United States v. Ankeny

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30457
Plaintiff-Appellee, D.C. No.
v. CR-04-00005-
KELLY DAVID ANKENY, SR.,  MWM
Defendant-Appellant. ORDER AND
AMENDED
 OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued July 27, 2006;
Resubmitted June 5, 2007
Portland, Oregon

Filed June 19, 2007
Amended September 5, 2007

Before: Stephen Reinhardt, A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.

Opinion by Judge Graber;
Dissent by Judge Reinhardt

11463
11466 UNITED STATES v. ANKENY

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, for the defendant-appellant.

Richard A. Friedman, Appellate Section, Criminal Division,
United States Department of Justice, Washington, D.C., for
the plaintiff-appellee.
 UNITED STATES v. ANKENY 11467
ORDER

The government’s request for clarification is GRANTED.
The opinion filed on June 19, 2007, is amended as follows:

On slip opinion page 7239 (490 F.3d 744, 756), replace the
last sentence of footnote 7 with:

We need not decide whether the amendment applies
retroactively, though, because the government—
despite later assertions to the contrary—never argued
in briefing or oral argument that the amendment
should apply retroactively. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, argu-
ments not raised by a party in its opening brief are
deemed waived.”).

Judges Tashima and Graber have voted to deny the petition
for panel rehearing, and Judge Reinhardt has voted to grant it.
Judge Graber has voted to deny the petition for rehearing en
banc, and Judge Tashima has so recommended. Judge Rein-
hardt has voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.

The petition for panel rehearing and petition for rehearing
en banc are DENIED.

No further petitions for rehearing or rehearing en banc may
be filed.

OPINION

GRABER, Circuit Judge:

Defendant Kelly David Ankeny, Sr., was indicted on four
counts of being a felon in possession of a firearm and one
11468 UNITED STATES v. ANKENY
count of possession of an unregistered sawed-off shotgun.
The district court denied his motion to suppress and, reserving
the right to appeal that decision, Defendant pleaded guilty.
The district court sentenced him to 262 months’ imprisonment
pursuant to the Armed Career Criminal Act of 1984
(“ACCA”) and the Career Offender provision of the United
States Sentencing Guidelines (“U.S.S.G.”).

On appeal, Defendant argues that: (1) the evidence seized
during the search of his residence should have been sup-
pressed; (2) the district court should have dismissed all but
one count of felon in possession; (3) the government should
have been required to allege Defendant’s prior convictions in
the indictment and prove them to a jury beyond a reasonable
doubt; (4) his prior convictions do not qualify as predicate fel-
onies under ACCA; and (5) the district court erred in applying
the Career Offender guideline.

We hold that the motion to suppress was properly denied,
but that the convictions were multiplicitous and that material
errors were made at sentencing. Thus, we affirm the convic-
tions but vacate the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

On October 21, 2003, Michele Rayley reported to the Port-
land police that Defendant, with whom she has an 18-year-old
son, had choked and kicked her. The altercation with Defen-
dant took place when Rayley went to the house where their
son was living, located at 936 N.E. 94th Avenue in Portland,
and found that Defendant was living there. She confronted
Defendant about her belief that he was supplying drugs to
their son, at which point Defendant became angry and
attacked her. He then ran to another floor of the house and
returned waving a semi-automatic handgun. Rayley told
police that she believed Defendant was using methamphet-
amines and that he might flee or shoot at police.
 UNITED STATES v. ANKENY 11469
The case was referred to Officer Rhodes of the Domestic
Violence Reduction Unit. In ongoing conversations, Rayley
reported to Rhodes that several other people, including an
infant and a prison associate of Defendant, also were living in
the house. Rayley told Rhodes that, on October 31, 2003, she
and Defendant had another argument during which he dis-
played a handgun.

Officer Rhodes conducted a background check on Defen-
dant and found that he had several outstanding arrest warrants
and an extensive criminal history, including convictions for
possession and delivery or manufacture of controlled sub-
stances, attempting to elude a police officer, escape, felon in
possession of a firearm, and robbery. He also had been
charged with, but not convicted of, assault on a police officer
and aggravated assault.

The police considered various options for how to proceed,
including arresting Defendant during a traffic stop, and ulti-
mately decided that it was necessary to arrest Defendant at the
house. The police believed that a street arrest would pose a
risk to public safety because Defendant had a lengthy record
of violence and hostility toward the police. Further, the police
believed that an arrest outside the house would be risky
because there was evidence of drug and firearm activity inside
the house, in addition to the presence of a prison associate of
Defendant.

A warrant was authorized on November 18, 2003, and exe-
cuted on November 20, 2003, at around 5:30 a.m. The house
was dark, and there was no noise or movement from within.
The Special Emergency Reaction Team (“SERT”) led the
operation. Thirteen officers were assigned to enter the home
and, in total, 44 officers participated in the execution of the
warrant.

Officer Stradley yelled “police, search warrant” while
pounding on the door and, about one second later, officers
11470 UNITED STATES v. ANKENY
used a battering ram to break open the door. Officer Wilcox
entered and directed a light-mounted weapon into the house.
Defendant had been sleeping on a recliner near the front door;
he stood up as the officers broke down the door. Officer Wil-
cox instructed Defendant to show his hands and get down.
Officer Forsyth then threw a flash-bang device into the center
of the room. Officer Forsyth testified at the suppression hear-
ing that he heard Officer Wilcox tell Defendant to show his
hands; he did not recall hearing him tell Defendant to get
down. The flash-bang device had a fuse delay of one to one-
and-a-half seconds. Officer Forsyth stated that Defendant
went down to the floor during that delay, and the device
exploded near his upper body. Because of his proximity to the
flash-bang device when it exploded, Defendant suffered first-
and second-degree burns to his face and chest and second-
degree burns to his upper arms.

Meanwhile, officers stationed outside the house shot out
the second-story windows with rubber bullets. Officers secur-
ing the second level of the house threw a second flash-bang
device into an open area. A man and a woman were lying in
bed in that area, and the explosion caused the bed to catch
fire. After attempting to extinguish the fire, officers threw the
mattress and box spring out of a window.

Extensive damage was done to the house during the entry.
The police shot out approximately ten windows, kicked in
many doors, burned carpet, and made holes in the walls and
ceilings with the rubber bullets.1

Thereafter, the police recovered a 9mm semiautomatic
handgun from the crack between the arm and the bottom
cushion of the chair in which Defendant was sitting when the
1
The owner of the house estimated that the damage cost him $14,000
to repair. He filed a claim against the City of Portland for the loss,
received $10,000, and decided, after consulting a lawyer, not to pursue a
civil suit for the remainder.
 UNITED STATES v. ANKENY 11471
police entered the house. They also recovered a semiauto-
matic handgun on an adjacent chair. The police found a 12-
gauge sawed-off shotgun and a .22-caliber long rifle in a
closet in an upstairs bedroom and another .22-caliber rifle in
the basement of the house. The police seized approximately
$3,000, ammunition, and suspected drugs and drug parapher-
nalia.

Defendant was indicted on four counts of being a felon in
possession of a firearm and one count of possession of an
unregistered sawed-off shotgun. Soon thereafter, the govern-
ment filed notice of its intent to seek a sentence enhancement
under the ACCA and identified three predicate felonies.
Defendant moved to suppress the evidence seized during the
search. After an evidentiary hearing, briefing, and argument,
the district court denied the motion. Defendant entered a con-
ditional guilty plea, reserving the right to appeal the denial of
his motion to suppress.

The Presentence Investigation Report (“PSR”) specified a
base offense level of 37, which included application of the
Career Offender guideline. After a three-level downward
adjustment for acceptance of responsibility, Defendant’s total
offense level was 34 with a criminal history category of VI,
resulting in an advisory Sentencing Guidelines range of 262
to 327 months.

Defendant filed a motion to dismiss as multiplicitous all but
one count of his being a felon in possession of a firearm. He
also filed objections to the application of the ACCA and the
Career Offender guideline. He argued both that his prior con-
victions were not predicate felonies under ACCA and that
prior convictions must be alleged in the indictment and
proved to a jury in order to comport with the Sixth Amend-
ment. The district court rejected all of Defendant’s arguments.
The court considered various sentencing factors and acknowl-
edged that the Guidelines were advisory, but declined to go
below the Guideline range because of the seriousness of the
11472 UNITED STATES v. ANKENY
offense and Defendant’s extensive criminal record. The court
sentenced Defendant to 262 months’ imprisonment for each
count of being a felon in possession of a firearm and 120
months’ imprisonment for the count of possession of an
unregistered sawed-off shotgun, with the sentences to run
concurrently. Defendant timely appealed.

DISCUSSION

A. Motion to Suppress

We first address Defendant’s contention that the evidence
found in the house should have been suppressed because the
police failed to knock and announce their presence, a failure
not justified by exigency, and because the extent of force used
by the police rendered the search unreasonable.

In a published opinion, the district court found that the
amount of time between the knock and the entry was “so brief
in time to be virtually the equivalent to a no-knock entry,” but
held that there were exigent circumstances justifying the
police action. United States v. Ankeny, 358 F. Supp. 2d 998,
1000-01 (D. Or. 2005). The district court declined to decide
whether the overall manner of execution of the warrant was
unreasonable because the “inevitable discovery” doctrine
applied:2 the police had a warrant, and “[a]ny excess force
used does not change” the fact that they would have discov-
ered the evidence in the house. Id. Thus, the court held that,
“for general objections to the manner of executing a search,
2
In this circuit, the “inevitable discovery” doctrine, first recognized in
Nix v. Williams, 467 U.S. 431 (1984), provides that if, “by following rou-
tine procedures, the police would inevitably have uncovered the evi-
dence,” then the evidence will not be suppressed despite a constitutional
violation. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th
Cir. 1989). That concept is closely related to the “independent source”
doctrine, which provides that evidence discovered by independent legal
means should not be suppressed even though there was an illegal search
as well. Id. at 1396.
 UNITED STATES v. ANKENY 11473
suppression requires a causal link between those complained-
of behaviors and the seizure of the evidence,” and there was
no such causal link here. Id. at 1002.

On de novo review, United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004) (en banc), we agree with the dis-
trict court: even if the knock-and-announce violation and the
other aspects of the search amounted to Fourth Amendment
violations, suppression is not warranted.

1. Knock and Announce

Turning first to the alleged knock-and-announce violation,
see Wilson v. Arkansas, 514 U.S. 927, 930 (1995) (“[The]
common-law knock and announce principle forms a part of
the reasonableness inquiry under the Fourth Amendment.”),
we hold that suppression is foreclosed by the Supreme
Court’s decision in Hudson v. Michigan, 126 S. Ct. 2159
(2006).

[1] In Hudson, police entered a suspect’s home, with a war-
rant, after announcing their presence and waiting three to five
seconds. The state conceded that there was a knock-and-
announce violation. The Court held that violation of the
knock-and-announce rule did not merit suppression of evi-
dence found in the search, because the purposes of the knock-
and-announce rule—to protect bodily safety, property, and
privacy—are not vindicated by excluding evidence obtained
after the rule has been violated. Id. at 2165. The Court empha-
sized that the knock-and-announce rule does not protect
“one’s interest in preventing the government from seeing or
taking evidence described in a warrant” and that the social
costs of exclusion for knock-and-announce violations out-
weigh the benefits of deterrence. Id. at 2165-66. Thus, we
need not resolve whether the knock-and-announce rule was
violated and, if so, whether the violation was justified by exi-
gent circumstances. Under Hudson, the evidence should not
be suppressed in any event.
11474 UNITED STATES v. ANKENY
[2] Defendant asserted at oral argument that this case is not
governed by Hudson, because the police could have obtained
a no-knock warrant but failed to do so.3 According to Defen-
dant, that failure rendered the entry “essentially warrantless.”
We disagree. There is no requirement that the police obtain a
no-knock warrant simply because one is available. See Rich-
ards v. Wisconsin, 520 U.S. 385, 396 n.7 (1997) (commenting
that the fact that a no-knock entry has not been authorized in
advance “should not be interpreted to remove the officers’
authority to exercise independent judgment concerning the
wisdom of a no-knock entry at the time the warrant is being
executed”). Further, we decline to limit Hudson so narrowly
to its facts. The Supreme Court made it clear that, because the
knock-and-announce rule protects interests that “have nothing
to do with the seizure of . . . evidence, the exclusionary rule
is inapplicable” to knock-and-announce violations. Hudson,
126 S. Ct. at 2165.

2. Manner of Entry

Defendant contends that, beyond the alleged knock-and-
announce violation, the police’s manner of entry violated the
Fourth Amendment. He urges us to hold that the overall vio-
lence and destructiveness of the officers’ actions were unrea-
sonable and, thus, that suppression is warranted.
3
Defendant also asserted at oral argument that this case is different from
Hudson because the federal knock-and-announce statute, 18 U.S.C.
§ 3109, applies. That issue was waived. Defendant did not argue, either
before the district court or in his opening brief to this court, that § 3109
applies. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)
(holding that issues not raised in a party’s opening brief are waived);
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (noting general rule
that we will not consider arguments for the first time on appeal). Accord-
ingly, we need not decide whether the statute independently might require
suppression. Moreover, we note that the search was not conducted by fed-
eral officers. See United States v. Combs, 394 F.3d 739, 742 n.1 (9th Cir.
2005) (stating that § 3109 does not govern the conduct of state officers).
 UNITED STATES v. ANKENY 11475
[3] It is true that “the manner in which a warrant is exe-
cuted is subject to later judicial review as to its reasonable-
ness.” Dalia v. United States, 441 U.S. 238, 258 (1979).
Unnecessary destruction of property or use of excessive force
can render a search unreasonable. Boyd v. Benton County, 374
F.3d 773, 780 (9th Cir. 2004); Liston v. County of Riverside,
120 F.3d 965, 979 (9th Cir. 1997). Deciding whether officers’
actions were reasonable requires us to balance “the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
quotation marks omitted).

[4] Whether this entry and search were conducted reason-
ably is a close question. The police had legitimate concerns
about their safety in entering and searching the house. Defen-
dant had a substantial criminal record, which included violent
crimes; there was reliable evidence that he was armed and
aggressive; there were several other people in the house,
including a former prison inmate; and certain physical charac-
teristics of the house made it difficult to secure.4 Officers tes-
tified at the suppression hearing that the element of surprise
was very important due to those factors and that they used the
battering ram, rubber bullets, and flash-bang devices in order
to surprise and distract the occupants of the house. Thus, the
destruction of property and use of force arguably were neces-
sary to carry out the search safely and effectively. The fact
that a gun was found stuffed into the cushions of the chair in
which Defendant was sitting when the police entered suggests
as much: if officers had entered more gently, perhaps Defen-
dant would have had a chance to draw his weapon and injure
or kill an officer or be injured or killed himself.

Further, the search did not exceed the scope of the warrant,
which weighs in favor of a conclusion of reasonableness. See
4
The residence had two stories and a basement, with a concrete barrier
at the rear separating the house from the I-205 freeway.
11476 UNITED STATES v. ANKENY
United States v. Penn, 647 F.2d 876, 882 n.7 (9th Cir. 1980)
(en banc) (“A warranted search is unreasonable if it exceeds
in scope or intensity the terms of the warrant.”). The warrant
authorized officers to search the house for guns, ammunition,
and associated documents and paraphernalia, and they did just
that. See United States v. Becker, 929 F.2d 442, 446 (9th Cir.
1991) (holding that, where warrant authorized search of the
defendant’s premises, it was reasonable for officers to use a
jackhammer to break up a concrete slab in the backyard in
order to search for evidence underneath).

On the other hand, the extent of the property damage, and
particularly the use of two flash-bang devices, one of which
seriously injured Defendant, weigh in favor of a conclusion of
unreasonableness. See id. (noting that even where the search
is within the scope of the warrant, it can be unreasonable
because of its “intolerable intensity”). The record is unclear
with respect to whether and why it was necessary to shoot out
so many windows and break down so many doors. Cf. San
Jose Charter of the Hell’s Angels Motorcycle Club v. City of
San Jose, 402 F.3d 962, 974 (9th Cir. 2005) (holding that it
was unreasonable for officers to cut a mailbox off its post,
jackhammer the sidewalk, and break a refrigerator); Mena v.
City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000)
(holding that it was unreasonable for officers to break down
doors that they already knew were open). And in Boyd, 374
F.3d at 779, we held that, “given the inherently dangerous
nature of the flash-bang device, it cannot be a reasonable use
of force under the Fourth Amendment to throw it ‘blind’ into
a room occupied by innocent bystanders absent a strong gov-
ernmental interest, careful consideration of alternatives and
appropriate measures to reduce the risk of injury.” It is not
clear that the officers took all appropriate and available mea-
sures to reduce the risk of injury here. For instance, Officer
Forsyth testified at the suppression hearing that he was trained
to deploy the flash-bang device away from the outer walls of
rooms and away from furniture and curtains that could catch
on fire, so he aimed for the center of the room. Although his
 UNITED STATES v. ANKENY 11477
concern for fire safety was valid, Forsyth threw the flash-bang
close to Defendant.

[5] Ultimately, we need not determine whether the entry
was unreasonable because we agree with the district court that
suppression is not appropriate in any event. The alleged
Fourth Amendment violation and the discovery of the evi-
dence lack the causal nexus that is required to invoke the
exclusionary rule.

[6] The principle that the exclusionary rule applies only
when discovery of evidence results from a Fourth Amend-
ment violation is well-established. See, e.g., Hudson, 126
S. Ct. at 2164 (“[B]ut-for causality is . . . a necessary . . . con-
dition for suppression.”); Segura v. United States, 468 U.S.
796, 804 (1984) (noting that the exclusionary rule reaches
“evidence obtained as a direct result of an illegal search or
seizure,” or “found to be derivative of an illegality”); United
States v. Pulliam, 405 F.3d 782, 791 (9th Cir. 2005) (denying
suppression because “the indispensable causal connection”
between the unlawful act and discovery of the evidence was
absent).

[7] United States v. Ramirez, 523 U.S. 65 (1998), is
instructive. There, the police obtained a no-knock warrant to
search a home. Approximately 45 officers gathered,
announced by loudspeaker that they had a search warrant,
broke one window in the garage, and pointed a gun through
the opening. The Supreme Court noted that “[e]xcessive or
unnecessary destruction of property in the course of a search
may violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to
suppression.” Id. at 71 (emphasis added). Although the Court
concluded that the police conduct in that case did not violate
the Fourth Amendment, the Court noted that, had the search
been unreasonable, it then would have had to determine
“whether . . . there was [a] sufficient causal relationship
between the breaking of the window and the discovery of the
11478 UNITED STATES v. ANKENY
guns to warrant suppression of the evidence.” Id. at 72 n.3
(emphasis added).

[8] Here, the discovery of the guns was not causally related
to the manner of executing the search. The police had a war-
rant, the validity of which is not questioned, and the guns,
money, and other contraband were not hidden. Even without
the use of a flash-bang device, rubber bullets, or any of the
other methods that Defendant challenges, “the police would
have executed the warrant they had obtained, and would have
discovered the [evidence] inside the house.” Hudson, 127
S. Ct. at 2164; cf. United States v. Hector, 474 F.3d 1150,
1155 (9th Cir. 2007) (holding that suppression was inappro-
priate where “[t]he causal connection between the failure to
serve [a] warrant and the evidence seized is highly attenuated,
indeed non-existent”). Accordingly, we affirm the district
court’s denial of Defendant’s motion to suppress the evidence.5

B. Multiplicitous Convictions

Defendant asserts that three of the four counts of being a
felon in possession of a firearm should have been dismissed
prior to sentencing because they were multiplicitous. We
review de novo whether a sentence is multiplicitous, unless
the defendant fails to raise the issue before the district court,
in which case review is for plain error. United States v. Smith,
424 F.3d 992, 999-1000 (9th Cir. 2005), cert. denied, 126
S. Ct. 1477 (2006). Under either standard, we agree with
Defendant.
5
The dissent’s assertion that, “under the majority’s approach even the
most outrageous methods employed by invading officers would be irrele-
vant so long as the officers had obtained a warrant,” dissent at 11494, is
overstated. Separate from the question of exclusion, “42 U.S.C. § 1983
and the Bivens doctrine have made tort damages an effective remedy for
constitutional violations by federal or state law enforcement officers.”
United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002).
 UNITED STATES v. ANKENY 11479
[9] In United States v. Szalkiewicz, 944 F.2d 653, 653-54
(9th Cir. 1991) (per curiam), we held that, regardless of the
number of firearms involved, there is only one offense of
being a felon in possession unless there is a showing that the
firearms were “stored or acquired at different times and
places.” Further, the separateness of acquisition or possession
must be found by a jury (or, presumably, admitted by the
defendant). Id.; see also United States v. Keen, 104 F.3d 1111,
1118 n.11 (9th Cir. 1997) (same).

[10] The indictment in this case makes no reference to sep-
arate acquisition or possession of the four firearms. Defendant
was charged with possessing each of the firearms on Novem-
ber 20, 2003. His written plea and plea colloquy made no ref-
erence to separate acquisition or possession. The government
concedes that it presented no evidence of separate acquisition
or possession. Instead, the government argues that, because
Defendant moved to dismiss the allegedly multiplicitous
counts only after his guilty plea was accepted, he waived any
claim of error with respect to the indictment, and any objec-
tion to his sentence may be reviewed only for plain error.

The government’s procedural argument is unpersuasive.
The defendant in Szalkiewicz similarly did not object to the
multiple counts of felon in possession in the indictment—and,
indeed, any objection to the indictment presumably would
have been overruled because the government still would have
had the opportunity to present proof of separate acquisition
and possession. Defendant lodged his objection at the appro-
priate time, after the government had missed that opportunity.
The plain error standard applies when the defendant failed to
raise the issue of multiplicitous sentences in the district court,
which was not the case here. See Smith, 424 F.3d at 1000.

Further, even if the plain error standard did apply, see
United States v. Olano, 507 U.S. 725, 732 (1993) (explaining
that plain error is error that is plain and that affects substantial
rights), Defendant’s conviction of multiple counts of being a
11480 UNITED STATES v. ANKENY
felon in possession of a firearm, rather than a single count,
harmed his substantial rights, see Guam v. Torre, 68 F.3d
1177, 1180 (9th Cir. 1995) (noting that “multiple convictions,
apart from concurrent sentences, carry ‘adverse collateral con-
sequences that may not be ignored’ ” (quoting Ball v. United
States, 470 U.S. 856, 864-65 (1985))).

[11] Accordingly, we remand with instructions for the dis-
trict court to dismiss all but one count of being a felon in pos-
session of a firearm.

C. Predicate Felonies for the ACCA

As an initial matter, Defendant’s argument that prior con-
victions must be alleged in the indictment and either admitted
or proved beyond a reasonable doubt to a jury is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 243-47
(1998). Defendant’s argument that we should invoke the doc-
trine of constitutional doubt to avoid Almendarez-Torres is
foreclosed by United States v. Grisel, No. 05-30585, slip op.
at 6740-41 (9th Cir. June 5, 2007) (en banc).

Defendant also argues that several of his prior convictions
do not qualify as predicate felonies under the ACCA. We
review that claim de novo, United States v. Marks, 379 F.3d
1114, 1116 (9th Cir. 2004), and hold that the prior convictions
do qualify as predicate felonies under the ACCA.

To qualify for a sentence enhancement under the ACCA, a
defendant must have three or more prior convictions for vio-
lent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).
The government alleged three prior convictions: a 2002 con-
viction for delivery of a Schedule II controlled substance
under Oregon law, a 1998 conviction for delivery of a Sched-
ule II controlled substance under Oregon law, and a 1977 con-
viction for Robbery II under Oregon law.

[12] Defendant contends that his two prior drug offenses do
not qualify as predicate felonies under the ACCA, because the
 UNITED STATES v. ANKENY 11481
maximum punishment for those offenses under the Oregon
Sentencing Guidelines is less than 10 years. The ACCA pro-
vides that, in order to count as a “serious drug offense,” the
maximum term of imprisonment “prescribed by law” must be
ten years or more. 18 U.S.C. § 924(e)(2)(A). Delivery of a
Schedule II controlled substance is a Class B felony under
Oregon law, Or. Rev. Stat. § 475.840(1)(b), and the maximum
sentence allowed by statute is 10 years, Or. Rev. Stat.
§ 161.605(2). Nonetheless, Defendant argues that the maxi-
mum sentence under the Oregon Sentencing Guidelines is the
maximum term “prescribed by law.” Defendant’s argument is
foreclosed by United States v. Parry, 479 F.3d 722, 724-25
(9th Cir. 2007). The district court properly found that Defen-
dant’s drug convictions were predicate felonies under the
ACCA.

Defendant also contends that his 1977 robbery conviction
does not qualify as a violent felony under the ACCA because
he was 17 years old at the time of that offense; the ACCA
defines the term “violent felony” to include “any act of juve-
nile delinquency involving the use or carrying of a firearm,
knife, or destructive device,” 18 U.S.C. § 924(e)(2)(B); and
the indictment and judgment do not prove that he used or car-
ried a firearm.

It is irrelevant whether Defendant used or carried a firearm,
because the documents associated with the 1977 robbery
show that Defendant was prosecuted as an adult, rather than
as a juvenile. Had Defendant not been prosecuted as an adult,
the information would not have alleged a violation of Oregon
Revised Statute section 164.405, and there would not be a
judgment of conviction for Robbery II—instead, there would
be only an adjudication of juvenile delinquency. See Or. Rev.
Stat. ch. 419C (juvenile code provisions concerning delin-
quency); cf. State v. Lawler, 927 P.2d 99, 103 (Or. Ct. App.
1996) (“[A]n adult criminal prosecution is not initiated by fil-
ing a delinquency petition.”). Section 924(e)(2)(B) concerns
only an act “of juvenile delinquency,” a term of art that does
11482 UNITED STATES v. ANKENY
not encompass the criminal conviction of a juvenile who was
prosecuted in adult court. See 18 U.S.C. § 5032 (discussing
the transfer of a juvenile for prosecution in adult court in lieu
of prosecution for juvenile delinquency).

[13] The only remaining question is whether Robbery II
under Oregon law is a violent felony for purposes of the
ACCA. The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year
. . . that has as an element the use, attempted use, or threat-
ened use of physical force against the person of another.” 18
U.S.C. § 924(e)(2)(B)(i). Oregon’s Robbery II statute pro-
vides:

(1) A person commits the crime of robbery in the
second degree if the person violates ORS 164.395
and the person:

(a) Represents by word or conduct that the person is
armed with what purports to be a dangerous or
deadly weapon; or

(b) Is aided by another person actually present.

(2) Robbery in the second degree is a Class B felony.

Or. Rev. Stat. § 164.405. In turn, Oregon Revised Statute sec-
tion 164.395 provides that a person commits robbery

if in the course of committing or attempting to com-
mit theft . . . the person uses or threatens the immedi-
ate use of physical force upon another person with
the intent of:

(a) Preventing or overcoming resistance to the taking
of the property or to retention thereof immediately
after the taking; or
 UNITED STATES v. ANKENY 11483
(b) Compelling the owner of such property or
another person to deliver the property or to engage
in other conduct which might aid in the commission
of the theft . . . .

Under the categorical approach described in Taylor v.
United States, 495 U.S. 575, 602 (1990), we look only to the
fact of conviction and the statutory definition of the offense
to determine whether it was a violent felony. The Oregon stat-
utory definition of second-degree robbery contains the
required element of use, attempted use, or threatened use of
physical violence. See United States v. Melton, 344 F.3d
1021, 1026 (9th Cir. 2003) (holding that where the state’s def-
inition of robbery has on its face the element of use or threat-
ened use of physical force, a robbery conviction is properly
used as a predicate under ACCA). We therefore hold that a
conviction for second-degree robbery under Oregon law con-
stitutes a violent felony for purposes of ACCA.

Thus, the district court properly found that Defendant’s
prior convictions were predicate felonies under ACCA.

D. Career Offender Guideline

U.S.S.G. § 4B1.1 (2003)6 establishes that a defendant is a
career offender if the defendant was at least 18 years old at
the time of the instant offense, the instant offense is a felony
and either a crime of violence or a controlled substance
offense, and the defendant has at least two prior felony con-
victions for crimes of violence or controlled substance
offenses. Defendant argues that the Career Offender Guide-
line should not have been applied to him, because the instant
offense was not a crime of violence. We review de novo the
district court’s interpretation and application of the Sentenc-
ing Guidelines. United States v. Nielsen, 371 F.3d 574, 582
(9th Cir. 2004).
6
Defendant was sentenced under the 2003 Sentencing Guidelines.
11484 UNITED STATES v. ANKENY
Defendant is correct with respect to the counts of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). “ ‘Crime of violence’ does not include the
offense of unlawful possession of a firearm by a felon . . . .”
U.S.S.G. § 4B1.2 cmt. n.1; see also Stinson v. United States,
508 U.S. 36, 45-47 (1993) (holding that Sentencing Guide-
lines commentary must be given controlling weight unless it
violates the Constitution or a federal statute, or is plainly
inconsistent with the Guidelines itself). However, Defendant
is incorrect with respect to the count of possessing an unregis-
tered sawed-off shotgun in violation of 26 U.S.C. § 5861(d).
“The possession of an unregistered firearm of the kind
defined in [26 U.S.C.] § 5845 . . . involves the substantial risk
of violence necessary to label the possession a crime of vio-
lence,” United States v. Dunn, 946 F.2d 615, 621 (9th Cir.
1991), and Defendant’s sawed-off shotgun is of the type
described in § 5845(a).7

[14] The district court therefore should have applied the
Career Offender Guideline only to Count 4, possession of an
unregistered sawed-off shotgun. Instead, the district court
erred by imposing a Career Offender sentence on all counts.
If a district court incorrectly applies the Sentencing Guide-
lines and its error is not harmless, then we vacate the sentence
and remand for resentencing. United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006); see also United States v.
Menyweather, 447 F.3d 625, 634 (9th Cir. 2006) (holding that
any error was harmless because, “under the unusual circum-
7
The 2004 commentary to U.S.S.G. § 4B1.2 explicitly provides that
being a felon in possession of the type of firearm described in 26 U.S.C.
§ 5845(a) is a crime of violence. If this change from the 2003 Guidelines
is “clarifying” rather than “substantive,” it applies retroactively. United
States v. Morgan, 376 F.3d 1002, 1010 (9th Cir. 2004). We need not
decide whether the amendment applies retroactively, though, because the
government—despite later assertions to the contrary—never argued in
briefing or oral argument that the amendment should apply retroactively.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,
arguments not raised by a party in its opening brief are deemed waived.”).
 UNITED STATES v. ANKENY 11485
stances present in this third-time appeal, we recognize that the
district court could—and would—impose the same sentence
again”). Here, we cannot say with certainty that Defendant
would not have received a lower sentence if the district court
had calculated his Guidelines range properly. Accordingly,
we remand for resentencing.

Convictions AFFIRMED, except for the multiplicitous
felon-in-possession convictions, which are REVERSED; sen-
tence VACATED; REMANDED for resentencing.

REINHARDT, Circuit Judge, dissenting:

I. Introduction

I agree with the majority that the law enforcement officers’
entry into David Kelly Ankeny’s home without complying
with the constitutional “knock and announce” requirements
does not necessitate suppression of the evidence. See Maj. Op.
at 11473-74. After Hudson v. Michigan, 126 S. Ct. 2159
(2006), such a knock-and-announce violation no longer justi-
fies the remedy of suppression. Id. at 2168. Because I con-
clude, however, that the intensive and violent search that
ensued was unreasonable due to the extreme use of excessive
force and that the evidence seized during the unlawful search
should be suppressed, I am compelled to dissent.

The majority avoids determining whether the military-style
invasion of Ankeny’s home, with the concomitant destruction
of physical property and infliction of serious personal injuries,
violated Ankeny’s Fourth Amendment rights. It does so by
holding that regardless of how unlawful the law enforcement
officers’ actions may have been, “suppression is not appropri-
ate,” because “[t]he alleged Fourth Amendment violation and
the discovery of the evidence lack the causal nexus that is
required to invoke the exclusionary rule.” Maj. Op. at 11477.
11486 UNITED STATES v. ANKENY
Contrary to the majority’s view, however, the remedy of sup-
pression is hardly inappropriate in a case such as this, where
a search executed with excessive and unreasonable force
directly results in the discovery of the seized evidence.
Because the unlawful search was causally related to the dis-
covery of the evidence, and because our prior cases hold that
suppression may be appropriate when the manner of the
search — and not just the initial entry or a “preliminary mis-
step,” Hudson, 126 S. Ct. at 2164 — exceeds the terms of the
warrant, I would hold that suppression is the proper remedy
in Ankeny’s case and therefore reverse his conviction.

II. Hudson v. Michigan Should Not Be Extended

In Hudson, the Supreme Court held that suppression is no
longer a remedy for constitutional violations of the knock-
and-announce requirement. 126 S. Ct. at 2168. The Court,
however, was divided over the basis for its holding. Justice
Kennedy, whose concurring opinion provided the Hudson
majority’s fifth vote, joined in parts I through III of Justice
Scalia’s opinion for the Court, but declined to join Part IV,
which stated that “[a] trio of cases — Segura v. United States,
468 U.S. 796 (1984); New York v. Harris, 495 U.S. 14 (1990);
and United States v. Ramirez, 523 U.S. 65 (1998) — confirms
our conclusion that suppression is unwarranted in this case.”
Hudson, 126 S. Ct. at 2168; id. at 2171 (Kennedy, J., concur-
ring). While Part IV of Justice Scalia’s opinion attempts to
link Hudson’s rejection of suppression as a remedy for violat-
ing the Fourth Amendment’s knock-and-announce require-
ment to a broader trend abandoning the exclusionary rule in
other contexts, Justice Kennedy’s concurring opinion cuts
very much in the opposite direction, cautioning that:

[T]he continued operation of the exclusionary rule,
as settled and defined by our precedents, is not in
doubt. Today’s decision determines only that in the
specific context of the knock-and-announce require-
 UNITED STATES v. ANKENY 11487
ment, a violation is not sufficiently related to the
later discovery of the evidence to justify suppression.

Id. at 2170 (emphasis added).

In determining whether to extend Hudson beyond the “spe-
cific context,” of the knock and-announce requirement, as the
government asks us to do here, we should respect Justice
Kennedy’s instruction that “the continued operation of the
exclusionary rule, as settled and defined by our precedents, is
not in doubt.” Id. In the Appendix to his dissenting opinion
in Hudson, Justice Breyer provides a list of 41 Supreme Court
decisions from 1914 to 2006 “requiring suppression of evi-
dence seized (or remanding for lower court to make suppres-
sion determination) in a private home following an illegal
arrest or search.” Id. at 2186-88 (Breyer, J., dissenting). These
decisions reflect the important rights that are at stake, as we
consider whether suppression is the appropriate remedy for
the unlawful violent search that occurred of Ankeny’s private
home. Although the majority purports not to extend the hold-
ing of Hudson, its opinion does extend Hudson, far beyond
the “specific context of the knock-and-announce requirement
. . . .” Id. at 2170 (Kennedy, J., concurring). Applying the test
employed by Justice Kennedy, I would hold that in Ankeny’s
case the unconstitutional search is “sufficiently related to the
later discovery of the evidence to justify suppression.” Id.
Indeed, here, there is no attenuation of any kind. It is the
unlawful search itself that led directly to the discovery of the
evidence at issue.

III. Evidence May Be Suppressed Where, As Here,
Officers Seize it as a Direct Result of a Search
Executed with Unlawful Excessive Force

Although the majority correctly recognizes that
“[u]nnecessary destruction of property or use of excessive
force can render a search unreasonable,” and states that
“[w]hether this entry and search were conducted reasonably
11488 UNITED STATES v. ANKENY
is a close question,” Maj. Op. at 11475, it ultimately avoids
deciding that issue by holding that “[t]he alleged Fourth
Amendment violation and the discovery of the evidence lack
the causal nexus that is required to invoke the exclusionary
rule.” Id. at 11477. After citing several cases for the proposi-
tion that causality is a necessary condition for applying the
exclusionary rule, the majority concludes that “the discovery
of the guns was not causally related to the manner of execut-
ing the search,” because “[t]he police had a warrant” and
“[e]ven without the use of a flash-bang device, rubber bullets,
or any of the other methods that Defendant challenges, ‘the
police would have executed the warrant they had obtained,
and would have discovered the [evidence] inside the house.’ ”
Maj. Op. at 11478 (quoting Hudson, 127 S. Ct. at 2164).

By holding that the exclusionary rule does not apply to
searches conducted with excessive force, the majority over-
looks our prior decisions that have applied or assumed the
appropriateness of suppression when a “warranted search” is
nevertheless rendered unreasonable because “it exceeds in
scope or intensity the terms of the warrant.” United States v.
Becker, 929 F.2d 442, 446-47 (9th Cir. 1991) (quoting United
States v. Penn, 647 F.2d 876, 882 n.7 (9th Cir. 1980) (en
banc)); see also United States v. Chen, 979 F.2d 714, 717 (9th
Cir. 1992). “[W]here there is a ‘flagrant disregard’ for the
terms of the warrant, the district court may suppress all of the
evidence, including evidence that was not tainted by the viola-
tion.” Chen, 979 F.2d at 717 (quoting United States v. Medin,
842 F.2d 1194, 1199 (10th Cir. 1988)). These cases have
never been overruled and they are in no respect inconsistent
with Hudson. Because the intensity of the violent search of
Ankeny’s home demonstrated a “flagrant disregard” for the
terms of the warrant, thereby turning it into a general warrant,
it is necessary and appropriate to suppress the evidence that
the officers seized pursuant to that warrant. Id.
 UNITED STATES v. ANKENY 11489
A. Discovery of the Guns is Causally Related to the
Unlawful Search

Contrary to the majority’s conclusion, the substantial
Fourth Amendment violation in this case — the use of
extreme and excessive force in the search (not merely the
existence of an initial unlawful entry or a “preliminary mis-
step,” Hudson, 126 S. Ct. at 2164) — was the direct cause of
the discovery of the guns. Under the controlling law, where,
as here, the discovery of the evidence is the “direct result of
an unconstitutional search,” the evidence is subject to exclu-
sion. Segura, 468 U.S. at 804 (“Evidence obtained as a direct
result of an unconstitutional search or seizure is plainly sub-
ject to exclusion.”).

In Hudson, as I have noted, the Court wrote that the knock-
and-announce violation concerned only the “manner of entry”
or a “preliminary misstep,” 126 S. Ct. at 2164, which was fol-
lowed by an “ensuing, lawful search . . . .” Id. at 2171 (Ken-
nedy, J., concurring). As Justice Kennedy explained, when “a
violation results from want of a 20-second pause but an ensu-
ing, lawful search lasting five hours discloses evidence of
criminality, the failure to wait at the door cannot properly be
described as having caused the discovery of evidence.” Id.
(emphasis added). In this case, however, law enforcement
officers executed the overall search that led directly to the sei-
zure of the evidence with extreme and excessive force;
indeed, the search was permeated with illegality. Given that
the excessive force employed in this case rendered the entire
search unlawful under the Fourth Amendment, the search
bears no resemblance to the “lawful search” that followed the
initial “entry” in Hudson. Id. Indeed, the facts and circum-
stances in this case are the polar opposite of those in Hudson.
In short, Hudson is entirely inapplicable.

Moreover, the majority’s own description of the events
belies its conclusion that the unlawful search was not the
cause of the discovery of Ankeny’s weapons. After explaining
11490 UNITED STATES v. ANKENY
how the police broke down the door and entered the home, the
majority then describes what happened inside the house sub-
sequent to the unlawful entry. The law enforcement officers
threw a flash bang device at Ankeny that exploded and badly
burned him, secured the second floor, and threw a second
flash bang device into an open area on that floor, setting on
fire a bed in which two people were lying. Meanwhile, the
officers shot bullets into the second story windows — indeed
shot out ten windows. The majority then states that
“[t]hereafter, the police recovered” two semiautomatic guns in
the living room, a shotgun and a rifle in the upstairs bedroom,
and another rifle in the basement. Maj. Op. at 11470-71
(emphasis added). Because the immediate direct result of the
violent search at issue here was the discovery of the guns, it
follows that the discovery of the guns was causally related to
the unconstitutional search.1 Unlike in Hudson, here there was
no intervening lawful search that broke the chain of causation.
Accordingly, the “exclusionary rule reaches . . . [the] primary
evidence obtained as a direct result of [this] illegal search
. . . .” Segura, 468 U.S. at 804 (citing Weeks v. United States,
232 U.S. 383 (1914)).

B. The Benefits of Excluding the Evidence Outweigh
the Costs in Cases in Which Excessive Force
Renders a Search Unconstitutional

In addition to the presence of causality, in this case the
cost-benefit rationale, which was critical to Hudson’s rejec-
tion of the exclusionary rule for knock-and-announce viola-
tions, strongly favors the suppression of the evidence directly
obtained by a search conducted with unlawful, excessive
1
The majority, for some reason best known to its members, asserts that
the property damage was done during the “entry” rather than during the
“search.” This is patently incorrect, and is in any event irrelevant. The
principal excessive force was directed against persons, not property, and
the force was applied after the officers had entered the dwelling and were
in the process of executing the search warrant.
 UNITED STATES v. ANKENY 11491
force. See Hudson, 126 S. Ct. at 2165-68. Although “the
exclusionary rule has never been applied except where its
deterrence benefits outweigh its substantial costs,” Id. at
2165, the benefits of suppressing the fruits of military-style
searches conducted with excessive force that may cause seri-
ous destruction to the home and serious injuries and the risk
of death to occupants and guests, both adults and children, far
outweigh the costs.

Compared to the “costs” of allowing suppression for the
knock-and-announce rule, which Justice Scalia’s opinion
asserts would set dangerous criminals free for trivial reasons
and generate a constant flood of such claims, id. at 2165-66,
the type of claim asserted by Ankeny should arise rarely and
therefore would be unlikely to produce a swarm of cases
involving excessive force searches. Also, officials and courts
are far more competent to discern which extraordinary tactics
constitute excessive force than to determine in the heat of the
moment “what constitute[s] a reasonable wait time in a partic-
ular case” before entering — usually a matter of calculating,
wholly subjectively the appropriate number of seconds. Id. at
2166 (internal quotations and citations omitted). In fact, with-
out any difficulty, we have in the past in a case remarkably
similar to the one before us struck down, as constituting
excessive force, specific tactics such as the ones used in the
case before us. See, e.g., Boyd v. Benton County, 374 F.3d
773, 779 (9th Cir. 2004) (holding that officers had employed
“constitutionally excessive” force by “blindly” throwing a
flash bang grenade into an apartment occupied by five to eight
individuals). Finally, on the cost side, the knock-and-
announce rule could deprive some officers of their ability to
make on the spot discretionary judgments on the basis of their
experience and cause them to “wait longer than the law
requires.” Hudson, 126 S. Ct. at 2166. The tactical decision
whether to use massive, excessive military type force, how-
ever, is ordinarily made after full consultation well before the
officers execute a warrant. In fact, the record here reveals that
officers discussed for weeks how to arrest Ankeny and what
11492 UNITED STATES v. ANKENY
tactics would be employed. Because of the opportunity for
careful, deliberate planning, it is possible to minimize the
risks to officers while at the same time ensuring the protection
of individual constitutional rights.

As to the “deterrence benefits” of exclusion, in Hudson Jus-
tice Scalia’s opinion did not seem to find much that was bene-
ficial about suppression as the result of a violation of the
knock-and-announce rule. See Hudson, 126 S. Ct. at 2166
(referring to the rule as “the right not to be intruded upon in
one’s nightclothes”).2 In the context of a search executed with
excessive force, however, the benefits of deterrence are tre-
mendous, and much greater than in Hudson. The principal
benefits of deterrence are avoiding unnecessary destruction of
private property and, most important, reducing the risk of
serious injury and death to home owners, their families and
their guests, including innocent children. In Ankeny’s case,
rubber bullets rained through the windows, and one set of
officers caused Ankeny serious injury by throwing a flash
bang device toward him that burned him badly, while a sec-
ond group of officers set a bed occupied by others on fire by
hurling a second flash bang device in their direction. At the
time the officers launched their assault, they were aware that
a one-year-old child was an occupant of the house and in fact
when the attack began the one-year-old was present. Cer-
tainly, the right not be set afire or killed “in one’s night-
clothes” is far more grave and worthy of protection than the
“right not to be intruded upon in [that attire].” Id. at 2167.

Although the fear of a lawsuit under 42 U.S.C. § 1983 may
deter some officials from engaging in such dangerous and
2
Five Justices, however, expressed the view that the knock-and-
announce rule protects far greater interests and values than Justice Scalia’s
opinion acknowledged. See id. at 2170 (Kennedy, J., concurring) (stating
that “privacy and security in the home are central to the Fourth Amend-
ment’s guarantees,” and stating that “[s]ecurity must not be subject to ero-
sion by indifference or contempt.”); id. at 2180 (Breyer, J., dissenting).
 UNITED STATES v. ANKENY 11493
warlike conduct, I do not believe that the potential for civil
damages would sufficiently deter law enforcement officers
from using the type of excessive force at issue here. See id.
at 2167-68 (stating that “[a]s far as we know, civil liability is
an effective deterrent” to knock-and-announce violations). It
is the official for whom the fear of civil liability is not ordi-
narily an effective deterrent that suppression is a necessary
remedy in order to ensure compliance with the Fourth
Amendment. One would expect that only the most belligerent
of law enforcement officials, at whatever level, or those most
disdainful of individual rights, would employ the type of force
applied by the officers in this case. It is such officials, how-
ever, who are least likely to be deterred by civil liability
alone, especially in light of the general practices regarding
indemnification.3 Moreover, informing law enforcement offi-
cials a priori that suppression will never be an available rem-
edy if they first obtain a warrant, regardless of how excessive
or destructive the invasion and search of the house, would
serve only to encourage some individuals to unleash over-
whelming force on our citizens in contravention of the Fourth
Amendment.

Finally, the facts of this case demonstrate a lack of profes-
sionalism and disdain for the rights of individuals on the part
of some law enforcement officers that is not likely to be cured
by the possibility of a § 1983 action. Cf. Hudson, 126 S. Ct.
at 2168. The officers who executed the search were anything
but professional in how they described, in text messages, “the
fun” and the “good time had by all” when they caused
3
“[P]olice officials are usually insulated from any economic hardship
associated with lawsuits based on conduct within the scope of their author-
ity. . . . . Police officers are generally provided free counsel and are indem-
nified for conduct within the scope of their authority.” Briscoe v. Lahue,
460 U.S. 325, 366 & n.38 (1983) (Marshall, J., dissenting) (citing Monell
v. New York City Dept. of Social Services, 436 U.S. 658, 713 (1978) (Pow-
ell, J., concurring); Project, Suing the Police in Federal Court, 88 YALE
L. J. 781, 810 (1979)); accord PETER H. SCHUCK, SUING GOVERNMENT: CITI-
ZEN REMEDIES FOR OFFICIAL WRONGS 83-88 (1983).
11494 UNITED STATES v. ANKENY
Ankeny to suffer serious burns. In three text messages, offi-
cers wrote to each other:

(1) “SORRY TIM, WE WERE JUST JUMPING
OFF . . IT WAS 936 NE . . . BIG FUN!”; (2) “IT
WAS CRAZY . . . FUN HAD BY ALL . . . WELL
EXCEPT FOR THE GUY WHO LAID ON THE
FLASHBANG . . . 2ND DEGR BURNS . . . MISS-
ING HALF A MUSTACHE”; (3) “BIG TIME
FUN!! LOTS OF BROKEN GLASS, BAD GUY
JUMPED ON THE FLASHBANG, GOOD TIME
HAD BY ALL.”

In sum, the costs of suppressing evidence in cases of exces-
sive force are far less substantial than those in Hudson,
whereas the benefits of deterrence, namely the protection of
human life and property, are far more significant. Indeed, our
analysis confirms that the exclusionary rule is not only appro-
priate, but absolutely necessary, to protect men, women, and
children whose physical well being and very lives may be
placed in jeopardy by the intentional and calculated use of
excessive force in violation of the Fourth Amendment.

C. The Majority’s Holding Will Lead to Unacceptable
Results and is Unsupported by the Cases Upon
Which It Relies

Although the majority does not explicitly state or hold that
suppression may never be a remedy for the use of excessive
force while executing a warrant, its causality argument fol-
lowed to its logical conclusion does just that — it creates a
blanket exception to the exclusionary rule for unreasonably
executed searches whenever the officers possess a valid
search warrant. This, of course, will inevitably lead to most
unfortunate consequences, because under the majority’s
approach even the most outrageous methods employed by
invading officers would be irrelevant so long as the officers
had obtained a warrant. Certainly, at least five members of the
 UNITED STATES v. ANKENY 11495
Hudson Court could not have intended a result so contrary to
our fundamental Fourth Amendment precepts.

The cases cited by the majority do not support its holding.
See Maj. Op. at 11477. First, as noted above, Hudson is inap-
posite because it involved a lawful search following a prelim-
inary misstep or initial entry, whereas the search of Ankeny’s
home involved an unlawful search that directly resulted in the
discovery of the weapons.4

Second, reliance on Segura v. United States, 468 U.S. 796
(1984), is similarly misplaced in this case, just as five Justices
found such reliance unhelpful in Hudson. See Hudson, 126
S. Ct. at 2171 (Kennedy, J., concurring); id. at 2183 (Breyer,
J., dissenting). Segura involved an illegal warrantless entry,
followed 19 hours later by a lawful search pursuant to a law-
ful warrant that the police obtained in the interim with infor-
mation that was unrelated to the warrantless entry. The Court
4
Although the majority claims that United States v. Ramirez, 523 U.S.
65 (1998) “bears some similarity to this case,” it is inapposite for the same
reason as Hudson — it involved only the “manner in which the entry was
accomplished,” the breaking of a single window of the defendant’s garage,
and not an unlawful search. Id. at 71. Moreover, to construe Ramirez, we
must look to Justice Kennedy’s concurring opinion in Hudson, in which
he stated that the “application of the exclusionary rule depends on the
existence of a ‘sufficient causal relationship’ between the unlawful con-
duct and the discovery of evidence.” Hudson, 126 S. Ct. at 2171 (quoting
Ramirez, 523 U.S. at 72 n.3). As I have explained above, such a causal
connection exists here. To the extent that the majority relies upon the dic-
tum in Ramirez that Justice Scalia endorsed in Part IV of Hudson, it errs.
Justice Kennedy did not concur in that part of Justice Scalia’s opinion.
Moreover, the meaning of the dictum is far from clear. See id. at 2170
(“ ‘destruction of property in the course of a search may violate the Fourth
Amendment, even though the entry itself is lawful and the fruits of the
search are not subject to suppression.’ ”); Maj. Op. at 11477 (quoting the
same dictum). The dictum suggests only that sometimes in cases in which
an unlawful destruction of property occurs, there will be no justification
for suppressing the evidence. That tells us little about the opposite circum-
stances — cases in which the use of excessive force taints a search suffi-
ciently as to warrant such suppression.
11496 UNITED STATES v. ANKENY
refused to suppress the evidence, not because of a lack of
causal relationship to the conduct of the search, but because
the search was lawful in every respect. The search was con-
ducted pursuant to what the Court determined to be a lawful
warrant and was conducted in a lawful manner. See id. at 813-
14. The attenuation applied only to the 19-hour-old initial
entry. Here, of course, the entire point is that the search that
produced the seized evidence was conducted with excessive
force and was, accordingly, unlawful.

Third, United States v. Hector, 474 F.3d 1150 (9th Cir.
2007), does not compel the majority’s holding. Id. at 1154-55
(holding that suppression is not an appropriate remedy for
officers’ failure to serve a warrant to the defendant before,
during, or immediately after the search). If officers violate
their obligation to serve the warrant by failing to present it
“immediately after a search of a home,” id. at 1154 (emphasis
added) (quoting United States v. Martinez-Garcia, 397 F.3d
1205, 1212 n.3 (9th Cir. 2005)), it cannot be the but for cause
of the seizure of evidence that has already occurred. Here,
however, the excessive force that transformed what could
have been a lawful search pursuant to a valid warrant into an
unlawful search occurred directly before the officers recov-
ered the evidence and also enabled the officers to retrieve the
weapons more easily. Moreover, the deterrence benefits asso-
ciated with suppressing evidence obtained through the use of
excessive force are many times greater and far worthier of
protection than the “relatively small [deterrence benefit] in the
case of failure to present a copy of the warrant.” Id. at 1155
(suggesting that once officers have obtained a valid warrant,
they have little incentive to fail to present the warrant when
they execute it).

Finally, to the extent that the majority opinion asserts that
the evidence would have been discovered if the law enforce-
ment officers had lawfully executed the warrant without
excessive force, the argument does not advance its cause. It
is often the case that officers who conduct an unlawful search
 UNITED STATES v. ANKENY 11497
might instead have conducted a lawful one. That, however, is
insufficient to establish a lack of causality or to render the
unlawful search valid. To the contrary, if the search was ille-
gal, we do not overlook the illegality on the ground that the
search could have been conducted legally. Nor do we refuse
to suppress evidence for that reason. For example, officers
who conduct an unlawful warrantless search could often have
obtained a warrant and lawfully executed it. We do not find
an absence of a causal relationship between discovery of the
evidence and the unlawful search in such circumstances.
Rather, we suppress the evidence. United States v. Reilly, 224
F.3d 986, 995 (9th Cir. 2000) (suppressing evidence and
refusing “ ‘to excuse the failure to obtain a search warrant
where the police had probable cause but simply did not
attempt to obtain a warrant.’ ”) (quoting United States v.
Mejia, 69 F.3d 309, 320 (9th Cir. 1995)).

D. The Search of Ankeny’s Home Was Unreasonable

Having determined that suppression may be an appropriate
remedy in an excessive force case, I would hold that in this
case the “intolerable intensity” of the force employed ren-
dered the search unreasonable. Becker, 929 F.2d at 446; see
also Boyd, 374 F.3d at 778-79.

Ankeny contends that the tactics employed by officers con-
stitute excessive force, including the deployment of 44 offi-
cers in the military style operation, the forcible entry of the
home by means of a battering ram, the kicking down of the
doors of every room in the house, the firing of myriad rubber
bullets into the house shattering all the upstairs windows, and
above all, the throwing of two “inherently dangerous” flash-
bang devices towards three individuals, all with knowledge
that a one year old infant was among the residents of the
house. Boyd, 374 F.3d at 779. In this case, it is unnecessary,
however, to look beyond the officers’ use of the two flash-
bang devices to hold that their “use of force was constitution-
ally excessive.” In that respect, our decision in Boyd controls.
11498 UNITED STATES v. ANKENY
Id. There, we held that officers used excessive force when
they threw a flash-bang device “ ‘blind’ into a room occupied
by innocent bystanders, absent a strong government interest,
careful consideration of alternatives and appropriate measures
to reduce the risk of injury.” Id. Here, one of the devices was
hurled in Ankeny’s direction as he was complying with the
officers’ instruction to him to get down on the floor. The other
was then thrown toward a bed occupied by two individuals.

Compared to the deployment of the single flash-bang
device in Boyd, the officers’ use of two such devices in the
instant action and the deliberate throwing of them in the direc-
tion of Ankeny and the two other occupants of the house
whom the officers had no reason to believe had committed
any offense was far more excessive. After breaking down the
door with a battering ram, an officer demanded that Ankeny,
who had been sleeping in a recliner in his living room, lie
down on the floor. Although Ankeny did not resist or act in
a threatening manner, an officer lobbed the flash-bang device
towards him; as a result, the device exploded and caused first-
and second-degree burns to his face and chest. Similarly, an
officer who proceeded to an upstairs bedroom tossed a second
device onto the floor by the edge of the bed where a man and
a woman were lying, setting the bed on fire. If throwing a
flash-bang device blindly into a room without warning is
excessive, it is unquestionable that tossing these “explosive,
incendiary weapon[s]” directly at three human beings without
any notice, as the officers did here, constitutes constitutionally
excessive force. Id. Also, as in Boyd, in which officers knew
there were five to eight people sleeping in the apartment, id.,
officers here knew that at least four to seven adults and a one-
year-old child resided at Ankeny’s home.5 Moreover, the evi-
dence of severe property destruction noted by the majority —
5
The potentially dangerous circumstances that officers faced in search-
ing the home in Boyd were also remarkably similar to — and if anything
more perilous than — Ankeny’s case, where police believed that Ankeny
possessed a semi-automatic handgun. In Boyd, the officers believed that
 UNITED STATES v. ANKENY 11499
the breaking of many windows and doors without a clear
explanation as to any necessity — strengthens the conclusion
that the search was unreasonable due to its “intolerable inten-
sity.” Maj. Op. at 11476. Certainly, there is no evidence in the
record that suggests that the officers took any substantial steps
to reduce the risk of injury. In my view, a military style inva-
sion of the type that occurred here is justified only in rare cir-
cumstances and only as a last resort, at least where innocent
civilians and children are known to be present in the house.

IV. Conclusion

I reiterate here what we have stated before: “[n]owhere is
the protective force of the fourth amendment more powerful
than it is when the sanctity of the home is involved. . . . The
sanctity of a person’s home, perhaps our last real retreat in
this technological age, lies at the very core of the rights which
animate the amendment.” Los Angeles Police Protective
League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990) (citations
omitted). Bearing this principle in mind, as well as Justice
Kennedy’s firm statement in Hudson that “the continued oper-
ation of the exclusionary rule . . . is not in doubt,” 126 S. Ct.
at 2170 (Kennedy, J., concurring), I cannot agree that the
mere fact that the police had a lawfully obtained search war-
rant bars this Court from suppressing the evidence directly
discovered during the violent and unlawful search that actu-
ally occurred. Accordingly, I dissent.

the armed robbery suspect might be in the apartment, that a stolen .357
magnum might be there as well, that another potential occupant had tried
to buy an assault rifle, and two “armed individuals” were witnessed leav-
ing the apartment. 374 F.3d at 777. The danger created by these weapons
was heightened by the fact that “the apartment had a loft from which a
shooter could have placed the officers in a vulnerable position as they
entered the apartment . . . .” Id. Despite such potential dangers, we held
that the officers did not demonstrate the strong government interest that
would permit officers to blindly deploy such an inherently dangerous
device. Id. at 779.