United States v. Brown

United States Court of Appeals
For the First Circuit
______________________

No. 99-2120

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN D. BROWN,

Defendant, Appellant.
_____________________

Before

Boudin, Chief Judge,
Torruella and Selya, Circuit Judges,
Stahl, Senior Circuit Judge,
Lynch and Lipez, Circuit Judges.
_____________________

ORDER OF COURT

Entered: January 4, 2002

The en banc court being equally divided, the judgment of the

district court is affirmed. Separate statements of Judges

Stahl, Torruella and Lipez are attached.

By the Court:

Richard Cushing Donovan, Clerk

By: Julie Gregg, Appeals Attorney
 STAHL, Senior Circuit Judge. I write because the

affirmance of the district court's decision by this equally

divided en banc court marks the first time that a court of

appeals has let stand a district court ruling that the presence

of a large quantity of drugs and a weapon seen at some earlier

but unspecified time standing alone satisfies the "reasonable

suspicion" standard set out by the Supreme Court in Richards v.

Wisconsin, 520 U.S. 385, 394 (1997), regarding when the police

may dispense with their obligation to "knock and announce"

before executing a warrant.

In the affidavit supporting their March 17, 1998

warrant application, the police informed the magistrate judge

that earlier that month, a reliable confidential informant told

them that he had been in the defendant's home (at some

indeterminate time in the past) and had observed "large amounts

of cocaine as well as at least one firearm." Later, the

affidavit stated that "sometime during the past five days," the

informant had been in the apartment and "had observed a large

amount of cocaine within the residence." Apparently, the

informant made no mention of a weapon and seemingly the police

did not inquire whether any weapons were present in the

apartment on that occasion. The affidavit also mentioned a

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prior drug arrest of the defendant in Connecticut, although the

date and circumstances of the arrest were not included. The

police affidavit indicated that a no-knock warrant was being

sought; however, the original complaint did not specifically

include any "no-knock" language. The magistrate judge directed

the officer to make a hand-written notation clarifying that the

police were applying for a no-knock warrant. Despite these

changes to the complaint, however, nowhere on the face of the

warrant does it indicate that the magistrate judge granted the

no-knock request. The police have acknowledged that there was

no change in circumstances between the time that they obtained

the warrant and the date of its execution. Nonetheless, the

police maintain that, based on these facts, they were entitled

to make a no-knock entry even without the magistrate's approval.

In Richards, the Supreme Court made clear that the

determination of whether there is a "reasonable suspicion" of

the existence of "exigent circumstances," such as the

destruction of evidence or dangerousness to the police, in order

to justify a no-knock entry must be based on an examination of

the "particular circumstances" of the case. 520 U.S. at 394.

The pronouncement of any per se rule would be antithetical to

the Supreme Court's instruction that lower courts conduct a

fact-specific inquiry. However, based on the information that

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was presented to the lower court in this case, which all parties

concede was "scant," the district court simply could not have

determined that there was reasonable suspicion that this

defendant presented a risk of danger to the police without

deciding that drugs plus a gun amounts to per se "reasonable

suspicion." No other circuit has announced such a blanket rule,

and in the cases where reasonable suspicion was found, those

courts were presented with specific information regarding that

individual defendant's violent criminal history, belligerent

disposition, or other factors indicating the likelihood that the

defendant would pose a threat to the safety of the police.1 The

1 See United States v. Geraldo, No. 00-3115, 2001 WL 1488587,
at *5 (D.C. Cir. Nov. 27, 2001) (noting that the apartment where
arrest was to be executed had been robbed months earlier, and
that one of the residents "had been seen wearing a revolver,
allegedly to protect the residence from additional robberies .
. . and therefore might be quick to use it"); United States v.
Cantu, 230 F.3d 148, 153 (5th Cir. 2000) (finding no-knock entry
unreasonable where police had no prior knowledge that defendant
or any other occupants of his residence "were armed or posed
immediate danger" and noting that the Supreme Court had
"rejected blanket rules allowing 'no-knock' entries based on
overgeneralizations about today's drug culture or other 'general
categories of criminal behavior'") (quoting Richards, 520 U.S.
at 394); United States v. Tavares, 223 F.3d 911, 917 (8th Cir.
2000) (rejecting officer safety rationale for no-knock entry
where there was no information that the defendant "was known to
use weapons, that he was armed or carried a weapon, or that he
had a history of violence toward law enforcement officers");
United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000)
(approving no-knock entry where defendant was sought in another
jurisdiction for numerous violent offenses and where co-
defendant's outburst upon being apprehended could have notified
defendant of police presence and given him the opportunity to

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decision rendered by the district court in this case also

arm himself); United States v. Gambrell, 178 F.3d 927, 929
(7th Cir. 1999) (determining that no-knock entry was justified
where there was specific evidence that there were guns "strapped
to and instantly accessible by the people inside" the
apartment); United States v. Cooper, 168 F.3d 336, 338 (8th Cir.
1999) (ratifying no-knock entry of house that was barricaded
and where the defendant had a violent criminal history); United
States v. Mattson, 153 F.3d 406, 411 (7th Cir. 1998) (approving
no-knock entry where police had information that the defendant
"had stated he was in possession of a weapon and threatened to
kill anyone who interfered with his drug sales," and that some
of the residents of the house were "armed and had a history of
violence"); United States v. Bates, 84 F.3d 790, 796 (6th Cir.
1996) (refusing to ratify no-knock entry where, despite
information that a gun was in the apartment, there was no
indication that "the Defendants were violent and likely to use
a weapon if confronted by law enforcement officers" and in the
absence of any evidence that the Defendants "had a criminal
history of violence or a reputation indicating they were likely
to be violent"); United States v. Stowe, 100 F.3d 494, 499 (7th
Cir. 1996) (finding no-knock entry justified in light of
evidence that the defendant was a convicted felon operating
under an alias, that his apartment was protected by a steel
door, that a large amount of crack cocaine and at least one
loaded handgun was in the apartment and that the foregoing
information had been received by the police only a few hours
before executing the warrant); United States v. Brown, 52 F.3d
415, 421 (2d Cir. 1995) (finding reasonable suspicion where
defendant had been charged with a crime of a serious and violent
nature and had previously attempted to collect a drug-related
debt with a pump-action shotgun); United States v. Kennedy, 32
F.3d 876, 883 (4th Cir. 1994) (noting that the officers had
"particular reasons" to be concerned for their safety, including
the fact that one of the defendants, during a previous
automobile stop, had told the officer that "if he was arrested
for 'something big' in the future, it would be for 'killing a
cop'"); United States v. Lalor, 996 F.2d 1578, 1584-85 (4th
Cir. 1993) (finding no-knock entry was permissible on the basis
of officer safety concerns where police had found a weapon on
defendant at the time of his arrest on an unrelated charge five
days earlier and in light of the fact that the defendant had
been "belligerent" and had made "derogatory remarks about the
police" during an encounter with officers earlier that same
month).

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deviates from well-established First Circuit precedent requiring

that no-knock entries be supported by the particular

circumstance of a specific case.2

All of the judges who originally heard this case agree

that the panel's decision should have been reinstated, and that

this matter should have been remanded to the district court for

the development of a more adequate factual record. The

significance of this decision letting the ruling of the district

court stand cannot be ignored, and its capacity to undermine the

protections of the Fourth Amendment should not be

underestimated.

2
See, e.g., United States v. Hawkins, 139 F.3d 29, 32 (1st
Cir. 1998) (noting defendant's "copious record of violent
convictions, coupled with the attesting police officer's
personal knowledge of a recent armed action by him"); United
States v. Jewell, 60 F.3d 20, 24 (1st Cir. 1995) (finding no-
knock entry justified where defendant kept a pit bull dog in the
apartment, and had an "extensive history of arrest and
conviction for violent crimes").

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 TORRUELLA, Circuit Judge. I write separately to

explain my vote to reverse the district court's ruling, and to

voice my criticism of the existing "knock and announce"

jurisprudence.

We are required to review the factual record of this

case in light of the Supreme Court's decision in Richards v.

Wisconsin, 520 U.S. 385 (1997), and our own circuit caselaw on

this issue. Both Supreme Court and First Circuit precedent

clearly requires something more compelling than the existence

of drugs and a weapon to satisfy the "reasonable suspicion"

standard before the police can dispense with the obligation to

"knock and announce" when executing a warrant. See supra

(Stahl, J.). My vote, then, is dictated by the clearly

established precedent to which I am bound.

Nevertheless, I write to express my criticism for the

precedent I uphold. Everyday experience demonstrates that the

presence of weapons and drugs for sale in the same locale

creates a high probability that violence will ensue. Given this

heightened danger, it is unreasonable for courts to expose law

enforcement officials to an even greater risk of harm by

requiring them to announce their presence to their would-be

attackers.

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 It is thus entirely reasonable to presume a high risk

of violence in a situation such as this and unreasonable to

endanger the police even further by requiring them to "knock and

announce."

Because the ultimate standard under the Fourth Amendment is

reasonableness, see Camara v. Mun. Court of San Francisco, 387

U.S. 523, 539 (1967), I would endorse a per se rule supporting

no-knock police entries in circumstances where the police --

acting on reliable information -- reasonably believe that

weapons and drugs are present at the place to be searched.3

The state of the law being otherwise, however, I am

compelled to vote to reverse the district court's ruling on the

grounds that the "reasonable suspicion" standard has not been

satisfied.

3This position assumes, of course, that all other Fourth
Amendment requirements have been satisfied.

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 LIPEZ, Circuit Judge. As a member of the panel

that originally heard this case, I write separately to explain

why I still cannot vote to affirm the decision of the trial

court and why I believe that the panel correctly remanded this

case to the trial court for further consideration. In my view,

the trial court made two errors: (1) its finding that the

evidence before the magistrate judge supported a reasonable

suspicion of dangerousness to the police, justifying a no-knock

entry; and (2) its failure to resolve the important factual

question of whether or not the magistrate judge had authorized

a no-knock warrant.

Reasonable Suspicion of Dangerousness

I accept the proposition that the presence of drugs and

a gun in an apartment where drug dealing is suspected justifies

the reasonable suspicion, without more, that a "knock and

announce" entry would endanger the police. In my view, to

obtain authorization for a no-knock entry, the police need not

show that the defendant presented a risk of danger to the police

because of facts peculiar to that defendant, such as a violent

criminal history, recent threats or other history that would

strengthen the suspicion of the defendant’s propensity to use

the gun. Any such requirement would ignore the reality that the

presence of a gun at a site where drugs are sold signals the

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possibility of danger and would expose police officers to

unreasonable risks. Indeed, I believe that the Supreme Court,

applying Richards v. Wisconsin, 520 U.S. 385 (1997), would

agree.

However, these unreasonable risks support a no-knock

entry when there is a reasonable suspicion of the presence of a

gun at the time of the entry. In this case, the evidence of the

presence of a gun was so stale and so scant that it did not

justify a reasonable suspicion that a gun would be present when

the officers entered the apartment. United States v. Schaefer,

87 F.3d 562, 568 (1st Cir. 1996) (acknowledging that "an

affidavit supporting a search warrant must contain timely

information or else it will fail"); United States v. Dauphinee,

538 F.2d 1, 5 (1st Cir. 1976) ("It is well established that the

temporal proximity or remoteness of the events observed has a

bearing on the validity of a warrant."); Rosencranz v. United

States, 356 F.2d 310, 315-16 n.3 (1st Cir. 1966)(same).

According to the affidavit supporting the warrant

application, the police's confidential source indicated that he

had been in the apartment in question and had observed "large

amounts of cocaine as well as at least one firearm." There is

no evidence as to when this sighting occurred. In addition, the

affidavit revealed that on another occasion the informant had

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seen a large amount of cocaine in defendant's apartment five

days prior to the warrant application; however, nothing in the

affidavit indicated the presence of a firearm in the apartment

on that occasion. Without suggesting that five days is the

controlling standard of recentness, if the affidavit in this

case had disclosed reliable information as to the presence of

both the gun and drugs within five days of the request for a

warrant, that evidence would have been sufficient to meet the

reasonable suspicion standard. That, however, is not the record

before us. For that reason, I disagree with the outcome reached

by the trial court.

Approval or Disapproval of a No-Knock Warrant

In addition, the government argued to the panel that

they should have an opportunity upon remand to invoke the Leon

good faith exception in the event of a finding that the

magistrate judge had wrongly granted a no knock warrant upon

which they reasonably relied. See United States v. Leon, 468

U.S. 897, 922 (1984) (holding that "evidence obtained in

objectively reasonable reliance on a subsequently invalidated

search warrant" need not be suppressed). The panel agreed that

the government should have that opportunity, believing that it

should not be disadvantaged because the trial court failed to

address that important issue. Of course, the trial court could

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find that the magistrate judge refused to authorize a no-knock

entry. If so, the officers would not have been justified in

disregarding that decision of the magistrate judge in carrying

out a no-knock entry. As Judge Stahl has noted, the police

acknowledge that there was no change in circumstances between

the time the magistrate judge issued the warrant and the date of

its execution that would have justified disregarding a denial of

their request for a no-knock warrant. Cf. Richards, 520 U.S. at

395-96 n.7 (holding that magistrate's decision not to authorize

a no-knock entry did not preclude no-knock entry where

circumstances that confronted officers at the time of entry

justified their ultimate decision to enter unannounced). See

United States v. Sargent, 150 F.Supp.2d 157, 161 (D.Me. 2001)

(recognizing that courts tend to excuse police's failure to

properly announce their presence (notwithstanding denial of no-

knock warrant) where "new critical events" transpired between

time that warrant issued and time that police enter premises).

The record as it stands leaves open the possibility that the

police acted contrary to a judicial order through the no-knock

entry. That troubling prospect also precludes me from affirming

the district court's decision and supports the wisdom of a

remand.

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