United States Court of Appeals
For the First Circuit
No. 10-2146
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN GARCIA-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Ripple* and Selya,
Circuit Judges.
Michael J. Iacopino, with whom Brennan Caron Lenehan &
Iacopino was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
October 12, 2011
*
Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal presents two unrelated
issues, which we decide together only because they arise within the
confines of a single criminal case. The first issue hinges on
whether the Supreme Court's decision in Hudson v. Michigan, 547
U.S. 586 (2006), establishes categorically that exclusion of seized
evidence is not available as a remedy for violations of the knock-
and-announce rule. The second issue involves sentencing; its
resolution depends on whether the aggravating role adjustment
contained in section 3B1.1(b) of the federal sentencing guidelines
authorizes a three-level upward enhancement when the defendant,
although a manager or supervisor in a criminal activity comprising
five or more participants, oversees fewer than five persons. After
answering both of these inquiries in the affirmative, we affirm the
judgment below.
I. BACKGROUND
In February of 2009, a confidential informant furnished
information to law enforcement officers in Manchester, New
Hampshire, that led to the unmasking of a massive drug-trafficking
operation. The enterprise had long tentacles, reaching out to a
myriad of suppliers, couriers, wholesalers, and street-level
dealers.
An intensive investigation ensued. In due course, task
force agents apprehended Renaury Ramirez-Garcia (Ramirez) while he
was endeavoring to purchase ten kilograms of cocaine from an
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undercover officer. Ramirez admitted that he and defendant-
appellant Juan Garcia-Hernandez were partners in what amounted to
a franchise of the larger drug-trafficking ring. According to
Ramirez, the defendant's principal responsibilities were the
procurement of cocaine from sources higher up the chain of command
and the transportation of the acquired contraband to New
Hampshire.1 From that point forward, Ramirez oversaw the
distribution of the drugs in the Northeast.
After Ramirez told the agents that the local franchise
was expecting a fifty-kilogram cocaine delivery in mid-April, they
enlisted Ramirez's paramour, Nicole Kalantzis, to assist in the
probe. In the course of meetings and telephone calls with
Kalantzis, the defendant indicated that he expected the delivery of
cocaine to occur on April 12. He also stated that Kalantzis could
get a portion of the shipment to sell to Ramirez's customers. To
that end, the defendant and his girlfriend gave Kalantzis specific
instructions on how to manage distribution of the drugs in
Ramirez's absence.
Armed with this intelligence, the agents obtained a
warrant to search the defendant's residence. They planned to
execute the warrant on April 12. On that morning — Easter Sunday
— the officers sent Kalantzis into the house to confirm that the
1
The sources of supply were located as far away as Mexico,
Florida, and Texas.
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shipment had arrived. When Kalantzis left the house with a
suitcase containing 15 kilograms of cocaine, the agents executed
the search warrant.
The manner in which the authorities executed the warrant
is, for present purposes, of particular pertinence. One officer
drove an armored vehicle onto the lawn and parked in front of a
picture window. Another breached the front door with a battering
ram. Others detonated noise-flash devices, causing windows in the
residence to shatter. The main body of searchers, several carrying
assault rifles, stormed into the residence.
All in all, 18 officers and a dog participated in the
mission. Inside the home, they found eight adults (including the
defendant) and three children. The search yielded drug
paraphernalia, multiple cell phones, small quantities of cocaine
and marijuana, and approximately $58,000 in cash.
The defendant's Cadillac was parked outside the
residence. The police obtained an additional search warrant for
it. That ancillary search recovered 30 kilograms of cocaine stowed
in garbage bags in the vehicle's trunk.
The defendant was arrested and eventually charged with
distribution of, and conspiracy to distribute, in excess of five
kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. He moved
to suppress the seized evidence on the ground that the search party
had violated the knock-and-announce rule by failing to alert the
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occupants prior to forcing entry into the dwelling. He posited
that the manner in which the officers executed the search warrant
— in his words, a "military assault" — was so egregious as to
demand exclusion of the fruits of the search.
The district court (McAuliffe, J.) denied the motion to
suppress on alternative grounds: first, it concluded that the
officers' failure to knock and announce their presence was not
fatal because the execution of the warrant fell within an exception
permitting a no-knock entry where notice of the imminent ingress
presents a great risk of danger or a likelihood that evidence would
be destroyed. The court also concluded, citing Hudson, that
suppression was not an available remedy for a violation of the
knock-and-announce rule.
The defendant proceeded to enter a conditional guilty
plea, see Fed. R. Crim. P. 11(a)(2), reserving the right to appeal
the denial of his motion to suppress. The district court accepted
this plea and ordered the preparation of a presentence
investigation report.
At the disposition hearing, the district court
(Barbadoro, J.) set the defendant's base offense level at 36,
adjusted downward by three levels for acceptance of responsibility,
see USSG §3E1.1(a)-(b), and adjusted upward by three levels for the
defendant's role in the offense, see id. §3B1.1(b). This last
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adjustment was premised upon a determination that the defendant had
acted as a manager or supervisor in an extensive criminal activity.
These and other findings yielded an advisory guideline
sentencing range of 188 to 235 months. The court imposed a 200-
month incarcerative sentence. This timely appeal followed.
II. ANALYSIS
The defendant challenges both the denial of his motion to
suppress and the court's deployment of the upward role-in-the-
offense adjustment. We address these challenges separately.
A. Suppression.
In reviewing a district court's denial of a motion to
suppress, "we assess factual findings for clear error and evaluate
legal rulings de novo." United States v. Fagan, 577 F.3d 10, 12
(1st Cir. 2009). This is a deferential standard of review: "when
the district court chooses to draw a reasonable (though not
inevitable) inference from a particular combination of facts, that
inference is entitled to respect." United States v. Hughes, 640
F.3d 428, 434 (1st Cir. 2011) (citation and internal quotation
marks omitted).
The argument for suppression is anchored in a perceived
violation of the knock-and-announce rule. That rule, developed at
common law, is now codified in a federal statute. See 18 U.S.C.
§ 3109; see also Wilson v. Arkansas, 514 U.S. 927, 931-34 & n.3
(1995) (discussing the rule's common-law evolution). It "requires
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law enforcement officers to knock and announce their presence and
authority prior to effecting a non-consensual entry into a
dwelling." United States v. Pelletier, 469 F.3d 194, 198 (1st Cir.
2006).
The rule, however, is not absolute. It is well
established that, in certain circumstances, officers executing a
search warrant may be justified in declining to knock and announce
their presence. For instance, a failure will not violate the rule
when officers "have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the
destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394
(1997).
The parties joust over whether the no-knock entry into
the defendant's abode violated the rule. The defendant argues that
officers had no reason to believe that he presented any danger, as
was made manifest by the dispatch of the unarmed informant into the
house. The government counters that a no-knock entry was justified
by the exigencies of the situation. We need not sort out the
parties' conflicting positions about whether the entry into the
defendant's home transgressed the knock-and-announce rule.
Assuming arguendo that it did, suppression is not an available
remedy.
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The key precedent is Hudson. There, the Supreme Court
squarely addressed whether a violation of the knock-and-announce
rule might justify the exclusion of evidence seized. Noting that
exclusion of evidence "has always been [a] last resort, not [a]
first impulse," 547 U.S. at 591, the Court held the exclusionary
rule inapplicable to knock-and-announce violations, id. at 590-602.
In taking this position, the Court noted two independent
requirements for applying the exclusionary rule and explained why
a knock-and-announce violation could never meet those requirements.
To begin, the Court deemed but-for causation "a necessary
. . . condition for suppression." Id. at 592. In other words,
there must be a causal link between the constitutional violation
alleged and the discovery of the evidence seized. In the Court's
view, a violation of the knock-and-announce rule could never
achieve this benchmark; whether the officers knocked or not, the
evidence would inevitably be discovered during the subsequent
(valid) search. Id.
The Hudson Court set out a second condition for applying
the exclusionary rule: that the beneficial effects of exclusion
outweigh its social costs. Id. at 594-95. In explaining why
application of the exclusionary rule to knock-and-announce
violations would be costly, the Court worried about a possible
flurry of knock-and-announce litigation from prisoners seeking a
"get-out-of-jail-free card," the potential for increased violence
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against officers hesitant to enter unannounced for fear that
gathered evidence would be suppressed, and the potential for the
destruction of evidence by those inside the dwelling. Id. at 595.
As against these substantial costs, the only benefit from exclusion
would be the deterrence of police misconduct. Id. at 596. Because
the costs of using the exclusionary rule to remedy knock-and-
announce violations would so clearly outweigh any corresponding
benefits, the Court found this second requirement unmet. Id. at
599.
We have applied Hudson to affirm the denial of motions to
suppress in a pair of cases alleging knock-and-announce violations.
See United States v. Jones, 523 F.3d 31, 36-37 (1st Cir. 2008);
Pelletier, 469 F.3d at 198-201. The defendant contends that these
cases, and Hudson itself, are distinguishable because of the Rambo-
like manner of entry that the officers adopted here. This
contention is unavailing.
To be sure, the circumstances of this case differ from
Hudson, where officers knocked first, then waited "three to five
seconds" before entering the defendant's home in an unremarkable
manner. 547 U.S. at 588. Similarly, the circumstances differ from
both Jones and Pelletier, in which officers merely used hotel
passkeys to effect non-consensual entry into transient places of
abode. See Jones, 523 F.3d at 34; Pelletier, 469 F.3d at 197.
Here, by contrast, the entry was accomplished with an armored
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vehicle, a large complement of officers, noise-flash accompaniment,
and a formidable show of force. The defendant strives to persuade
us that the Hudson analysis is perforce different in this case
because police officers should be discouraged from employing such
aggressive and violent tactics when executing domestic search
warrants. There are two reasons why we find this argument
unconvincing.
For one thing, the circumstances to which the defendant
adverts do nothing to satisfy the requirement of but-for causation.
Even if the officers had knocked, announced, and politely entered
the defendant's dwelling, the incriminating evidence would have
been found when they conducted the search. The exclusionary remedy
is unavailable when, as in this case, there is no causal link
between the constitutional violation alleged and the evidence
discovered during the ensuing search. See Hudson, 547 U.S. at 592.
For another thing, we do not accept the defendant's claim
that an aggressive manner of entry materially alters the decisional
calculus employed in Hudson. The defendant insists that there are
compelling reasons to discourage officers executing search warrants
from engaging in "military assault" tactics and that those reasons
outweigh the social costs incident to employing the exclusionary
rule. But this is nothing more than an ipse dixit, and we fail to
see how the level of force used tips the Hudson balance. After
all, the Court recognized that the chief benefit of applying the
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exclusionary rule to knock-and-announce violations would be its
deterrent effect on police misconduct. See id. at 596. The Court
nevertheless concluded that the social costs of imposing exclusion
outweighed that benefit. Id. In cases alleging a failure to knock
and announce, the Court reasoned, police misconduct could be
effectively deterred through civil suits, thus negating the need to
invoke the extreme remedy of exclusion. Id. at 596-99. That the
officers in this case used shock-and-awe tactics does not undermine
this reasoning.2
In an effort to change the trajectory of the debate, the
defendant notes the Hudson Court's discussion of the important
interests safeguarded by the knock-and-announce rule: "protection
of human life and limb," "protection of property," and
"protect[ion] . . . of privacy and dignity." Id. at 594. He
speculates that the threat to those interests is greater in this
case than in the mine-run of cases due to the overly aggressive
manner of the officers' entry.
2
The defendant relies in part on Justice Kennedy's
concurrence to support a deviation from Hudson's categorical
approach. Justice Kennedy noted that Hudson "d[id] not address any
demonstrated pattern of knock-and-announce violations" and stated
that evidence of such a pattern on the part of law enforcement
might warrant application of the exclusionary remedy to deter that
conduct in the future. Hudson, 547 U.S. at 604 (Kennedy, J.,
concurring). Here, however, the defendant has presented no
evidence that the law enforcement agencies participating in the
search engaged in a pattern of knock-and-announce violations. The
defendant's reliance on Justice Kennedy's reasoning is, therefore,
misplaced.
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Whether or not this is so, it is beside the point. The
knock-and-announce rule does not implicate the interest in
"shielding . . . evidence from the government's eyes." Id. at 593.
That interest is suspended (in limited scope) once a valid warrant
has issued. Id. A defendant claiming harm to that interest (say,
harm from a warrantless search) may be entitled to exclusion as a
remedy. But where, as here, a defendant asserts injury from a no-
knock entry antecedent to an otherwise valid search, the remedies
afforded in civil suits can adequately redress the harm to the
interests that are affected. See id. at 596-99.
Although this issue is new to this court, we do not write
on a pristine page. Two other courts of appeals have indicated
that a no-knock entry, even when accompanied by significant force,
cannot justify the exclusion of evidence seized. See United States
v. Ankeny, 502 F.3d 829, 833, 835-38 (9th Cir. 2007) (holding that
defendant could not suppress evidence seized in an aggressive
search that caused him physical injury and property damage); see
also United States v. Watson, 558 F.3d 702, 704-05 (7th Cir. 2009)
(holding, by analogy to knock-and-announce cases, that use of
excessive force to search a car could not justify exclusion). We
join these other courts in concluding that the holding in Hudson is
categorical and that the amount of force used in effecting a no-
knock entry does not alter that reality.
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There is one loose end. At oral argument, the defendant
shifted gears. Through able counsel, he averred that the overly
aggressive manner of entry here may have violated the Fourth
Amendment protection against police use of excessive force in the
execution of a search warrant. See, e.g., United States v.
Ramirez, 523 U.S. 65, 71 (1998). Putting aside any concerns about
waiver or forfeiture, this argument fails on the merits.
It is common ground that courts can review a claim of
excessive force to determine if the police acted unreasonably in
carrying out a search and, thus, violated a defendant's Fourth
Amendment rights. See United States v. Boulanger, 444 F.3d 76, 84
(1st Cir. 2006). But even if the police infringe the Fourth
Amendment in this way, "the fruits of th[at] search are not subject
to suppression." Ramirez, 523 U.S. at 71. It follows inexorably
that whether the defendant characterizes the conduct of which he
complains as a violation of the knock-and-announce rule simpliciter
or as a violation of the knock-and-announce rule involving the use
of excessive force, an exclusionary remedy remains beyond his
reach.
B. Sentencing.
The defendant challenges only one integer in the
sentencing equation: the district court's use of a three-level
aggravating role adjustment. In reviewing this challenge, we
recognize that the district court is afforded considerable leeway
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in making fact-specific sentencing determinations. United States
v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Because a
determination about an individual's role in a particular crime is
inevitably factbound, we review such determinations deferentially.
United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (en banc). In
the absence of an error of law, such determinations will be set
aside only for clear error. Id.
The relevant sentencing guideline prescribes a three-
level upward adjustment if the defendant "was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive." USSG §3B1.1(b). An adjustment under this guideline
requires two steps: first, the sentencing court must find that the
underlying criminal activity involved more than five participants
or was otherwise extensive; and second, the court must find that
the defendant managed or supervised one or more of the other
participants in that activity. See United States v. Al-Rikabi, 606
F.3d 11, 14 (1st Cir. 2010) (discussing related guideline
provision).
Here, the defendant does not contest the lower court's
determination that the conspiracy involved more than five
participants or was otherwise extensive. Instead, he challenges
the court's second-step determination that he managed five
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participants overall and its subsidiary determination that he
managed three particular participants.
We need not linger long over this narrowly focused
challenge. The defendant does not deny that he managed at least
one other participant in the criminal enterprise,3 and even if he
managed just one, section 3B1.1(b) would nevertheless apply to him.
The short of it is that the aggravating role adjustment
described in section 3B1.1(b) requires only that a defendant manage
one other participant in the covered criminal activity.4 See USSG
§3B1.1, comment. (n.2) ("To qualify for an adjustment under this
section, the defendant must have been the organizer, leader,
manager, or supervisor of one or more other participants."); see
also United States v. Flores-De-Jesús, 569 F.3d 8, 34 (1st Cir.
2009) (stating that a defendant qualifies for an enhancement under
USSG §3B1.1(b) if "he exercised authority or control over another
participant" (citation and internal quotation marks omitted)).
Consequently, the district court did not err in applying the three-
level aggravating role adjustment in this case.
3
The defendant has not challenged the district court's
findings as to two of the five individuals that he was found to
have managed.
4
The policy reason behind this conclusion is sound. If a
defendant occupies a high-level position in an extensive criminal
activity, a stiffer punishment is warranted because of that
defendant's position, not because of the number of underlings that
he supervises.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm both the defendant's conviction and his sentence.
Affirmed.
— Concurring Opinion Follows —
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RIPPLE, Circuit Judge (Concurring). I join without
reservation the clear and comprehensive opinion of the court.
Unquestionably, after Hudson, the exclusionary rule is not an
appropriate remedy for violations of the knock-and-announce rule.
Nor is it an appropriate remedy if a court should determine that
the manner in which a warrant was executed violated the
reasonableness requirement5 of the Fourth Amendment. I write
separately only to emphasize that the confluence of the rule we
announce today and the prevailing methodological approach to the
resolution of qualified immunity issues raises the significant
possibility that conscientious law enforcement officers will be
deprived of needed judicial guidance concerning the manner in which
warrants must be executed.
Today’s decision makes it clear that criminal trials, and
appeals from those proceedings, rarely will yield judicial
determinations about the reasonableness of the force employed in
the execution of the warrant. Such determinations therefore will
occur most frequently in the adjudication of civil actions brought
under 42 U.S.C. § 1983 or under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In most,
although not all, the defense of qualified immunity will be
available. In such cases courts now are authorized to decide the
qualified immunity issue without reaching the constitutional
5
See United States v. Ramirez, 523 U.S. 65, 71 (1998).
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question. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). In
Pearson, the Court made clear that the two-step sequence for
resolving government officials’ qualified immunity claims,
previously formulated in Saucier v. Katz, 533 U.S. 194 (2001),6
should not be regarded as an inflexible requirement. Id. It is
now permissible for a court to determine that considerations such
as judicial economy and the danger of premature constitutional
adjudication counsel against resting its decision on constitutional
grounds. Id. Instead, the court first may determine that, at the
time they acted, the defendants’ actions did not violate settled
constitutional principles.
As the Court noted in Pearson, however, despite this new
flexibility in approach, reaching the constitutional question “is
often appropriate” and “often beneficial.” Id. Indeed, the Court
emphasized that “the Saucier Court was certainly correct in noting
that the two-step procedure promotes the development of
constitutional precedent and is especially valuable with respect to
questions that do not frequently arise in cases in which a
qualified immunity defense is unavailable.” Id.; see also Jones v.
Byrnes, 585 F.3d 971, 978-80 (6th Cir. 2009) (Martin, J.,
6
Under Saucier v. Katz, 533 U.S. 194, 200 (2001), a court
faced with a qualified immunity defense had to decide (1) whether
the facts alleged or shown by the plaintiff made out a violation of
a constitutional right, and (2) if so, whether that right was
clearly established at the time of the defendant’s alleged
misconduct.
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concurring).7 Cases involving the manner in which a search warrant
is executed certainly fall within this description. One might
argue that the constitutionality of a particular search or seizure
is “so factbound that the decision provides little guidance for
future cases,” Pearson, 555 U.S. at 237, and therefore it serves no
useful purpose to address the constitutional issue. However,
Fourth Amendment principles concerning reasonableness in the
execution of a warrant, no less than the legal rules for probable
cause and reasonable suspicion, “acquire content only through
application.” Ornelas v. United States, 517 U.S. 690, 697 (1996)
(holding de novo review appropriate for determinations of probable
cause and reasonable suspicion). This case-by-case adjudication
will not, and need not, yield “‘a highly sophisticated set of
rules, qualified by all sorts of ifs, ands, and buts . . . [which
is] literally impossible [to apply] by the officer in the field.’”
New York v. Belton, 453 U.S. 454, 458 (1981), abrogated on other
grounds by Arizona v. Gant, 556 U.S. 332 (2009), (quoting LaFave,
“Case-By-Case Adjudication” versus “Standardized Procedures”: The
Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141 (1974)) (internal
quotation marks omitted). It can develop, however, a body of law
7
Pearson v. Callahan, 555 U.S. 223, 236 (2009), acknowledged
that in such a situation–-where the constitutional issue might
escape resolution indefinitely-–a court well might determine that
the importance of providing needed constitutional guidance
outweighs rigid adherence to the general counsel of avoiding, when
possible, constitutional pronouncements.
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to provide meaningful guidance that will benefit both law
enforcement officers and civilians. Cf. Baird v. Renbarger, 576
F.3d 340, 344 (7th Cir. 2009) (electing to use the Saucier approach
in an excessive force case).
By contrast, a judicial approach that, as a matter of
course, does not reach the underlying constitutional issue will
deprive conscientious officers of the guidance necessary to ensure
that they execute their responsibilities in a manner compatible
with the Constitution. Here, an incomplete constitutional
landscape can present a practical problem of governance of
significant proportions. “When a person cannot know how a court
will apply a settled principle to a recurring factual situation,
that person cannot know the scope of his constitutional protection,
nor can a policeman know the scope of his authority.” Belton, 453
U.S. at 459-60. “If . . . constitutional rights are to function as
operational limits on government rather than mere figures of
rhetoric, there must be an adequate structure of enforcement.”
John C. Jeffries, Reversing the Order of Battle in Constitutional
Torts, 2009 Sup. Ct. Rev. 115, 117 (2009) (emphasis in original).
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