IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34589
STATE OF IDAHO, )
) Boise, February 2009Term
Plaintiff-Respondent, )
) 2009 Opinion No. 49
v. )
) Filed: April 6, 2009
KAY JAMES KOFOED, )
) Stephen W. Kenyon, Clerk
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District of the State of Idaho,
in and for Payette County. The Hon. Stephen W. Drescher, District Judge.
The judgment of the district court is affirmed.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Justin M. Curtis
argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Daniel W. Bower
argued.
EISMANN, Chief Justice.
This is an appeal from the denial of a motion to suppress alleging that law enforcement
officers executing a search warrant did not wait long enough after knocking and announcing their
authority and purpose. We affirm the district court‟s denial of the motion to suppress.
I. FACTS AND PROCEDURAL HISTORY
Based primarily upon information that he obtained on October 24 and 30, 2006,
Detective Sergeant Huff of the Fruitland Police Department had probable cause to believe that
methamphetamine was being manufactured in outbuildings associated with a workshop in which
Kay Kofoed worked and resided. On November 2, 2006, Detective Huff obtained a warrant to
search the workshop and outbuildings for controlled substances including methamphetamine; for
materials used to store, conceal, or package controlled substances; for any documentary or
electronically recorded records of transactions in or a possessory interest in controlled
substances; for drug paraphernalia; for indicia of ownership, occupancy, or control of the
premises to be searched; and for any document suggesting the manufacture, sale, distribution, or
use of any unauthorized controlled substances.
On November 3, 2006, at about 1:00 p.m., city and county law enforcement officers
executed the search warrant. Two officers walked up to the door of the workshop and knocked
on it. After waiting about two seconds, one of them announced, “Sheriff‟s Office, search
warrant!” They then heard a sound like something was dropped or kicked and then footsteps
moving quickly away from the door. The announcing officer opened the unlocked door and
entered the workshop, where they encountered Kofoed. The time lapse between the officer
announcing his authority and purpose and his opening of the door was about four seconds.
Based upon evidence found during the search, Kofoed was charged with felony
possession of methamphetamine. He moved to suppress the evidence found during the search on
several grounds, including that the officers‟ failure to wait longer after knocking and announcing
their authority and purpose violated Idaho‟s “knock and announce” statutes1 and the Fourth
Amendment to the United States Constitution. The district court held that there were exigent
circumstances that justified any alleged violation of the knock and announce requirement. The
court found that when the officers “heard sounds that indicated people were quickly moving
away from the door, it was reasonable for them to believe that evidence was being, or was about
to be, destroyed, thereby creating exigent circumstances that justified the officers‟ hurried entry
into the building.” The court denied Kofoed‟s motion to suppress.
After the denial of the motion to suppress, Kofoed entered into a plea agreement under
which Kofoed agreed to plead guilty and reserved his right to appeal the denial of his motion to
suppress. He later pled guilty to possession of methamphetamine and was sentenced to four
years in the custody of the Idaho Board of Correction, with one and one-half years fixed and two
and one-half years indeterminate. The court retained jurisdiction for one hundred eighty days.
Kofoed then timely appealed.
1
Idaho Code § 19-4409 provides:
Service of warrant – Breaking open doors. The officer may break open any outer or
inner door or window of a house, or any part of a house, or any thing therein, to execute the
warrant, if, after notice of his authority and purpose, he is refused admittance.
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II. ANALYSIS
The issue on appeal is whether the officers violated the Fourth Amendment to the
Constitution of the United States by failing to wait longer before entering the workshop to
execute the search warrant.2 In Wilson v. Arkansas, 514 U.S. 927 (1995), the United States
Supreme Court held that the Fourth Amendment incorporates the common-law rule requiring
officers entering a dwelling to knock on the door and announce their identity and purpose before
attempting forcible entry. The interests protected by the rule are avoiding violence that may
result from a resident being surprised by an unannounced entry, giving the resident an
opportunity to avoid damage to the property that could result from forced entry, and protecting
privacy by giving residents an opportunity to prepare themselves for the police entry. Hudson v.
Michigan, 547 U.S. 586, 594 (2006).
“In order to justify a „no-knock‟ entry, the police must 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 showing
required for a reasonable suspicion is not high; it is less than probable cause. Id.
Even if there are no circumstances justifying a “no-knock” entry when the police arrive,
those circumstances may develop after the officers knock and announce their identity and
purpose. United States v. Banks, 540 U.S. 31, 38 (2003). “[T]here is no reason to treat a post-
knock exigency differently from the no-knock counterpart.” Id. at 40. Once they have knocked
and announced, the officers could reasonably suspect that persons in the premises would know of
the officers‟ presence and purpose. The issue then becomes what would be a reasonable waiting
time before making a forcible entry. Id. at 39. That determination is made based upon the facts
known to the police at the time, not upon 20/20 hindsight. Id.
2
In his motion to suppress, Kofoed stated that the basis of the motion was, “The evidence was seized
pursuant to an invalid search warrant and in violation of Defendant‟s Constitutional rights as more fully set out in
the attached Memorandum in Support of Motion to Suppress.” In his supporting memorandum, Kofoed wrote that
he brought the motion to suppress “for violation of his Fourth and Fourteenth Amendment rights under the United
States Constitution and his rights under Idaho Constitution Article I, Section 17.” With respect to the alleged knock-
and-announce violation, Kofoed cited the Fourth Amendment and stated that the officer‟s conduct violated “this
State‟s knock and announce statute.” His only other mention of the Idaho Constitution in his memorandum was in
support of his argument that the search warrant was invalid. Kofoed did not argue below that either Article I, § 17,
of the Idaho Constitution or Idaho Code § 19-4409 provide greater protection than the Fourth Amendment.
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If there are exigent circumstances, a reasonable wait time is not determined by how long
it would take someone in the residence to answer the door after the police knocked. Id. at 40. If
the police claim there was an exigency justifying their actions, then the inquiry is whether the
police had reasonable suspicion that the exigency existed and, if so, what wait time would be
reasonable in light of that exigency. Id. at 37-40. “Once the exigency ha[s] matured, the officers
[are] not bound to learn anything more or wait any longer before going in, even though their
entry entail[s] some harm to the building.” Id. at 40.
In this case, the exigency claimed was that the persons present in the workshop may
destroy evidence. Thus, the inquiry is whether the officers could reasonably suspect that
someone in the workshop may attempt to destroy evidence and how long the officers could
reasonably suspect it would take to do so. Id. Because the exigency justifies an entry to prevent
the destruction of evidence, a reasonable wait time would be less than the time the officers
reasonably suspected it would take to do so. In denying the motion to suppress, the district court
found as follows:
In this case the warrant was executed close to noon, when people would normally
be up and about. However, the officers could not be sure of the amount of drugs
or other evidence that would be present. Thus, when they heard sounds that
indicated people were quickly moving away from the door, it was reasonable for
them to believe that evidence was being, or was about to be, destroyed, thereby
creating exigent circumstances that justified the officers‟ hurried entry into the
building. As the officers‟ entry was justified based on the exigent circumstances,
the evidence discovered as a result thereof should not be excluded.
After the officers knocked and announced that they were from the sheriff‟s office and had
a search warrant, they heard people moving quickly away from the door. They could reasonably
suspect that those persons would attempt to destroy evidence. The purpose of the search warrant
was to obtain controlled substances, including methamphetamine, and other evidence related to
the manufacture, use, or sale of that drug. The officers could reasonably suspect that the time it
would take to dispose of or destroy evidence would be quite short. For example, in Richards v.
Wisconsin, 520 U.S. 385 (1997), several police officers went to the defendant‟s motel room to
execute a search warrant for drugs and related paraphernalia. The lead officer was dressed as a
maintenance man, but one of the officers accompanying him was in uniform. The lead officer
knocked on the door and stated he was a maintenance man. With the chain still on the door, the
defendant cracked it open. When he saw the officer in uniform standing behind the lead officer,
the defendant slammed the door shut. The officers waited two or three seconds before kicking
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and ramming the door to force it open. As they were kicking the door in, they announced that
they were police officers. When they finally broke into the room, they saw the defendant
attempting to escape through a window. The Supreme Court held that the officers‟ no-knock
entry into the motel room did not violate the Fourth Amendment. It reasoned, “These actual
circumstance – petitioner‟s apparent recognition of the officers combined with the easily
disposable nature of the drugs – justified the officers‟ ultimate decision to enter without first
announcing their presence and authority.” 520 U.S. at 396.
Kofoed argues that there was no exigency in this case because the officers suspected that
he was manufacturing methamphetamine, and it would take longer to dispose of evidence of
manufacturing than to dispose of the drug itself. He also argues that they had no knowledge of
the quantity of drugs on the premises and therefore would not know how long it would take to
dispose of all of the drugs. These arguments are unavailing for two reasons. First, the
manufacturing was suspected to be occurring in the outbuildings, not in the workshop where
Kofoed lived. More importantly, “[s]uspects have no constitutional right to destroy or dispose of
evidence.” Kerr v. California, 374 U.S. 23, 39 (1963). The exigency permitting noncompliance
with the knock-and-announce rule is not intended merely to prevent the destruction of every
shred of evidence located in the premises. The police do not have to wait at the door in order to
give the suspect time to destroy some of the evidence. In stating this exigency, the Supreme
Court wrote that it is not necessary to knock and announce “if there is „reason to believe that
evidence would likely be destroyed if advance notice were given.‟” Hudson v. Michigan, 547
U.S. 586, 589 (2006). It did not quantify the amount of evidence that there must be reason to
believe would likely be destroyed.
In this case, the district court did not err in denying the motion to suppress. We therefore
affirm the judgment.
IV. CONCLUSION
The judgment of the district court is affirmed.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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