Youngbey v. March

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2012 Decided April 17, 2012

No. 11-7033

JERRY YOUNGBEY AND RUBIN BUTLER,
APPELLEES

v.

DARIN MARCH, DET., ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00596)

Carl J. Schifferle, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellants. With him on the briefs were Irvin B. Nathan,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.
James C. Cox argued the cause for appellees. With him on
the brief were Craig A. Cowie, Arthur B. Spitzer, and Frederick
V. Mulhauser. Elaine Goldenberg entered an appearance.
Before: GARLAND and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the court filed PER CURIAM.
Concurring opinion by Senior Circuit Judge EDWARDS.
 2

PER CURIAM: Ms. Jerry Youngbey and Mr. Rubin Butler
(“appellees”) brought an action arising under 42 U.S.C. § 1983
against a number of District of Columbia Metropolitan Police
Department (“MPD”) law enforcement personnel (“appellants”
or “officers”). Appellees’ complaint asserts that various officers
and their supervisors violated appellees’ Fourth Amendment
rights by planning and conducting a 4:00 a.m. search on a
warrant that did not authorize a nighttime search and breaking
and entering into appellees’ home without knocking and
announcing their presence. The complaint also alleges
additional Fourth Amendment claims and a variety of local law
claims – including assault, false arrest, trespass to chattels and
conversion, trespass to realty, negligence per se, and intentional
infliction of emotional distress – that are not at issue in this
appeal. The District of Columbia was also a defendant before
the District Court, but it has not joined in this appeal.
Following discovery, appellants moved for summary
judgment, asserting, inter alia, that they were entitled to
qualified immunity on the claims relating to the officers’
nighttime search and their alleged failure to knock and
announce. The District Court rejected appellants’ claims of
qualified immunity, finding that appellants’ failure to knock and
announce before entering into appellees’ home and the nighttime
search violated appellees’ clearly established rights under the
Fourth Amendment. Youngbey v. District of Columbia, 766 F.
Supp. 2d 197, 211, 217 (D.D.C. 2011). Appellants now seek
interlocutory review, claiming that the District Court erred in
denying them qualified immunity on the knock-and-announce
and nighttime search claims. Appellants contend that they
committed no constitutional violations in their execution of the
search warrant. They further claim that, even if their actions are
determined to be unconstitutional, they are nonetheless entitled
to qualified immunity because they did not violate clearly
established law.
 3

We agree that appellants are entitled to qualified immunity
because neither their no-knock entry of appellees’ home nor
their nighttime search violated “clearly established law.” See
Pearson v. Callahan, 555 U.S. 223, 243–44 (2009) (“An officer
conducting a search is entitled to qualified immunity where
clearly established law does not show that the search violated
the Fourth Amendment.” (citing Anderson v. Creighton, 483
U.S. 635, 641 (1987)). We are therefore constrained to reverse
the judgment of the District Court and remand the case.

I. Jurisdiction and the Applicable Standard of Review
This Court has jurisdiction to review the denial of qualified
immunity as a “final decision” under 28 U.S.C. § 1291. See
Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985) (holding that
a district court ruling denying qualified immunity, to the extent
that it turns on an issue of law, is subject to immediate appeal
under the collateral order doctrine). It is clear here that the
District Court’s denials of appellants’ requests for qualified
immunity “‘turn[] on . . . issue[s] of law.’” Int’l Action Ctr. v.
United States, 365 F.3d 20, 23 (D.C. Cir. 2004) (quoting
Mitchell, 472 U.S. at 530). For purposes of this appeal,
appellants do not contest that they failed to knock and announce
before entering into appellees’ home; and there is no dispute that
appellants executed the search warrant during the nighttime.
Therefore, the dispute before the court does not concern “which
facts the parties might be able to prove” in support of their
claims. Johnson v. Jones, 515 U.S. 304, 311 (1995). Rather, the
question here is whether appellees’ asserted rights were clearly
established when appellants executed the search warrant. This
involves issues of law which “must be resolved de novo on
appeal.” Elder v. Holloway, 510 U.S. 510, 516 (1994) (citation
omitted); see also Mitchell, 472 U.S. at 528 n.9; Estate of
Phillips v. District of Columbia, 455 F.3d 397, 402–03 (D.C.
Cir. 2006).
 4

II. The Legal Framework Governing Applications of
Qualified Immunity
We need not address on this appeal whether the officers’
no-knock, nighttime search violated appellees’ Fourth
Amendment rights. See Pearson, 555 U.S. at 236–38, 243. The
dispositive question here is whether, given the circumstances
presented by the undisputed record facts, a reasonable police
officer would have known that the failure to knock or the
nighttime search violated appellees’ clearly established Fourth
Amendment rights. In other words, the protection of qualified
immunity is available if “a reasonable officer could have
believed that [his or her actions were] lawful, in light of clearly
established law and the information the officers possessed.”
Wilson v. Layne, 526 U.S. 603, 615 (1999) (citation omitted).
The Supreme Court “adopted this criterion of ‘objective
legal reasonableness,’ rather than good faith, precisely in order
to ‘permit the defeat of insubstantial claims without resort to
trial.’” Behrens v. Pelletier, 516 U.S. 299, 306 (1996) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 819, 813 (1982)). “[I]n
practice . . . [the inquiry] turns on the objective legal
reasonableness of the action, assessed in light of the legal rules
that were clearly established at the time it was taken.” Wilson,
526 U.S. at 614 (citations omitted) (internal quotation marks
omitted). Qualified immunity thus “operates to ensure that
before they are subjected to suit, officers are on notice their
conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citation omitted) (internal quotation marks omitted). “This is
not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.” Wilson, 526 U.S. at 615
(citations omitted) (internal quotation marks omitted).
In determining whether the legal rules at issue are clearly
established, a court must look to “cases of controlling authority
 5

in [its] jurisdiction.” Id. at 617. If there is no such controlling
authority, then we must determine whether there is “a consensus
of cases of persuasive authority.” Id.; see also Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2084 (2011) (explaining that in the
absence of “controlling authority,” a “robust ‘consensus of cases
of persuasive authority’” is necessary to demonstrate clearly
established law (quoting Wilson, 526 U.S. at 617)). Since we
have found neither controlling precedent of the Supreme Court
or this circuit, nor a consensus of persuasive authority from our
sister circuits, we must reverse.
Because this appeal challenges the denial of appellants’
motions for summary judgment, “we are required to view all
facts and draw all reasonable inferences in favor of the
nonmoving part[ies],” appellees Youngbey and Butler.
Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam)
(citation omitted). We turn now to the relevant facts underlying
appellees’ Fourth Amendment claims.

III. The Material Facts
On July 16, 2008, Robert Mallory was murdered near the
1500 block of F Street, N.E., in Washington, D.C. In the weeks
following the murder, appellant March, the lead detective on the
case, gathered information that identified John Youngbey, the
son of appellee Youngbey, as the principal suspect. On August
13, 2008, Detective March submitted an application for warrants
to search three residences, including the home of appellees
Youngbey and Butler at 1312 Queen Street, N.E., in
Washington, D.C. March’s affidavit in support of the warrants
states that Mallory died from “multiple gunshot wounds to the
body.” Aff. in Support of an Application for Search Warrant
(“Aff.”) 1, reprinted in Joint App. (“J.A.”) 44. John Youngbey
is identified in the affidavit as having confessed to a third party
that he shot Mallory. According to the affidavit, the shooting
 6

was prompted by Mallory’s derogatory comment about the
girlfriend of one of John Youngbey’s friends. The affidavit also
states that the Court Services and Offender Supervision Agency
identified John Youngbey’s last home address as 1312 Queen
Street, N.E., and that a check of the Washington Area Law
Enforcement System’s computerized database listed 1312 Queen
Street, N.E., as John Youngbey’s current address.
Based on March’s affidavit, a judge of the Superior Court
of the District of Columbia found probable cause to believe that
certain evidence related to the murder could be found at 1312
Queen Street. The warrant authorizes the police to search for
“[f]irearms, ammunition, holsters, cleaning equipment, receipts,
photographs, [and] papers that document criminal activity and
that link the defendant to the address.” Superior Court of the
District of Columbia Search Warrant (“Warrant”), J.A. 43. A
preprinted portion of the warrant states that law enforcement
officers
ARE HEREBY AUTHORIZED within 10 days of the date
of issuance of this warrant to search in the daytime/at any
time of the day or night, the designated (person) (premises)
(vehicle) (object) for the property specified[.]
Id. No part of the reference to “daytime/at any time of the day
or night” on the warrant form is crossed out, circled, or
otherwise marked.
With this warrant in hand, Detective March sought the
assistance of the MPD’s Emergency Response Team (“ERT”).
Members of the ERT are consulted when a warrant is considered
“high risk.” The warrant for 1312 Queen Street was categorized
as high risk because police officers suspected that John
Youngbey had used an assault rifle to kill Mallory.
In their statements of undisputed facts submitted in support
of their motions for summary judgment, all but one of the
appellants averred that John Youngbey was suspected of using
 7

an assault rifle, assault weapon, assault gun, automatic weapon,
or a high-powered weapon to kill Mallory. See Defs.’ [Bruce
and Dumontt] Statement of Material Facts as to Which There Is
No Genuine Issue ¶ 1, 5, J.A. 334–35 (“automatic weapon” and
“high-powered weapon”); Def. Raymond Chambers’ Statement
of Material Facts as to Which There Is No Dispute ¶ 6, J.A. 215
(“high-powered assault rifle”); Def. [March’s] Statement of
Material Facts as to Which There Is No Dispute ¶ 9, J.A. 194
(“assault weapon”); Defs. Miller and Thompson’s Statement of
Material Facts as to Which There Is No Dispute ¶ 1, J.A. 286
(“assault weapon”); Def. Larry Scott’s Statement of Material
Facts as to Which There Is No Dispute ¶ 3, J.A. 210 (“assault
gun”). In addition, the undisputed facts indicate that before
undertaking the search of 1312 Queen Street, the executing
officers reviewed the affidavit in support of the warrant. See
Def. Raymond Chambers’ Statement of Material Facts as to
Which There Is No Dispute ¶ 10, J.A. 215.
Appellees have never contested the information contained
in the affidavit supporting the search warrant; nor have they
contested that appellants were familiar with that affidavit before
undertaking the search. In addition, the appellees do not contest
that before the appellant officers and supervisors conducted the
search, they had reason to believe that John Youngbey used an
assault rifle to kill Mallory. These facts are thus conceded by
appellees.
Following its usual practice, the ERT prepared an
“Operational Plan for (H[igh] R[isk] W[arrant])
Service.” E.R.T. Operational Plan, J.A. 49. The Operational
Plan does not specify the time of day for the search. Nor does
it mention that the search is for an assault rifle. John Youngbey
is mentioned in the Plan as one of “the persons involved in the
shooting.” Id. However, the portion of the Plan entitled
“SUSPECT INFORMATION” is blank, id. 50, and the Plan
does not otherwise characterize or describe John Youngbey.
 8

At approximately 4:00 a.m. on August 20, 2008, appellants
executed the search warrant at 1312 Queen Street. For purposes
of this appeal, appellants do not dispute that they failed to knock
or announce their presence before breaking the front window of
appellees’ home and entering the residence.

IV. The Knock-and-Announce Issue
1. The Knock-and-Announce Requirement and
Exceptions to the Rule
The Fourth Amendment “incorporates the common-law
requirement that police officers entering a dwelling must knock
on the door and announce their identity and purpose before
attempting forcible entry.” Richards v. Wisconsin, 520 U.S.
385, 387 (1997) (citation omitted); see also Hudson v. Michigan,
547 U.S. 586, 589 (2006) (describing the common law principle
as “ancient”). This rule protects against personal injury that
may result from violence by a surprised resident and the
destruction of property that may result from forced entry, and it
preserves “those elements of privacy and dignity that can be
destroyed by a sudden entrance.” Hudson, 547 U.S. at 594
(citations omitted). “These interests are not inconsequential.”
Richards, 520 U.S. at 393 n.5.
The knock-and-announce requirement is not inviolate,
however. The Supreme Court has recognized that it can “give
way ‘under circumstances presenting a threat of physical
violence,’ or ‘where police officers have reason to believe that
evidence would likely be destroyed if advance notice were
given.’” Id. at 391 (quoting Wilson v. Arkansas, 514 U.S. 927,
936 (1995)).
In amplifying this point, the Court in Richards held that,
[i]n order to justify a “no-knock” entry, the police must
have a reasonable suspicion that knocking and announcing
 9

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.
Id. at 394 (emphasis added). Thus, in determining whether the
manner of executing a search warrant is consistent with the
Fourth Amendment, neither the law enforcement officials nor
reviewing courts may “dispens[e] with case-by-case evaluation”
of the circumstances particular to the search at hand. Id. at 392.
As described in Richards, exceptions to the knock-and-
announce standard based on “general categor[ies] of criminal
behavior present[] at least two serious concerns.” Id. First, such
exceptions result in “considerable overgeneralization.” Id. at
393. In rejecting a Wisconsin decision allowing police officers
to dispense with the knock-and-announce rule whenever a
search warrant was issued in connection with a felony drug
investigation, the Court explained:
[W]hile drug investigation frequently does pose special
risks to officer safety and the preservation of evidence, not
every drug investigation will pose these risks to a
substantial degree. For example, a search could be
conducted at a time when the only individuals present in a
residence have no connection with the drug activity and
thus will be unlikely to threaten officers or destroy
evidence. Or the police could know that the drugs being
searched for were of a type or in a location that made them
impossible to destroy quickly. In those situations, the
asserted governmental interests in preserving evidence and
maintaining safety may not outweigh the individual
privacy interests intruded upon by a no-knock entry.
Wisconsin’s blanket rule impermissibly insulates these
cases from judicial review.
Id. (footnote omitted).
 10

The second serious concern motivating the Court’s
rejection of categorical exceptions to the knock-and-announce
rule is the ease with which “the reasons for creating an
exception in one category can . . . be applied to others.” Id. at
393–94. For example, in Richards, the Court explained that
Wisconsin’s rationale for categorically suspending the knock-
and-announce rule in felony drug cases could easily be extended
to “[a]rmed bank robbers” who “are, by definition, likely to have
weapons.” Id. at 394. “If a per se exception were allowed for
each category of criminal investigation that included a
considerable – albeit hypothetical – risk of danger to officers or
destruction of evidence, the knock-and-announce element of the
Fourth Amendment’s reasonableness requirement would be
meaningless.” Id. Consequently, the Court concluded that, “in
each case, it is the duty of a court confronted with the question
to determine whether the facts and circumstances of the
particular entry justified dispensing with the
knock-and-announce requirement.” Id. (emphasis added).
When assessing the particular circumstances of a case,
courts must apply an objective standard of reasonableness. See
Whren v. United States, 517 U.S. 806, 813 (1996). “Subjective
intentions play no role in ordinary . . . Fourth Amendment
analysis.” Id. Information tending to demonstrate “officers’
actual motives do not bear on our objective assessment of
reasonable suspicion.” United States v. Brown, 334 F.3d 1161,
1166 (D.C. Cir. 2003) (citations omitted).
2. Analysis
As we stated in United States v. Crippen, 371 F.3d 842
(D.C. Cir. 2004), “[t]here are . . . no bright-line rules or per se
exceptions to the knock and announce requirement; we must
therefore evaluate each claim of exigent circumstances upon ‘the
facts and circumstances of the particular entry.’” Id. at 845
(quoting Richards, 520 U.S. at 394). Unsurprisingly, appellants’
argument to this court focuses on all of the circumstances that
 11

presented a threat of physical violence during their execution of
the search warrant. See Appellants’ Br. at 22–23.
The main point is that the undisputed record in this case
belies appellees’ claim that the information possessed by the
officers and their supervisors consisted of nothing more than
“the mere suspected presence of an assault rifle” at 1312 Queen
Street. Appellees’ Br. at 43. What the undisputed factual record
shows is that the information in the possession of the officers
responsible for the no-knock entry of 1312 Queen Street
included the kind of particularized facts required by Richards.
It is uncontested that, before the search, each of the officers was
familiar with the lead detective’s affidavit supporting the
warrant. Thus, each knew that Mallory had died of multiple
gunshot wounds. They also knew that John Youngbey was
reported to have confessed to killing Mallory. Moreover, there
was no information conveyed to the officers to suggest that
anyone other than John Youngbey had shot Mallory. In
addition, the officers knew that a judicial officer had found
probable cause to believe that a search of 1312 Queen Street
would uncover a firearm and other evidence related to the
homicide. The officers also knew that the affidavit supporting
the judicial officer’s finding of probable cause stated that both
the Court Services and Offender Supervision Agency and the
Washington Area Law Enforcement System’s computerized
database listed 1312 Queen Street, N.E., as John Youngbey’s
residence.
It is also uncontested that, before they executed the
warrant, the officers had at least reasonable suspicion to believe
that the weapon used by John Youngbey was an assault rifle,
and that the firearm which was the object of the search warrant
was that assault rifle. Moreover, the officers and their
supervisors had reasonable suspicion to know, based on the
affidavit, that John Youngbey had been provoked to kill over
nothing more than a verbal slight directed at the girlfriend of
 12

another individual. Finally, the affidavit made clear that John
Youngbey did not kill in the heat of the moment; he drove away,
then returned with a weapon and killed Mallory.
In short, contrary to what appellees argue, before the
officers acted to break into appellees’ home, they and their
supervisors had more than enough particularized information to
avoid the evils of “overgeneralization” described in Richards.
There can be no question that the information that the officers
possessed prior to their execution of the warrant was ample and
particularized and, thus, sufficient to ensure that the officers’
actions could not be “impermissibly insulate[d] . . . from judicial
review.” Richards, 520 U.S. at 393.
In addition, the quantity and quality of the information that
the officers had before their no-knock entry gives real content to
the objective legal reasonableness inquiry that a court must
undertake in determining whether the officers violated
appellees’ Fourth Amendment rights. In other words,
appellants’ claims justifying their no-knock search reflect more
than just a “hypothetical” risk of danger to the officers. Id. at
394.
Kornegay v. Cottingham, 120 F.3d 392 (3d Cir. 1997), the
decision upon which appellees heavily rely, gives us no pause in
reaching this conclusion. In Kornegay, the plaintiff sued the
police after they had executed a no-knock entry of her home as
part of their search for a person, Shannon Selby, suspected of
being the accomplice to a murder. The search warrant was for
both Selby and the gun used to commit the murder. See id. at
394, 397. The Third Circuit concluded that there was at least a
question of fact as to whether the no-knock entry “violated
clearly established constitutional rights of which a reasonable
person would have been aware.” Id. at 400. The court’s
conclusion rested largely on the weakness of the evidence
implicating the alleged accomplice in the shooting, as well as
the absence of any evidence whatsoever tying him to the gun.
 13

Thus, the court explained, “the officers knew that Selby had not
shot the murder victim.” Id. In fact, “the officers had
conflicting evidence about whether Selby was even involved in
the murder.” Id. Moreover, the officers did not “have evidence
that [Selby] possessed the gun that was used.” Id. As the court
found, “[t]here [was] nothing in [the] record to suggest that the
officers had information that the murder weapon was in Selby’s
possession. He did not fire the fatal shot, he was not even
reported to have been armed at the scene, and nothing suggests
that the police had information that the shooter gave Selby the
weapon after the shooting.” Id. at 398.
Kornegay does little to assist appellees, because the more
detailed information in the possession of the police officers here
bears on the circumstances the police could expect to encounter
in searching 1312 Queen Street. In particular, in contrast to the
police in Kornegay, the officers here had probable cause to
believe that the shooter, not a possible accomplice, lived at the
residence they were searching. In addition, in contrast to the
police in Kornegay, the police here at least had some reason to
think that the shooter would be in possession of the weapon for
which they were searching. The officers here had information
that John Youngbey had asserted that he committed the murder,
and there was no information that the gun had ever been in the
possession of anyone but John Youngbey. In addition, in this
case, the information in the affidavit submitted in support of the
search warrant gave reasonable grounds to believe that the
shooter was easily provoked to violence and that, once
provoked, he was not inclined to back down. There was no such
evidence in Kornegay.
Appellants rely heavily on three decisions – United States
v. Ramirez, 523 U.S. 65 (1998), United States v. Geraldo, 271
F.3d 1112 (D.C. Cir. 2001), and United States v. Crippen, 371
F.3d 842 (D.C. Cir. 2004) – in support of their positions that
they committed no violations of appellees’ Fourth Amendment
 14

rights and that the law was not clearly established that a no-
knock entry in this particular situation was unconstitutional. In
each of the cited decisions, the court found that the searching
officers had reasonable suspicion of danger sufficient to justify
suspension of the Fourth Amendment’s knock-and-announce
requirement.
In Ramirez, a judge issued a no-knock warrant granting
permission to search Hernan Ramirez’s home. See 523 U.S. at
68. The subject of the search was a prisoner who had escaped
by slipping his handcuffs and knocking over a deputy sheriff.
Id. The prisoner had twice before attempted escape. The first
time, “he struck an officer, kicked out a jail door, assaulted a
woman, stole her vehicle, and used it to ram a police vehicle.
Another time he attempted escape by using a rope made from
torn bedsheets.” Id. The prisoner was also “reported to have
made threats to kill witnesses and police officers, to have
tortured people with a hammer, and to have said that he would
‘not do federal time.’” Id. (citation omitted). The no-knock
warrant was obtained on the basis of this information, plus an
initial siting of the escapee at the home of Ramirez by a
confidential informant and a second siting at the Ramirez home
by the informant and a law enforcement official. “Around this
time, the confidential informant also told authorities that
[Ramirez] might have a stash of guns and drugs hidden in his
garage.” Id. at 68–69. Relying on the fact that the subject of the
search “was a prison escapee with a violent past who reportedly
had access to a large supply of weapons” and had “vowed that
he would ‘not do federal time,’” the Court concluded that the
officers “certainly had a ‘reasonable suspicion’ that knocking
and announcing their presence might be dangerous to
themselves or to others.” Id. at 71.
In Geraldo, FBI agents entered a residence to execute a
search warrant without fully complying with the knock-and-
announce requirement. This court upheld the entry as
 15

reasonable, because the agents had information that the premises
they were searching – an active site for drug sales – had been
robbed, and a man residing there “had been seen wearing a
revolver, allegedly to protect the residence from additional
robberies.” 271 F.3d at 1118. Citing Ramirez, the court found
that the presence of a firearm, combined with circumstances
giving rise to a specific threat of violence to the executing
officers, excused the police from full compliance with the
knock-and-announce rule. “Because the agents had specific
knowledge that [a resident] kept a firearm to protect against
intruders and therefore might be quick to use it, the agents had
reason to suspect danger.” Id. The court concluded that because
“the officers’ belief that they were entering a dangerous
situation was objectively reasonable, they were not required to
knock and wait for a response.” Id.
In Crippen, this court upheld as reasonable a search in
which police officers knocked and announced, but waited only
four seconds before breaching the house. See 371 F.3d at 843.
In that case, the police had “learned from a confidential
informant that Crippen, a convicted felon, had several weapons
in his house,” including a sawed-off shotgun and two semi-
automatic pistols. Id. On the basis of this information, the
police obtained a search warrant. However, before the warrant
was executed, the confidential informant told the police that
Crippen was trying to acquire a rocket launcher. A few days
later, the informant reported that he had seen a rocket launcher
in Crippen’s residence. Id. Police officers executing the search
were briefed on how quickly this weapon of war could be armed
and how, if it were fired at an officer standing in a doorway, “it
would go straight through [him].” Id. (alteration in original)
(internal quotation marks omitted). Taking judicial notice of the
fact that “[a] rocket launcher (a/k/a a bazooka), is a high-
powered weapon designed for use against hardened targets –
such as armored tanks,” id. at 846 (citation omitted), the court
concluded that “[t]he unconventional nature of the weapon and
 16

the speed with which it could be loaded sufficed to create an
exigency that ripened almost immediately after the officers
knocked and announced their presence and purpose,” id.
(citation omitted). The court therefore concluded that the search
satisfied the requirements of the Fourth Amendment.
All that we need answer is whether the facts and reasoning
of these cases are close enough to the particular circumstances
of the search of 1312 Queen Street to warrant the conclusion
that a reasonable officer, possessing the information that
appellants here possessed, could reasonably (even if, arguendo,
mistakenly) decide that the danger posed by the situation
justified suspension of the knock-and-announce requirement.
To put it another way, we ask: Were the applicable legal rules
so clearly established that any reasonable officer would have
been aware that a no-knock entry of 1312 Queen Street would
violate the Fourth Amendment? We think not.
As noted above, in determining whether the Fourth
Amendment rights at issue are clearly established, a court must
look to “cases of controlling authority in [its] jurisdiction.”
Wilson, 526 U.S. at 617. Ramirez, Geraldo, and Crippen
involve circumstances that differ from the situation faced by
appellants in this case. However, these authorities are close
enough to the particular circumstances of the search at issue here
that we can say, with assurance, that the law was not clearly
established that a no-knock entry in this particular situation was
unconstitutional. In other words, these authorities certainly
“[do] not show that the search [here] violated the Fourth
Amendment.” Pearson, 555 U.S. at 243–44 (citation omitted).
And we can find no other “controlling authority” to support the
contrary conclusion. Therefore, having carefully considered the
controlling precedent of the Supreme Court and this circuit, as
well as the authority from our sister circuits, we agree with
appellants that their no-knock entry of appellees’ home did not
violate “clearly established law.”
 17

V. The Nighttime Search Issue
Appellees make the further claim that appellants’ nighttime
search violated their Fourth Amendment rights, because, given
the circumstances of this case, “[n]o reasonable officer could
have believed that the warrant authorized a nighttime search.”
Appellees’ Br. at 11. The District’s warrant form authorizes the
officers “to search in the daytime/at any time of the day or
night.” The judge who issued the warrant did not cross out,
circle, or otherwise mark either “in the daytime” or “at any time
of the day or night.” Appellees conclude that, “[u]nder clearly
established law, [this] silence cannot be read as approval of
nighttime execution.” Id. at 11–12. We can find no “clearly
established law” under the Fourth Amendment that supports
appellees’ position that, under the circumstances here, “[n]o
reasonable officer could have believed that the warrant
authorized a nighttime search.” Id. at 11.
There are several reasons why appellees’ argument fails.
First, as the Fourth Circuit noted in United States v. Rizzi, “[t]he
Supreme Court . . . has never held that the Fourth Amendment
prohibits nighttime searches.” 434 F.3d 669, 675 (4th Cir.
2006). We agree. Appellants acknowledge that “the timing of
a search might affect its reasonableness,” but they rightly argue
that “[t]he Fourth Amendment does not include a specific
protection against executing a warrant at night.” Appellants’ Br.
at 31.
Second, in an effort to advance their respective positions,
the parties point us to numerous cases addressing the validity of
nighttime searches on assorted warrants under a variety of
circumstances. Our review of these cases and our independent
research of the issue convinces us that there is no “clearly
established law” under the Fourth Amendment prohibiting
nighttime searches where the warrant is unmarked or silent as to
the authorized time of execution. In particular, we can find
neither “controlling authority” nor a “consensus of cases of
 18

persuasive authority,” Wilson, 526 U.S. at 617, to support
appellees’ claim that clearly established law under the Fourth
Amendment required the nighttime search here to be explicitly
authorized by the terms of the warrant. And we can find no such
applicable authority to support appellees’ claim that, given the
particular circumstances of this case, a reasonable officer would
have known that the nighttime search violated clearly
established law under the Fourth Amendment.
Third, we reject appellees’ argument that “no reasonable
officer could have believed that a nighttime search conducted
pursuant to a warrant authorizing only a daytime search was
consistent with the Fourth Amendment,” Appellees’ Br. at 12,
because this argument is based on a false premise. The warrant
in this case does not “authoriz[e] only a daytime search.”
Rather, the literal terms of the warrant authorize the officers “to
search in the daytime/at any time of the day or night,” with no
express limitation. Viewing this undisputed fact in the light
most favorable to appellees, the warrant is silent on the time of
execution. The language of the warrant certainly cannot be
construed to authorize only a daytime search.
Appellees urge that the search warrant in this case
contravenes the law of the District of Columbia and thus violates
their clearly established Fourth Amendment rights. On this
point, appellees contend that
under D.C. law, an issuing judge can authorize a nighttime
search only if the requesting officer requests one and
presents facts to establish one of three narrow statutory
justifications for nighttime execution. The requesting
officer in this case did neither. . . . [T]he constitutional
violation was searching a home at 4 AM without a warrant
authorizing the search (or exigent circumstances).
Appellees’ Br. at 12.
Appellees essentially assert that where local law informs a
 19

constitutional requirement – here, the principle that “warrants
must be issued by neutral, disinterested magistrates,” Dalia v.
United States, 441 U.S. 238, 255 (1979) (citation omitted) – we
should consider it. Relatedly, they urge that a reasonable officer
cannot generally rely on a warrant that is inconsistent with the
law, see Groh v. Ramirez, 540 U.S. 551, 561 & n.4 (2004), and
that the warrant itself sets the boundaries for a reasonable
search, see Horton v. California, 496 U.S. 128, 140–41 (1990).
As Appellees explain,

The Constitution demands that the reasonableness of
a search be decided “by a neutral and detached magistrate
instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” Johnson v.
United States, 333 U.S. 10, 14 (1948). The need for such
judicial supervision is nowhere more critical than when the
police engage in a search like this one – a destructive 4 AM
home invasion.
....
Reading the default form as allowing a nighttime
search, rather than requiring specific authorization from the
neutral judge, undermines the role of the judge in
supervising when a nighttime search is warranted and in
preventing unnecessarily intrusive searches. As the facts
of this case demonstrate, reading the default form to allow
a nighttime search would allow the District’s officers
routinely to evade this critical review, just as they did in
this case.
Appellees’ Br. at 23–24.
There are two problems with this argument, such that we
cannot say that Appellees’ understanding of the law accurately
captures the “clearly established law” under the Fourth
Amendment. First, the Supreme Court has held that the
 20

protections and strictures of the Fourth Amendment are not
defined by local law. See Virginia v. Moore, 553 U.S. 164, 174
(2008) (“A State is free to prefer one search-and-seizure policy
among the range of constitutionally permissible options, but its
choice of a more restrictive option does not render the less
restrictive ones unreasonable, and hence unconstitutional.”); see
also Dalia, 441 U.S. at 257 (“Nothing in the language of the
Constitution or in this Court’s decisions interpreting that
language suggests that . . . search warrants . . . must include a
specification of the precise manner in which they are to be
executed.”).
Second, even assuming, arguendo, that state-law
protections control our Fourth Amendment inquiry, D.C. law on
nighttime searches is, at best, unclear. The D.C. Code provides
that “in the absence of express authorization in the warrant
pursuant to section 23-521(f)(5), [a search warrant] shall be
executed only during the hours of daylight.” D.C. CODE §
23-523(b) (2001 & Supp. 2011). Section 23-521(f)(5), in turn,
stipulates that the warrant
shall contain . . . a direction that the warrant be executed
during the hours of daylight or, where the judicial officers
have found cause therefor, including one of the grounds set
forth in section 23-522(c)(1), and authorization for
execution at any time of day or night.
Id. § 23-521(f)(5).
These statutory provisions do not address the circumstances
that we face here, i.e., a situation in which the terms of the
warrant authorize the officers “to search in the daytime/at any
time of the day or night,” without any express limitations.
Furthermore, section 23-521(f)(5) apparently contains a
typographical error, substituting “and authorization” for “an
authorization.” See D.C. CODE § 23-521(f)(5) (Supp. V 1978)
(“an authorization”); id. (1981) (“and authorization”). We
 21

understand the correct words to be “an authorization,” and the
parties agree. Regardless, the error only contributes to the
statute’s lack of clarity. The main point, however, is that an
alleged violation of local law is not dispositive of the Fourth
Amendment issue.
We have little trouble in concluding that there is no clearly
established law under the Fourth Amendment that prohibits the
nighttime execution of a warrant, where, as here, the warrant
does not prohibit such a search. Neither controlling precedent
from the Supreme Court or this circuit, nor a consensus of
persuasive authority from our sister circuits show that the
nighttime search here violated the Fourth Amendment.

VI. Conclusion
Appellants are entitled to qualified immunity because
neither their no-knock entry of appellees’ home nor their
nighttime search violated “clearly established law.” The
judgment of the District Court on these issues is hereby
reversed, and the case is remanded for trial on the remaining
issues.
 1

EDWARDS, Senior Circuit Judge, concurring: I agree with
my colleagues that the question to be addressed in this appeal is
not whether the officers’ no-knock, nighttime search violated
appellees’ Fourth Amendment rights, but, rather, whether the
officers’ actions violated clearly established law. I write
separately merely to highlight what I believe to be some salient
matters related to the knock-and-announce issue.
I think it is a close question whether appellants’ failure to
knock and announce their presence before entering appellees’
home violated appellees’ Fourth Amendment rights. I do not
believe, however, that appellants’ actions violated clearly
established law.
As the per curiam opinion makes clear, the Supreme
Court’s decision in Richards v. Wisconsin, 520 U.S. 385 (1997),
is crucially important to the disposition of the no-knock issue.
In Richards, the Court explicitly rejected reliance on categorical,
per se, or blanket rules to justify exceptions to the general
standard that police officers executing a search warrant must
knock on the door and announce their identity and purpose
before attempting forcible entry of a dwelling. See id. at
387–88.
The appellants responsible for the no-knock entry into
appellees’ home claim that they were justified in their actions
because of the threat of physical violence involved in executing
the warrant at 1312 Queen Street. Relying primarily on United
States v. Ramirez, 523 U.S. 65 (1998), United States v. Geraldo,
271 F.3d 1112 (D.C. Cir. 2001), and United States v. Crippen,
371 F.3d 842 (D.C. Cir. 2004), appellants argue that they
committed no constitutional violations in the execution of the
search warrant. In the alternative, they argue that “the law was
not clearly established that a no-knock entry in this particular
situation was unconstitutional.” Appellants’ Br. at 27.
Appellees counter that appellants’ asserted reasonable
 2

suspicion of danger is not sufficiently particularized, but rather
rests on nothing more than a prohibited categorical rule or
procedure. Appellees contend that “[g]eneralized claims that a
murder suspect, a drug dealer, or an armed robber might be
violent and be at the home to be searched, or that the item
sought is a firearm, are insufficient.” Appellees’ Br. at 13.
Relying primarily on Richards, appellees argue that the law
prohibiting reliance on such blanket rules is so clearly
established that any reasonable officer would have been aware
that invocation of such an exception violated the Fourth
Amendment. Appellees claim that
[t]he District takes the position that a search for a gun in a
murder suspect’s home always justifies a no-knock entry.
Indeed, at times, the District goes [so] far as to suggest that
the mere suspected presence of an assault rifle, with nothing
more, would justify the failure to knock and announce. It
is impossible to square that position with controlling
Supreme Court precedent.
Appellees’ Br. at 43 (citations omitted).
In further support of their position, appellees point to cases
from several of our sister circuits holding that information
regarding the presence of a firearm in the place to be searched
is, without more, insufficient to excuse a failure to adhere to the
knock-and-announce requirement. See United States v. Moore,
91 F.3d 96, 98 (10th Cir. 1996); United States v. Bates, 84 F.3d
790, 795 (6th Cir. 1996); United States v. Marts, 986 F.2d 1216,
1218 (8th Cir. 1993). Finally, in support of their argument,
appellees rely heavily on Kornegay v. Cottingham, 120 F.3d 392
(3d Cir. 1997).
As explained in the per curiam opinion, exceptions to the
knock-and-announce rule based on general categories of
criminal behavior are prohibited by Richards. Indeed, in
Crippen, this court made it clear that
 3

[t]here are . . . no bright-line rules or per se exceptions to
the knock and announce requirement; we must therefore
evaluate each claim of exigent circumstances upon “the
facts and circumstances of the particular entry.”
371 F.3d at 845 (quoting Richards, 520 U.S. at 394).
Thus, there can be little doubt that, under Richards, the
mere presence of a firearm, without more, cannot justify a no-
knock entry. Were it otherwise, the police would always be free
to execute a no-knock entry whenever the crime under
investigation is possession of a firearm. Richards explicitly and
unequivocally prohibits such categorical exceptions to the
knock-and-announce requirement. Moreover, as appellees point
out, the cited decisions from the Sixth, Eighth and Tenth
Circuits endorse this principle, as do decisions from the Fourth
and Ninth Circuits. See Gould v. Davis, 165 F.3d 265, 272 (4th
Cir. 1998); United States v. Fluker, 543 F.2d 709, 717 (9th Cir.
1976).
Appellants do not seriously contest appellees’ contentions
regarding Richards. In their argument to this court, appellees do
not rely exclusively on the fact that the crime under
investigation was an armed murder or that the object of the
search was a firearm. Rather, they focus on all of the
circumstances that posed a threat of violence during the
execution of the warrant. See Appellants’ Br. at 22–23.
Appellants note, in passing, that there is a statement in Crippen
asserting that Geraldo “explicitly reserved the question whether
the mere presence of a gun could be sufficient” to excuse police
from the knock-and-announce requirement. Crippen, 371 F.3d
at 845 (citing Geraldo, 271 F.3d at 1118). This is a curious
assertion, because it runs directly counter to the Supreme
Court’s holding in Richards and finds no support in Geraldo. In
any event, appellants certainly do not rest their case on this
misplaced dicta. The law is exactly as indicated elsewhere in
Crippen: “There are . . . no bright-line rules or per se exceptions
 4

to the knock and announce requirement.” 371 F.3d at 845
(citing Richards, 520 U.S. at 394).
On the record before us, a court might agree with appellees
that appellants’ no-knock entry contravened the strictures of the
Fourth Amendment. However, for the reasons stated in the per
curiam opinion, I agree that, before the officers entered into
appellees’ home, they had enough particularized information to
avoid the evils of “overgeneralization” noted in Richards. See
520 U.S. at 393. The record in this case is thus unlike a
situation that might be presented if officers sought to justify a
failure to follow the knock-and-announce requirement on little
more than the type of criminal investigation involved.
Appellees rely heavily on Kornegay v. Cottingham, 120
F.3d 392 (3d Cir. 1997), in support of their claim that
appellants’ actions in this case abridged the commands of
Richards. The warrant in Kornegay authorized a search for a
person, Shannon Selby, who was suspected of being the
accomplice to a murder, and for the gun used to commit the
murder. See id. at 394, 397. The warrant was issued on the
strength of police information indicating that the plaintiff’s
home was the residence of the accomplice. Id. at 397–98. The
district court held that a no-knock entry was justified because
the “warrant was for a first degree murder suspect who was a
known drug dealer with previous arrests for felony offenses
involving the use of a weapon, and the gun used in the murder
had not been recovered.” Id. at 398 (citation omitted).
As described in the per curiam, the Third Circuit reversed.
Relying primarily on Richards, the Third Circuit concluded that
“the reasons offered in support of [the no-knock] search merely
‘consisted of generalities that bore no relation to the particular
premises being searched or the particular circumstances
surrounding the search.’ That conclusion suggests either that the
officers’ concern that Selby was armed and dangerous was
unreasonable or that the officers employed a generalized
 5

procedure that was unreasonable as applied to Kornegay’s
home.” Id. (citation omitted). Citing Richards, the court
concluded that “the risks generally surrounding murder
investigations did not necessarily create an exigent circumstance
in this case.” Id. at 399.
As the per curiam opinion points out, however, Kornegay
does not advance appellees’ position, because, in contrast to
Kornegay, the officers in this case had particularized
information bearing on the danger that the police could
encounter in executing the search warrant, including a
reasonable suspicion to believe that John Youngbey had used an
assault weapon to shoot the victim multiple times. It is quite
clear from the per curiam opinion that the sum total of the
circumstances faced by the officers in this case supports
inferences of risk greater and more specific than those
“generally surrounding murder investigations.”
Appellees also argue that appellants’ reliance on United
States v. Ramirez, 523 U.S. 65 (1998), United States v. Geraldo,
271 F.3d 1112 (D.C. Cir. 2001), and United States v. Crippen,
371 F.3d 842 (D.C. Cir. 2004) is misplaced. There is something
to this argument. An assault rifle is a formidable weapon, but it
is not a weapon of war capable of breaching a hardened target
– such as an armored tank – as was the bazooka at issue in
Crippen. Moreover, there is no evidence that the officers here
were aware of specific threats of violence of the sort that the
police searching the premises in Geraldo faced. And appellants
do not suggest that John Youngbey had anything approaching
the violent history toward law enforcement personnel that the
escapee in Ramirez exhibited. Indeed, appellants’ Operational
Plan does not characterize John Youngbey as posing a particular
risk to the searching officers. Nonetheless, appellants assert that
Ramirez, Geraldo, and Crippen conclusively support their claim
that their no-knock search did not violate appellants’ Fourth
Amendment rights. It is far from clear to me that appellants’
 6

actions did not violate appellees’ Fourth Amendment rights, but
I agree with the per curiam opinion that we need not reach this
matter.
Ramirez, Geraldo, and Crippen involve circumstances that
differ from the situation faced by appellants in this case, and
thus may not support appellants’ contention that they committed
no violation of appellees’ Fourth Amendment rights.
Nonetheless, I agree with my colleagues that “these authorities
are close enough to the particular circumstances of the search at
issue here that we can say, with assurance, that the law was not
clearly established that a no-knock entry in this particular
situation was unconstitutional.”