United States v. Brown

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

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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.”

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 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.

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 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.

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(“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.

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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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