residence, standing alone, is
clearly insufficient [to justify no-knock entry].”). And while
several courts have stated that they are more willing to infer
dangerousness where both drugs and weapons are involved, see,
e.g., United States v. Stowe, 100 F.3d 494, 499 (7th Cir. 1996)
dangerous to the officers.” However, this general statement is
based on nothing in the record beyond the three previously
recited allegations, and we decline to accord it significant
weight.
-16-
(“While the presence of a gun alone is not necessarily enough [to
justify no-knock entry], drug dealing is a crime infused with
violence . . . . Guns and drugs together distinguish the millions
of homes where guns are present from those housing potentially
dangerous drug dealers . . . .”) (emphasis in original) (internal
citations omitted), they have done so in factual circumstances
that are, albeit to varying degrees, perceptibly more threatening
than those described in the record before us. See, e.g., id.
(upholding search made pursuant to a no-knock warrant, where
informant had confirmed the presence of loaded weapons in the
apartment mere hours earlier, and apartment had a steel door that
could make entry difficult); United States v. Gambrell, 178 F.3d
927, 929 (7th Cir.), cert. denied, 528 U.S. 920 (1999) (upholding
search made pursuant to a no-knock warrant where informant had
stated that residents carried loaded weapons on their persons
while in the apartment and when answering the door); United
States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994) (upholding
entry despite lack of pause between announcement and forcible
entry where police knew defendant was participating in an
extensive cocaine conspiracy involving dealers with prior weapons
-17-
convictions and where at least one member of the conspiracy had
previously threatened an officer).5
Finally, we are concerned that finding adequate the
slight, generalized evidence of dangerousness in this record
would come close to creating an impermissible blanket exception
to the knock-and-announce principle in a large subgroup of cases.
As the Supreme Court acknowledged in Richards, the possibility or
even probability that weapons will be present in a dwelling to be
searched exists in many investigations involving crimes of
violence. See 520 U.S. at 393-94. Yet, even in those cases, the
decision to make a no-knock entry must be based upon a case-by-
case determination that the circumstances of the particular entry
present a “threat of physical violence.” Id. at 391; see also
id. at 393 (overturning decision of Wisconsin Supreme Court
holding a no-knock entry to be justified in all cases where a
warrant authorizes the search of a dwelling involved in the drug
trade).
5
We acknowledge that the Fourth Circuit's decision in United
States v. Lalor, 996 F.2d 1578 (4th Cir. 1993), is a case with
facts somewhat like those here, see id. at 1584-85 (upholding
no-knock search where weapon had been found during arrest of
same defendant which took place five days earlier and defendant
had made “derogatory remarks about the police”). But that
decision appears to rest in part on the mistaken application of
clear-error review to the district court's finding that exigent
circumstances had been demonstrated. See id. In any event,
Lalor does not shake our belief that vacatur is warranted here.
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In view of the foregoing, we need not and do not decide
whether, under another set of circumstances or on a fuller
record, the presence of one or more weapons at a dwelling where
drug dealing is suspected might be adequate to justify a no-knock
entry. We simply hold that, in light of the limited testimony
and other evidence introduced by the government, the existence of
a danger to officers justifying no-knock entry was not
demonstrated here.
B. Alternative Grounds for Affirmance
In the parties' briefs and at oral argument, several
alternative grounds for upholding the district court's ruling
were discussed. See United States v. Garcia, 983 F.2d 1160, 1167
(1st Cir. 1993) (noting that this court “will uphold [a district
court's] denial of [a] motion to suppress if any reasonable view
of the evidence supports it”). Although none of them is wholly
implausible, we conclude that none has adequate support in the
present record.
The first such argument is that the officers' no-knock
entry, if not justified by the officer-safety rationale, was
nonetheless permissible to prevent the destruction of evidence.
The government notes that the drug in question -- cocaine -- is
one that this Court has found to be “quickly and easily
destroyed,” Garcia, 983 F.2d at 1168, and contends that this
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fact, coupled with evidence suggesting that the drugs were in the
residence and thus accessible to Brown, was sufficient to give
the police “reasonable suspicion that knocking and announcing
their presence . . . would inhibit the effective investigation of
the crime by . . . allowing the destruction of evidence.”
Richards, 520 U.S. at 394.
We think this alternative “exigent circumstances”
argument ultimately fails for the same reasons as the district
court's rationale. Approving the officers' actions on this basis
would require a significant extension of this circuit's Fourth
Amendment precedent. Although we have previously acknowledged
the readily disposable nature of cocaine, we have thus far found
this fact only to mitigate the length of time officers must wait
between announcement and entry, not to justify dispensing with
announcement altogether. Garcia, 983 F.2d at 1168 (upholding
district court's conclusion that ten- to fifteen-second wait
between announcement and entry complied with knock-and-announce
rule in context of a drug raid involving cocaine); United States
v. One Parcel of Real Property, 873 F.2d 7, 9 (1st Cir. 1989)
(same). Nor has the government identified any precedent from
other courts justifying no-knock entry on similar facts. To the
contrary, at least one court has concluded that where, as here,
large amounts of cocaine are thought to be present, the
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destruction-of-evidence rationale is not persuasive. See Bates,
84 F.3d at 796 (affirming district court ruling that destruction
of evidence rationale was not plausible where police believed
that fifteen pounds of cocaine were present and agreeing that it
was “unreasonable to think that fifteen kilograms of powder
cocaine could be quickly disposed of by flushing it down the
toilet or dumping it down the sink drain”).
The government also contends that the no-knock entry
can be justified on the Leon principle of reasonable reliance.
See 468 U.S. at 922 (holding suppression not required for
“evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant”); see also Hawkins, 139
F.3d at 32 (applying Leon in no-knock context). Two distinct
rationales are offered for how Leon should apply in this case.
First, the government argues that the record mandates the
inference that the state judge actually did authorize a no-knock
search, notwithstanding the lack of a notation to that effect on
the face of the warrant, and that the officers acted in reliance
on that authorization when they entered Brown's apartment.
Because of this, in the government's view, Leon requires that we
uphold the search, even if doubtful, as long as we do not find
that the officers' reliance was unreasonable. See 468 U.S. at
922-923. In support of its position, the government cites United
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States v. Mattison, 153 F.3d 406, 410 (7th Cir. 1998), which
upheld a no-knock search conducted pursuant to a facially
deficient warrant on essentially this theory.6
The inference the government asks us to draw is
plausible, but we do not think it is inescapable. Although the
record suggests that Reilly personally believed the search was
authorized, there is little indication of what the judge said or
did that led Reilly to believe this. And, as previously noted,
Brown has argued that the objective facts in the record could be
read to yield the opposite inference. Our caution is further
amplified in this case by the fact that the district court --
which sat in a far better position than we to form an opinion as
to the credibility and meaning of Reilly's testimony -- expressly
declined to make this determination. These circumstances stand
in contrast to those in Mattison. In that case, the government
introduced testimony from several witnesses establishing that, in
the county where the warrant was obtained, it was “common
procedure” for judges to authorize no-knock entry without making
an express notation on the face of the warrant. Mattison, 153
6
Also relevant, in our view, is Massachusetts v. Sheppard,
468 U.S. 981 (1984), in which the Supreme Court held that a
state judge's “fail[ure] to make all the necessary clerical
corrections” to a warrant, thereby rendering it invalid, did not
prevent officers from relying on the warrant in conducting a
search. Id. at 990-91.
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F.3d at 409, 410. On the basis of this evidence, the information
contained in the warrant application, and testimony from an
officer confirming that the police believed the authorization had
been given, the district court expressly found that a no-knock
warrant was, in fact, issued.7 Id. at 410. In the absence of a
similarly clear record, or comparable on-point findings by the
district court, we are not convinced that the same result should
obtain in this case.
Furthermore, we note that the absence of clear evidence
or relevant findings regarding the state judge's actions prevents
us from evaluating, as we must under Leon, whether the officers'
reliance on the purported authorization was objectively
reasonable. See 468 U.S. at 919 n.20. As Leon explains,
objective reasonableness does not “turn on the subjective good
faith of individual officers.”8 Id. Instead, it requires a
showing of “objective good faith,” determined by considering
7The facts of this case also distinguish it from Sheppard,
where the record included a detailed recitation of the
interchange between the judge and the police, and where the
trial court had found that the judge stated an intention to
issue the warrant and expressly informed the police that he had
made the necessary “clerical corrections.” See 468 U.S. at 986-
87 & n.3, 989-90.
8
For this reason, the government is incorrect that this
question is resolved by the district court's conclusory
statement that it “appeared” that Officer Reilly's belief that
he had authorization was in good faith.
-23-
whether the officer acted “as a reasonable officer would and
should act in similar circumstances.” Id. at 920 (quoting Stone
v. Powell, 428 U.S. 465, 539-540 (1976) (White, J., dissenting)).
Because the district court chose to bypass the government's Leon
argument, it made no findings on this issue, and we decline to do
so in the first instance.
The government's brief also suggests a second way in
which Leon might apply to this case. According to this
alternative argument, the officers must be given the benefit of
Leon, even if we cannot find that the search was actually
authorized, because the record demonstrates that the officers
believed, in good faith, that authorization had been given.
While we think it unclear whether Leon would apply under the
circumstances the government describes,9 we need not decide that
issue here. Even if good-faith belief could bring the officers'
conduct within the scope of Leon, the present record provides an
inadequate basis for evaluating the objective reasonableness of
the officers' reliance, precluding affirmance on this ground.
III.
9
By its terms, Leon provides the safe harbor of reasonable
reliance only where authorization has been given but is later
determined to have been given in error. See 468 U.S. at 919-
920. It would therefore plainly extend the law to provide
similar protection to police actions undertaken in the mistaken,
although reasonable, belief that a particular entry was
authorized.
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Because the record as it currently stands is
insufficient to sustain the district court's ruling, we vacate
the ruling and remand for further proceedings consistent with
this opinion. On remand, we direct the district court to address
the government's argument that the officers' actions were
justified under Leon because the state judge authorized the no-
knock entry and the officers reasonably relied on that
authorization.10 We note but do not rule on the government's
request for permission to argue on remand that, even if a knock-
and-announce violation occurred, the discovery of the seized
evidence was inevitable under the rule of Nix v. Williams, 467
U.S. 431, 440-448 (1984). In the absence of any briefing from
Brown on this question, we think it appropriate to leave to the
district court the determination of whether this issue may be
raised for the first time following remand.
It is so ordered.
10
While we think it probable that the district court will be
able to resolve this issue on the basis of the existing record,
we do not now decide whether the record may be reopened on
remand. We consider the question of whether to reopen the
record to lie within the trial court's discretion, and are
particularly reluctant to resolve it without the benefit of
briefing from the parties. We note, however, that other courts
to consider the issue have held that such reopenings should be
allowed only sparingly, and upon an adequate justification by
the party so moving for its failure to introduce the new
evidence at the initial hearing. See, e.g., United States v.
Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000); United States v.
Blankenship, 775 F.2d 735, 740 (6th Cir. 1985).
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