State v. Anyan

No. 02-639

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 395

STATE OF MONTANA,

Plaintiff and Respondent,

v.

TANYA MARIE ANYAN,
JAY CLEVELAND, AND TROY KLEIN,

Defendants and Appellants.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders, Cause No. DC 00-44, 48, and 50
The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Kristina Guest, Appellate Defender Office, Helena, Montana (attorney for
Klein); John O. Putikka, Attorney at Law, Thompson Falls, Montana
(attorney for Anyan); Carolyn S. Gill, Attorney at Law, Plains, Montana
(Attorney for Cleveland)

For Respondent:

Honorable Mike McGrath, Montana Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana; Robert Zimmerman, Sanders
County Attorney, Thompson Falls, Montana

Argued: September 11, 2003
Submitted: September 25, 2003
Decided: December 30, 2004

Filed:

__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.
¶1 Appellants Tanya Marie Anyan, Jay Cleveland, and Troy Klein were each convicted

of drug-related felonies in the District Court for the Twentieth Judicial District, Sanders

County, after pleading guilty to the charges pursuant to a plea agreement. We reverse and

remand for further proceedings consistent with this Opinion.

¶2 We address the following issue on appeal: Whether law enforcement officers’ no-

knock entry into Appellants’ house to execute a search warrant violated Appellants’

constitutional rights to privacy and to be free from unreasonable searches and seizures.

Factual and Procedural Background

¶3 In late May 2000, Officer Christopher Nichols of the Thompson Falls Police

Department was assigned to investigate suspected illegal drug activity occurring at a rented

house in Thompson Falls. During the course of the investigation, Officer Nichols determined

that the occupants of the house were involved in operating a clandestine methamphetamine

lab. Hence, on July 11, 2000, Officer Nichols requested the assistance of Sergeant Allen

Bardwell, an officer with the Kalispell Police Department and team leader of the Kalispell

SWAT team, in serving a search warrant. After meeting with Officer Nichols and learning

that the house to be searched was a large structure consisting of three levels with numerous

rooms and that it might be occupied by as many as fifteen individuals, Sergeant Bardwell

contacted the Flathead County Sheriff Department’s SWAT team for assistance. The

commander of the Flathead County SWAT team, Undersheriff Chuck Curry, agreed to assist

in the service of the warrant.

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¶4 On July 24, 2000, Officer Nichols obtained a warrant to search the residence. In his

application for the search warrant, Officer Nichols related that “out of the ordinary traffic”

was seen coming and going from the residence and that a great number of the vehicles were

from Washington state. Officer Nichols also stated that he checked the license plates on

three of the vehicles that he had seen at the residence. One of them was registered to Klein.

Officer Nichols then checked with Spokane County and discovered that Klein had been

charged in the past with committing drug offenses. According to Officer Nichols, Klein also

had three active felony warrants.

¶5 Officer Nichols also related in his search warrant application that several other

individuals that had been seen near the residence had been charged with drug offenses. In

addition, one of the vehicles seen at the residence was registered to an individual who had

felony convictions for burglary and child rape. Officer Nichols also related that during his

investigation, he discovered that there was a surveillance camera located in the second story

east window of the residence and that it appeared to be pointed at the driveway.

¶6 Officer Nichols had discovered during the course of his investigation that an

individual matching Klein’s description had purchased ammunition from a local hardware

store. While he did not include this information in the application for the search warrant,

Officer Nichols did share this information with Sergeant Bardwell and Undersheriff Curry.

However, the two-and-a-half month investigation, which included surveillance of the home,

had yielded no observation or reports of weapons sighted in the home or in the possession

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of any of the individuals in the home. Officer Nichols also discovered that Klein had a

warrant for his arrest in connection with a nonviolent felony parole violation.

¶7 On the night of July 25, 2000, the two SWAT teams, totaling fifteen men, and officers

from several other law enforcement agencies converged on Thompson Falls at approximately

1:45 a.m. Officer Nichols, Sergeant Bardwell, and Undersheriff Curry discussed the manner

of executing the search warrant, including the question of whether the officers should knock

and announce their presence and purpose before entering the house. They decided that the

SWAT teams should enter the house at 4:00 a.m. without knocking and announcing.

¶8 On the morning of the raid, while the SWAT teams and other officers convened at the

Thompson Falls Police Department for briefing, Officer Nichols ordered two officers to

conduct surveillance on the residence from an upstairs bedroom of the house across the

street. Officer Shawna Reinschmidt was watching the activities in the front of the house at

2:20 a.m. when a car, which had left the house about five minutes earlier, returned, and the

male driver got out of the car and yelled at everyone to get inside and turn off the lights.

Officer Reinschmidt reported her observations to the SWAT team assembled at the police

department. Fearing that their presence may have been detected, the officers decided not to

wait until 4:00 a.m. to execute the warrant. Officer Reinschmidt continued to observe the

house and although she saw some movement in the kitchen, she later testified that her

observations were entirely consistent with the occupants preparing to retire for the night.

¶9 Law enforcement officers executed their no-knock raid at 3:00 a.m. As the officers

approached the house they observed that it was quiet and most of the lights were off. None

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of the officers detected any activity or heard anything consistent with attempts to escape or

resist arrest. There was no indication that any of the occupants had detected the officers’

presence or anticipated the raid. There was also no indication that the house had been

barricaded or booby trapped.

¶10 The officers approached the home from the west and the north, outside of the range

of the surveillance camera located on the east side of the house. The Kalispell SWAT team

was assigned to enter the house at the upper level from an outside stairway and the Flathead

County SWAT team was assigned to enter the house from the ground floor. At least six

officers from the Kalispell SWAT team entered the top floor by using a steel ram to break

the doorjamb. They confronted four of the occupants of the house who were in various

stages of sleep and preparation for sleep. Another seven or eight officers from the Flathead

County SWAT team entered the house through the downstairs kitchen door confronting the

two occupants residing in that portion of the house. Another five to ten officers surrounded

the house. The officers did not knock and announce their presence prior to entering the

house.

¶11 The six occupants of the house were all arrested, removed from the house,

decontaminated and given clean jail clothing. Officers from the Criminal Investigation

Division of the Montana Department of Justice then entered the house to collect evidence,

disassemble the meth lab and decontaminate the area.

¶12 Appellants were each charged in separate proceedings with conspiracy to manufacture

dangerous drugs; criminal production or manufacture of dangerous drugs; criminal

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possession of dangerous drugs; and possession of dangerous drugs with intent to sell.

Appellants each filed motions to suppress the evidence seized during the search of the

residence, based in part on the officers’ failure to knock and announce their presence prior

to entering the house to execute the search warrant. The District Court denied the motions

without an evidentiary hearing.

¶13 Cleveland and Anyan entered into plea agreements with the State, reserving the right

to appeal from the District Court’s adverse rulings on their motions to suppress. Cleveland

pled guilty to criminal possession of dangerous drugs and was sentenced to a term of five

years in Montana State Prison (MSP), with two years suspended. Anyan pled guilty to

conspiracy to manufacture dangerous drugs and criminal possession of dangerous drugs. The

District Court deferred imposition of Anyan’s sentence for concurrent terms of five years and

placed her on probation subject to certain conditions, including payment of $9,000 in

restitution for her share of the damages caused to the rented house by the chemicals from the

methamphetamine lab. Cleveland and Anyan appealed the District Court’s failure to hold

an evidentiary hearing in connection with their motions to suppress and to enter Findings of

Fact and Conclusions of Law as required by § 46-13-104(3), MCA. On June 5, 2001, this

Court consolidated the two appeals.

¶14 Klein entered into a plea agreement on June 19, 2001, wherein he reserved the right

to appeal from the District Court’s ruling on his motion to suppress. Klein pled guilty to

criminal production or manufacture of dangerous drugs and possession of dangerous drugs

with intent to sell. The District Court sentenced Klein to a term of ten years in MSP for the

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charge of criminal production or manufacture of dangerous drugs and a concurrent term of

twenty years, with ten years suspended for the charge of possession with intent to sell. Klein

filed a notice of appeal on August 13, 2001.

¶15 On February 7, 2002, this Court issued an Order in the consolidated appeals of Anyan

and Cleveland, dismissing the appeals without prejudice and remanding the cases to the

District Court for an evidentiary hearing on the motions to suppress and the entry of Findings

of Fact and Conclusions of Law. Klein’s appeal was also dismissed without prejudice

pursuant to a stipulation, and remanded to the District Court. Thereafter, Klein’s case was

consolidated with Anyan’s and Cleveland’s cases for purposes of the evidentiary hearing

regarding the suppression motions.

¶16 On June 10, 2002, the District Court conducted the evidentiary hearing ordered by this

Court. At the hearing, the court received testimony from Sergeant Bardwell, Undersheriff

Curry, and Officer Reinschmidt. In addition, the District Court received the deposition

testimony of Officer Nichols, who was unable to attend the evidentiary hearing because of

his deployment with the National Guard.

¶17 The District Court issued its Findings of Fact, Conclusions of Law and Order denying

Appellants’ motions to suppress on July 31, 2002. In its order, the District Court determined

that it was reasonable for law enforcement officers to believe that knocking and announcing

their presence would be either dangerous, futile, or that it would inhibit the effective

investigation of the crime by allowing the destruction of evidence. Hence, the District Court

concluded that the no-knock entry was justified in this case and the court again denied

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Appellants’ motions to suppress. Appellants filed a consolidated notice of appeal on August

8, 2002.

Standard of Review

¶18 We review a district court’s denial of a motion to suppress to determine whether the

district court’s findings of fact are clearly erroneous and whether those findings were

correctly applied as a matter of law. State v. Olson, 2003 MT 61, ¶ 11, 314 Mont. 402, ¶ 11,

66 P.3d 297, ¶ 11 (citing State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983

P.2d 916, ¶ 13). Further, the Ninth Circuit Court of Appeals has specifically held that the

issue of whether exigent circumstances exist in the execution of a search warrant should be

reviewed de novo. United States v. Furrow (9th Cir. 2000), 229 F.3d 805, 811, overruled on

other grounds by United States v. Johnson (9th Cir. 2001), 256 F.3d 895.

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 Discussion

¶19 Whether law enforcement officers’ no-knock entry into Appellants’ house to execute
a search warrant violated Appellants’ constitutional rights to privacy and to be free from
unreasonable searches and seizures.

¶20 This is an issue of first impression in Montana. Montana has no statutory provisions

or case law addressing the knock and announce rule. Consequently, we look to the relevant

federal law and the laws of our sister states to decide this issue. We also look to the greater

protections afforded to Montanans in search and seizure matters under Article II, Sections

10 and 11 of the Montana Constitution. See State v. Bullock (1995), 272 Mont. 361, 383-84,

901 P.2d 61, 75; State v. Siegal (1997), 281 Mont. 250, 262-63, 934 P.2d 176, 183,

overruled in part and on other grounds by State v. Kuneff, 1998 MT 287, 291 Mont. 474,

970 P.2d 556; State v. Elison, 2000 MT 288, ¶¶ 46-47, 302 Mont. 228, ¶¶ 46-47, 14 P.3d

456, ¶¶46-47.

¶21 The Fourth Amendment to the United States Constitution protects “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” The knock and announce rule recognizes the powerful protections

afforded by the Fourth Amendment to the sanctity of the home.

Nowhere 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. Therefore, we have been
adamant in our demand that absent exigent circumstances a warrant will be
required before a person’s home is invaded by the authorities.

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United States v. Becker (9th Cir. 1994), 23 F.3d 1537, 1539-40 (internal citations omitted).

The knock and announce rule is intended to strike the proper balance between individual

rights and the police power of the state. People v. Condon (Ill. 1992), 592 N.E.2d 951, 957,

cert. denied, 507 U.S. 948, 113 S.Ct. 1359, 122 L.Ed.2d 738 (1993).

¶22 Underlying the knock and announce rule are concerns for the protection of privacy,

reduction in the potential for violence, and the prevention of the destruction of property of

private citizens. State v. Bamber (Fla. 1994), 630 So.2d 1048, 1052 (citing 2 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.8(a) (2d ed. 1987)

(hereinafter LaFave)). “There is nothing more terrifying to the occupants than to be

suddenly confronted in the privacy of their home by a police officer decorated with guns and

the insignia of his office. This is why the law protects its entrance so rigidly.” Richardson

v. State (Fla. Dist. Ct. App. 2d Dist. 2001), 787 So.2d 906, 908.

“The fear of a smashing in of doors by government agents is based upon much
more than a concern that our privacy will be disturbed. It is based upon
concern for our safety and the safety of our families. Indeed, the minions of
dictators do not kick in doors for the mere purpose of satisfying some
voyeuristic desire to peer around and then go about their business. Something
much more malevolent and dangerous is afoot when they take those actions.
It is that which strikes terror into the hearts of their victims. The fourth
amendment protects us from that fear as much as it protects our privacy.”

Becker, 23 F.3d at 1540 (quoting United States v. Lockett (9th Cir. 1990), 919 F.2d 585, 592

(Fernandez, J., concurring)).

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¶23 In Bamber, the Florida Supreme Court explained that as a matter of policy, no-knock

warrants are disfavored because of their staggering potential for violence to both the

occupants of the residence and the police. Bamber, 630 So.2d at 1050.

“[U]nannounced breaking and entering into a home could quite easily lead an
individual to believe that his safety was in peril and cause him to take
defensive measures which he otherwise would not have taken had he known
that a warrant had been issued to search his home.”

Bamber, 630 So.2d at 1052 (quoting LaFave, at 272). Several years later, the Florida

Supreme Court also stated that

[i]n failing to permit time for a response in executing a search warrant, the
police follow a recipe for tragedy. . . . Awakening citizens from slumber and
depriving them of an opportunity to recognize law enforcement’s presence and
purpose could result in a misunderstanding with horrific consequences.

Richardson, 787 So.2d at 909.

¶24 The Illinois Supreme Court has also recognized that unexpected and unannounced

entries actually create, rather than prevent, deadly encounters between police and citizens.

Condon, 592 N.E.2d at 957. Other states and circuits are in accord and have emphasized that

a legitimate purpose of knocking and announcing is to protect the safety of all involved. See

State v. Curtis (Tenn. 1997), 964 S.W.2d 604, 609; Becker, 23 F.3d at 1540; United States

v. Dice (6th Cir. 2000), 200 F.3d 978, 982.

¶25 Because the Fourth Amendment protects property as well as privacy, another purpose

of the knock and announce rule is to prevent the needless destruction of property. Dice, 200

F.3d at 982. “[Q]uite obviously a person should ordinarily ‘be allowed the opportunity to

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voluntarily admit the officer into his home’ instead of suffering damage to his property.”

Bamber, 630 So.2d at 1052 (quoting LaFave, at 273).

¶26 In evaluating the scope of the Fourth Amendment right to be free from unreasonable

searches and seizures, the United States Supreme Court in Wilson v. Arkansas (1995), 514

U.S. 927, 931, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, looked to the traditional protections

against unreasonable searches and seizures afforded by the common law at the time of the

framing of the Fourth Amendment. In doing so, the Supreme Court noted that

[a]lthough the underlying command of the Fourth Amendment is always that
searches and seizures be reasonable, our effort to give content to this term may
be guided by the meaning ascribed to it by the Framers of the Amendment. An
examination of the common law of search and seizure leaves no doubt that the
reasonableness of a search of a dwelling may depend in part on whether law
enforcement officers announced their presence and authority prior to entering.

Wilson, 514 U.S. at 931, 115 S.Ct. at 1916 (internal citations omitted).

¶27 After Sharlene Wilson made several narcotics sales to an informant, law enforcement

officers with the Arkansas State Police obtained warrants to arrest her and search her home.

The affidavit in support of the warrants stated that Wilson’s housemate, Bryson Jacobs, had

previously been convicted of arson and firebombing. On the afternoon of the search, the

officers found the main door to Wilson’s home open. As the officers opened an unlocked

screen door and entered the residence, they identified themselves as police officers and stated

that they had a warrant. They found Wilson in the bathroom flushing marijuana down the

toilet. Wilson and Jacobs were arrested and charged with possession and distribution of

marijuana and methamphetamine. Wilson, 514 U.S. at 929-30, 115 S.Ct. at 1915-16.

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¶28 Prior to trial, Wilson filed a motion to suppress the evidence seized during the search

on various grounds including that the search was invalid because the officers failed to knock

and announce their presence prior to entering the home. The trial court summarily denied

the suppression motion. Wilson appealed to the Arkansas Supreme Court arguing that the

Fourth Amendment requires officers to knock and announce prior to entering a residence.

That court rejected Wilson’s argument and affirmed her conviction on appeal. The United

States Supreme Court granted certiorari to resolve the conflict among the lower courts as to

whether the common law knock and announce principle forms a part of the Fourth

Amendment reasonableness inquiry. The Supreme Court held that it did. Wilson, 514 U.S.

at 930, 115 S.Ct. at 1916.

¶29 In making this determination, the Supreme Court examined in Wilson the history of

the common law knock and announce rule noting that although common law generally

protected a man’s house as “his castle of defense and asylum,” common-law courts long held

that the sheriff, acting on behalf of the King, could enter a man’s house to arrest him “or to

do other execution of the K[ing]’s process,” but only after signifying the cause of his coming

and requesting that the doors be opened. Wilson, 514 U.S. at 931, 115 S.Ct. at 1916 (citing

3 W. Blackstone, Commentaries; Semayne’s Case (K.B. 1603), 5 Co. Rep. 91a, 91b, 77

Eng.Rep. 194, 195-96).

[Before the sheriff may enter a man’s house], he ought to signify the cause of
his coming, and to make request to open doors . . . , for the law without a
default in the owner abhors the destruction or breaking of any house (which
is for the habitation and safety of man) by which great damage and
inconvenience might ensue to the party, when no default is in him; for perhaps

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 he did not know of the process, of which, if he had notice, it is to be presumed
that he would obey it. . . .

Wilson, 514 U.S. at 931-32, 115 S.Ct. at 1916-17 (quoting Semayne’s Case, 5 Co. Rep. at

91b, 77 Eng.Rep. at 195-96). The Supreme Court noted that the knock and announce

principle appears to predate even Semayne’s Case, which is usually cited as the judicial

source of the common-law standard. “Semayne’s Case itself indicates that the doctrine may

be traced to a statute enacted in 1275, and that at that time the statute was ‘but an affirmance

of the common law.’” Wilson, 514 U.S. at 932 n.2, 115 S.Ct. at 1917 n.2 (quoting

Semayne’s Case, 5 Co.Rep. at 91b, 77 Eng.Rep. at 196).

¶30 The Supreme Court noted in Wilson that several prominent founding-era

commentators agreed on the basic principle of knock and announce:

According to Sir Matthew Hale, the “constant practice” at common law was
that “the officer may break open the door, if he be sure the offender is there,
if after acquainting them of the business, and demanding the prisoner, he
refuses to open the door.” See 1 M. Hale, Pleas of the Crown 582. William
Hawkins propounded a similar principle: “the law doth never allow” an officer
to break open the door of a dwelling “but in cases of necessity,” that is, unless
he “first signify to those in the house the cause of his coming, and request
them to give him admittance.” 2 W. Hawkins, Pleas of the Crown, ch. 14, § 1,
p. 138 (6th ed. 1787). Sir William Blackstone stated simply that the sheriff
may “justify breaking open doors, if the possession be not quietly delivered.”
3 Blackstone 412.

Wilson, 514 U.S. at 932-33, 115 S.Ct. at 1917. In addition, most of the states that ratified

the Fourth Amendment enacted constitutional provisions or statutes generally incorporating

English common law and a few states enacted statutes specifically embracing the common-

14
law view that the breaking of the door of a dwelling was permitted once admittance was

refused. Wilson, 514 U.S. at 933-34, 115 S.Ct. at 1917.

¶31 The Wilson Court further noted that while the common law principle of announcement

is “embedded in Anglo-American law,” the Court had never before squarely held that this

principle is an element of the reasonableness inquiry under the Fourth Amendment.

However, the Supreme Court determined in Wilson that

[g]iven the longstanding common-law endorsement of the practice of
announcement, we have little doubt that the Framers of the Fourth Amendment
thought that the method of an officer’s entry into a dwelling was among the
factors to be considered in assessing the reasonableness of search and seizure.

Wilson, 514 U.S. at 934, 115 S.Ct. at 1918. Hence, the Court held that the common-law

knock and announce principle does form a part of the Fourth Amendment reasonableness

inquiry. Wilson, 514 U.S. at 934, 115 S.Ct. at 1918.

¶32 The Court further held, however, that not every entry must be preceded by an

announcement. Rather,

[t]he Fourth Amendment’s flexible requirement of reasonableness should not
be read to mandate a rigid rule of announcement that ignores countervailing
law enforcement interests. . . . [T]he common-law principle of announcement
was never stated as an inflexible rule requiring announcement under all
circumstances.

Wilson, 514 U.S. at 934, 115 S.Ct. at 1918 (citing Ker v. California (1963), 374 U.S. 23, 38,

83 S.Ct. 1623, 1632, 10 L.Ed.2d 726). While early common law did not require

announcement in certain circumstances including felony arrests, that principle was gradually

applied to cases involving felonies, yet the courts acknowledged that the presumption in

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favor of announcement necessarily would give way to countervailing law enforcement

interests. Those interests included circumstances presenting a threat of physical harm to

officers, the fact that an officer is pursuing a recently escaped arrestee, and where officers

have reason to believe that evidence would likely be destroyed if advance notice were given.

¶33 However, rather than giving a “comprehensive catalog” of the relevant countervailing

factors, the Wilson Court left to the lower courts the task of determining the circumstances

under which an unannounced entry is reasonable under the Fourth Amendment. The Court

simply held that although a search and seizure of a dwelling might be constitutionally

defective if police officers enter without prior announcement, law enforcement interests may

also establish the reasonableness of an unannounced entry. Wilson, 514 U.S. at 936, 115

S.Ct. at 1919. Consequently, an officer serving a search warrant must comply with the knock

and announce requirement unless there are exigent circumstances present which would

present a threat of physical violence or the likelihood that evidence would be destroyed if the

rule were not followed. United States v. Dupras (D. Mont. 1997), 980 F. Supp. 344, 347

(citing Richards v. Wisconsin (1997), 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615)..

Exigent Circumstances

¶34 Exigent circumstances have been defined as

“those circumstances that would cause a reasonable person to believe that
entry (or other relevant prompt action) was necessary to prevent physical harm
to the officers or other persons, the destruction of relevant evidence, the
escape of a suspect, or some other consequence improperly frustrating
legitimate law enforcement efforts.”

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United States v. Zermeno (9th Cir. 1995), 66 F.3d 1058, 1063 (quoting United States v.

McConney (9th Cir. 1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101,

83 L.Ed.2d 46 (1984)). The government bears the burden of proving that exigent

circumstances existed. United States v. Bates (6th Cir. 1996), 84 F.3d 790, 794. An

unjustified yet sincere belief in exigent circumstances does not justify non-compliance with

the knock and announce rule. United States v. Mendonsa (9th Cir. 1993), 989 F.2d 366, 370

(citing McConney, 728 F.2d at 1206). Unless exigent circumstances exist, the failure of law

enforcement officers to knock and announce their presence will render the evidence procured

during the ensuing execution of the search warrant inadmissible. Bates, 84 F.3d at 795.

¶35 There are two types of exigencies, those that are foreknown and those unexpected that

arise on the scene. Dupras, 980 F.Supp. at 347. The determination of whether an

unannounced entry is reasonable must be made under the particular circumstances of each

case. Dupras, 980 F.Supp. at 347. In the case before us on appeal, all of the factors that

officers actually deemed exigent were actually known well in advance of applying for the

search warrant. The SWAT teams became involved in this investigation almost two weeks

prior to applying for a search warrant. It was at that point that the decision was made that

there would be a no-knock forcible entry into the house. The court issuing the search

warrant was never apprized of that decision, nor were any exigent circumstances laid out to

the court when the search warrant was applied for.

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¶36 Moreover,

while peril to officers or the possibility of destruction of evidence or escape
may well demonstrate an exigency, mere unspecific fears about those
possibilities will not. Were they enough, the knock and announce statute
would have been judicially amended to exclude virtually all narcotics-based
cases. It has not been.

Becker, 23 F.3d at 1541. In fact, in Richards, the Supreme Court held that the Fourth

Amendment does not permit a blanket exception to the knock-and-announce requirement in

felony drug investigations. Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22.

¶37 In Richards, law enforcement officers obtained a warrant to search Richards’ motel

room for drugs and related paraphernalia. One officer, dressed as a maintenance man,

knocked on the door and stated that he was with maintenance. With the chain still on the

door, Richards cracked it open, but slammed it closed again when he saw a uniformed officer

standing behind the “maintenance man.” After waiting two or three seconds, the officers

kicked in the door. They claimed at trial that they identified themselves as police as they

were kicking in the door. The officers caught Richards trying to escape through a window.

They found cash and cocaine hidden in plastic bags in the bathroom ceiling. Richards, 520

U.S. at 388-89, 117 S.Ct. at 1418-19.

¶38 Richards sought to have the evidence from his motel room suppressed on the ground

that the officers failed to knock and announce their presence prior to forcing entry into the

room. The trial court denied the motion concluding that the officers could gather from

Richards’ behavior that he knew they were police officers and that he might try to escape or

destroy evidence. The judge emphasized that the easily disposable nature of the drugs the

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police were searching for further justified the officers’ decision to identify themselves as

they crossed the threshold instead of announcing their presence before seeking entry. The

Wisconsin Supreme Court affirmed concluding that it was reasonable to assume that all

felony drug crimes would involve “an extremely high risk of serious if not deadly injury to

the police as well as the potential for the disposal of drugs by the occupants prior to entry

by the police.” Richards, 520 U.S. at 390, 117 S.Ct. at 1419 (quoting State v. Richards (Wis.

1996), 549 N.W.2d 218, 219). Thus, the Wisonsin Supreme Court concluded that exigent

circumstances justifying a no-knock entry are always present in felony drug cases, hence,

police officers are never required to knock and announce their presence when executing a

search warrant in a felony drug investigation. Richards, 520 U.S. at 389-90, 117 S.Ct. at

1419-20.

¶39 The United States Supreme Court disagreed and determined that the Fourth

Amendment does not permit a blanket exception to the knock-and-announce requirement for

felony drug investigations. Rather, the Supreme Court held that to justify a no-knock entry,

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 effective

investigation of the crime by, for example, allowing the destruction of evidence. Richards,

520 U.S. at 394-95, 117 S.Ct. at 1421-22.

¶40 The Supreme Court also held that creating exceptions to the knock-and-announce rule

based on the “culture” surrounding a general category of criminal behavior presented two

serious concerns: (1) the exception contains considerable overgeneralization as not every

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drug investigation poses substantial risks to the officers’ safety and the preservation of

evidence; and (2) the reasons for creating an exception in one category can, relatively easily,

be applied to others and thereby render meaningless the knock-and-announce element of the

Fourth Amendment’s reasonableness requirement. Richards, 520 U.S. at 392-94, 117 S.Ct.

at 1420-21.

¶41 Although the Supreme Court rejected the Wisconsin court’s blanket exception to the

knock and announce requirement in Richards, the Supreme Court agreed with the trial court

that on the facts of that case, it was reasonable for the officers to believe that Richards knew,

after he opened the door, that the men seeking entry to his room were the police and that

once the officers reasonably believed that Richards knew who they were, it was reasonable

for them to force entry immediately given the disposable nature of the drugs. Richards, 520

U.S. at 395, 117 S.Ct. at 1422.

¶42 We next discuss those factors that may present exigent circumstances obviating the

necessity to knock and announce.

A. Safety concerns

¶43 Exigent circumstances cannot be predicated upon general fears of the officers

executing a search warrant in a narcotics investigation. Zermeno, 66 F.3d at 1063. While

peril to officers may well demonstrate an exigency, mere unspecific fears about that

possibility will not. Becker, 23 F.3d at 1541; United States v. Moore (10th Cir. 1996), 91

F.3d 96, 98. In Moore, the Tenth Circuit Court of Appeals stated:

20
 The mere statement that firearms are present, standing alone, is insufficient.
The government must go further and demonstrate that the presence of firearms
raised a concern for the officers’ safety. . . . [O]fficers are concerned about
an armed response when they execute any narcotics search warrant. Clearly,
though, to expand the exigent circumstances exception to that extent would
completely swallow the rule.

Moore, 91 F.3d at 98 (internal citations omitted).

¶44 Hence, a mere suspicion that weapons would be at a residence does not provide an

exigency for the officers’ failure to properly knock and announce their presence. “Our cases

have made it clear that generalized fears about how drug dealers usually act or the weapons

that they usually keep is not enough to establish exigency.” United States v. Granville (9th

Cir. 2000), 222 F.3d 1214, 1219. Evidence that firearms are within the residence or that a

particular defendant is armed is not by itself sufficient to create an exigency. Becker, 23

F.3d at 1541; United States v. Marts (8th Cir. 1993), 986 F.2d 1216, 1218. There must be

specific information to lead the officers to a reasonable conclusion that the presence of

firearms raises concerns for the officers’ safety. Moore, 91 F.3d at 98. Furthermore,

[t]he presence of a weapon creates an exigent circumstance, provided the
government is able to prove they possessed information that the suspect was
armed and likely to use a weapon or become violent. Evidence that firearms
are within a residence, by itself, is not sufficient to create an exigency to
officers when executing a warrant. However, threats to an officer’s safety, a
criminal record reflecting violent tendencies, or a verified reputation of a
suspect’s violent nature can be enough to provide law enforcement officers
with justification to forego the necessity of knocking and announcing their
presence.

Bates, 84 F.3d at 795 (internal citations omitted). “A concern for police safety must be based

upon prior knowledge or direct observation that the subject of the search keeps weapons and

21
that such person has a known propensity to use them.” State v. Valentine (Ohio Ct. App.

1991), 598 N.E.2d 82, 85 (emphasis in original) (quoting State v. Jeter (Wash. 1981), 634

P.2d 312, 314).

¶45 In the case sub judice, the officers had no information that any of the occupants of the

house possessed weapons. Officer Nichols had information that a person matching Klein’s

description had purchased ammunition. However, even after months of surveillance, Officer

Nichols had no information of weapons being in the residence and no report of anyone

seeing any of the occupants of the house, including Klein, with weapons. There was no

testimony indicating that any of the occupants of the house were prone to violence or the use

of weapons or had ever made threats against law enforcement officers.

¶46 Prior to initiating the raid, Sergeant Bardwell completed a risk analysis report

intended to assess the risk associated with specific individuals who the officers anticipate

might be present during a raid. Sergeant Bardwell testified that Klein was the only person

considered in conjunction with the risk analysis assessment and the only person about whom

Sergeant Bardwell had any information prior to the raid. Sergeant Bardwell agreed that the

only criterion that applied to Klein from the risk analysis checklist was that he was on

probation or parole for a nonviolent offense. Sergeant Bardwell testified that he had no

concrete evidence to substantiate the assumption that there might be weapons in the house.

Sergeant Bardwell also agreed that there was no record or information of Klein ever being

violent; having any violent criminal record; resisting arrest or assaulting a police officer;

possessing weapons; being mentally unstable; using drugs or alcohol; having a military or

22
police background; or being associated with any organization suspected of violent criminal

activity. Sergeant Bardwell further stated that he had no information regarding the identities,

characteristics or background of any other individuals in the house.

¶47 While Officer Nichols’ later investigation revealed that several occupants of and

visitors to the house had criminal backgrounds involving violent offenses, that information

cannot now be used to justify the officers’ no-knock entry into Appellants’ house. “[I]n

determining the lawfulness of entry and the existence of probable cause, we may concern

ourselves only with what the officers had reason to believe at the time of their entry.” United

States v. Ramirez (1998), 523 U.S. 65, 71 n.2, 118 S.Ct. 992, 997 n.2, 140 L.Ed.2d 191

(quoting Ker, 374 U.S. at 40-41 n.12, 83 S.Ct. at 1634 n.12) (emphasis in original). “The

‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” United

States v. Banks (2003), 540 U.S. 31, 39, 124 S.Ct. 521, 527, 157 L.Ed.2d 343 (quoting

Graham v. Connor (1989), 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443).

¶48 The State claims that another factor in determining exigency under the safety

exception is the inherent danger in methamphetamine labs. In this case, although Officer

Nichols expressed concerns regarding the safety of neighborhood residents, he made no

attempt to evacuate any residences. In fact, Officer Reinschmidt, who was conducting

surveillance from a house directly across the street from Appellants’ residence, did not

request the residents of the house she was using for surveillance to leave while the

surveillance and the raid were being conducted.

23
¶49 Additionally, Officer Reinschmidt testified that after she saw some activity in

Appellants’ driveway and heard someone yell to go inside and cut the lights, she saw no

other suspicious activity in the house. Officer Reinschmidt further testified that although she

saw some movement in the kitchen, the house was quiet and her observations were entirely

consistent with the residents preparing to retire for the night.

¶50 Furthermore, as the officers approached the house to execute the search warrant, they

did not detect any activity or hear anything consistent with attempts to escape, resist arrest,

barricade the doors, destroy evidence or dismantle the meth lab. There was no indication

that any of the occupants of the house had detected the officers’ presence or anticipated an

invasion.

B. Futility

¶51 The futility exception to the knock and announce rule excuses the knock and

announce requirement where police officers have a reasonable suspicion that the occupants

know of the presence and purpose of the police prior to their entry into the residence. See

Bates, 84 F.3d at 795 (exigent circumstances exist when the occupants already know of the

officers’ authority and purpose); United States v. Dunnock (4th Cir. 2002), 295 F.3d 431, 435,

cert. denied, 537 U.S. 1037, 123 S.Ct. 570, 154 L.Ed.2d 457 (2002) (futility exception

applied where person arrested outside of his home had notice of the authority and purpose

of the officers executing the search warrant).

¶52 In United States v. Peterson (9th Cir. 2003), 353 F.3d 1045, the Ninth Circuit Court

of Appeals addressed this exception to the knock and announce rule. Just before SWAT

24
team members were ready to knock on Peterson’s door to serve a search warrant, one of the

occupants of the residence opened the door. Recognizing the group of people he saw on the

porch to be police officers, he attempted to close the door as one of the officers shouted

“Police, with a search warrant.” The officers then forced the door open. On appeal,

Peterson argued that the officers’ entry of his residence was unreasonable under the Fourth

Amendment. Peterson, 353 F.3d at 1047-48.

¶53 The Ninth Circuit concluded that the officers’ no-knock entry was justified on the

grounds of futility, destruction of evidence and danger. In addressing the issue of futility,

the Ninth Circuit stated that

the SWAT team originally intended to announce its presence. However, just
as this announcement was about to be made, Edwards unexpectedly opened
the door, saw that police were outside, and attempted to deny them entry.
Were we to hold that the police were required to announce their presence in
this case and wait some further period of time while the occupants
reconsidered whether to admit or resist them, it would amount to mandating
a meaningless act. Announcement would have been futile. Just as one cannot
close a door that is already closed, one cannot “announce” a presence that
is already known.

Peterson, 353 F.3d at 1049 (emphasis added).

¶54 The Tenth Circuit Court of Appeals determined in Moore, that while executing a

warrant, police officers could not claim that they were constructively refused admittance to

a residence so as to permit forcible entry where forced entry was “virtually instantaneous”

with the officers’ announcement of their presence and authority. Moore, 91 F.3d at 98.

¶55 In the present case, the State conceded in oral argument that the futility exception was

not applicable in this case. Sergeant Bardwell testified that the presence of the surveillance

25
camera was not a consideration in planning the no-knock raid, since the speed of entry would

undermine the effectiveness of any surveillance. Sergeant Bardwell also observed that entry

into the house could be planned in such a manner as to avoid the surveillance camera. In

fact, the SWAT teams approached the house from the north and west, thereby effectively

remaining outside of the range of the surveillance camera. Additionally, the raid was

conducted at night and the officers had no information that the camera was operational,

especially in the dark.

¶56 Moreover, Sergeant Bardwell testified that the existence of counter-surveillance was

important only to the extent, “[t]hat if they have an operation that they deem the expense and

trouble to put up counter-surveillance, it’s probably a pretty substantial operation that they

have.”

¶57 The Illinois Supreme Court held in Condon that even if the occupants of the house

had been aware of the police approaching via a surveillance camera, the State had offered

no specific testimony that the occupants would have done anything violent or tried to escape.

Thus, the Illinois Court held that the surveillance equipment did not constitute an exigent

circumstance that relieved the police of their responsibility to knock and announce. Condon,

592 N.E.2d at 956.

C. Destruction of evidence

¶58 We also conclude that in this case the possibility of destruction of evidence did not

create an exigent circumstance justifying the no-knock entry into Appellants’ house.

26
 The possibility that an individual may destroy drug evidence can also
create exigent circumstances. However, the government must prove they had
“a reasonable belief that the loss or destruction of evidence [was] imminent.”
The mere possibility or suspicion that a party is likely to dispose of evidence
when faced with the execution of a search warrant is not sufficient to create
an exigency.

Bates, 84 F.3d at 796 (internal citations omitted).

¶59 The larger the amount of drugs and the more complex the operation, the less

likelihood there is that evidence will be destroyed during the period between the knock and

announce and the subsequent entry. See United States v. Tavares (8th Cir. 2000), 223 F.3d

911, 917.

¶60 In this case, both Sergeant Bardwell and Undersheriff Curry testified that the mere

fact that the residence contained a meth lab would not justify a no-knock entry. Moreover,

Sergeant Bardwell testified that the potential for the destruction of the meth lab was not a

concern in deciding to take on the assignment. Both Sergeant Bardwell and Undersheriff

Curry agreed that a meth lab cannot be destroyed in a matter of five to ten seconds.

27
 Conclusion

¶61 Under the Fourth Amendment and the federal authority cited above, the knock and

announce rule applies in Montana the same as in our sister states. Even were it not for that

authority, though, Article II, Sections 10 and 11 of the Montana Constitution provide greater

protections against unreasonable searches and seizures and government infringement of

individual privacy than does the federal constitution. See Bullock, 272 Mont. at 383-84, 901

P.2d at 75; Siegal, 281 Mont. at 262-63, 934 P.2d at 183; Elison, ¶¶ 46-47.

¶62 Accordingly, in our application of these constitutional provisions and authorities, we

hold that, on the facts here, the forced entry into the Appellants’ house and subsequent

search was unreasonable under the Fourth Amendment and under Article II, Sections 10 and

11 of the Montana Constitution because the law enforcement authorities failed to knock and

announce their presence before executing the search warrant. Here, the exigencies claimed

by the State as justification for the no-knock entry were all foreknown by the authorities.

Hence, we hold that the State failed to meet its burden to prove that exigent circumstances

obviated the necessity to comply with the knock and announce rule.

¶63 Moreover, we agree with the Appellants that the decision to make a no-knock entry

should ordinarily be made by a neutral and detatched magistrate as part of the applicaton for

search warrant. An investigating officer may, however, make this decision based on

unexpected exigent circumstances that arise on the scene. When law enforcement officers

contemplate a no-knock entry in executing a search warrant, that intention must be included

in the application for the search warrant along with any foreknown exigent circumstances

28
justifying the no-knock entry. This approach is consistent with our prior jurisprudence--i.e.,

when the right to privacy must reasonably yield to an application to search, that decision

should be made by a judicial officer, and not by the police. State ex rel. Townsend v. District

Court (1975), 168 Mont. 357, 360, 543 P.2d 193, 195. And, the review of a search warrant

application by an impartial magistrate ensures that a neutral and detached evaluation of the

situation is interposed between the investigating officer and the private citizen. State v.

Wilson (1994), 266 Mont. 146, 149, 879 P.2d 683, 684.

¶64 The knock and announce rule is a flexible one. Courts must determine whether an

unannounced entry is reasonable under the particular circumstances of each case. Richards,

520 U.S. at 394, 117 S.Ct. at 1421. The time an officer must wait before using force to enter

the house after knocking and announcing depends on the circumstances of each case.

McClure v. United States (9th Cir. 1964), 332 F.2d 19, 22, cert. denied, 380 U.S. 945, 85

S.Ct. 1027, 13 L.Ed.2d 963 (1965).

¶65 In conclusion, we hold that the law enforcement officers’ no-knock entry into

Appellants’ house to execute the search warrant violated Appellants’ federal and state

constitutional rights to be free from unreasonable searches and seizures. Consequently, the

trial court erred in failing to suppress the evidence resulting from that search.

¶66 This cause is reversed and remanded for further proceedings consistent with this

Opinion.

¶67 That said, the dissent has raised several contentions that deserve a response. First, the

dissent faults the Court for failing to rely more heavily on the United States Supreme Court’s

29
decisions in Banks and Ramirez. However, the dissents’ concern in that regard is misplaced

because the facts in both Banks and Ramirez are dissimilar from the facts in the instant case.

¶68 In the case sub judice, the officers failed to knock and announce their presence. In

Banks, not only did the officers knock and announce their presence, they waited 15 to 20

seconds before forcibly entering the residence. There the Supreme Court did not analyze

whether it was proper for the officers to knock and announce, but whether the 15-to-20-

second wait was reasonable. The Supreme Court even stated in Banks that “[t]here has never

been a dispute that these officers were obliged to knock and announce their intentions when

executing the search warrant. . . .” Banks, 540 U.S. at 35, 124 S.Ct. at 524 (emphasis

added).

¶69 Moreover, the reason the Supreme Court determined that the 15-to-20-second wait

was reasonable in Banks was because of the easily disposable nature of the cocaine. Banks,

540 U.S. at 38, 124 S.Ct. at 526. Hence, the exigency the Supreme Court relied on in Banks

to uphold the search was the opportunity to get rid of the cocaine. In the instant case, the not

so easily disposable nature of the methamphetamine lab removed that particular exigency.

¶70 Likewise, Ramirez is also dissimilar from the instant case. In Ramirez, officers

obtained a “no-knock” warrant granting them permission to enter and search Ramirez’s home

for an escaped prisoner who was reported to have made threats to kill witnesses and police

officers. It was also believed that the escapee had access to a large supply of weapons.

Ramirez, 523 U.S. at 68, 118 S.Ct. at 995. Unlike the instant case, the question before the

Supreme Court in Ramirez was whether the Fourth Amendment holds officers to a higher

30
standard when a “no-knock” entry results in the destruction of property. The Supreme Court

held that it did not. Ramirez, 523 U.S. at 68, 118 S.Ct. at 995.

¶71 Second, the dissent faults the Court for not placing more significance on the presence

of the surveillance cameras. While the dissent quotes Officer Bardwell’s testimony

regarding his concerns about the cameras, the dissent fails to note the most significant

observation of Officer Bardwell, that the officers could approach the house outside of the

view of the cameras and thus remain undetected, thereby rendering the cameras useless.

¶72 Finally, the dissent objects to our analysis complaining that we have taken the

“totality” out of “totality of the circumstances.” Contrary to the dissents’ contention, in

order to examine the “totality” of the circumstances, each circumstance must first be

considered on its own strength. In People v. Condon (Ill. 1992), 592 N.E.2d 951, cert

denied, 507 U.S. 948, 113 S.Ct. 1359, 122 L.Ed.2d 738 (1993), the Illinois Supreme Court

was faced with a case factually similar to the case before us on appeal including that the

residence to be searched had two closed circuit television cameras along with a police

scanner to monitor traffic near the residence. The court in Condon expressed its

disagreement with the State’s argument that if the circumstances were viewed synergistically,

they must constitute exigent circumstances.

While there is a certain appeal to the State’s argument, we cannot agree that
just because there are a number of circumstances, not one of which standing
alone would create an exigency, the sheer volume of circumstances without
something more is sufficient to create exigent circumstances.

31
Condon, 592 N.E.2d at 955. Instead, the court stated that “[w]e must necessarily deal with

each potential exigent circumstance individually, since the individual circumstances equal

the totality.” Condon, 592 N.E.2d at 955. We agree with the reasoning of the Illinois

Supreme Court because, simply put, zero plus zero can never equal one. State v. Giant, 2001

MT 245, ¶ 39, 307 Mont. 74, ¶ 39, 37 P.3d 49, ¶ 39.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART

32
Justice Jim Rice dissenting.

¶73 I respectfully dissent. I appreciate the Court’s effort in analyzing this issue of first

impression, but, in my view, the Court has overlooked or failed to emphasize superior

precedent which would require a different outcome when applied to the facts here. Although

discussing the United States Supreme Court’s decisions in Wilson and Richards at some

length, the Court makes only a single, passing reference to each of the Supreme Court’s two

most recent decisions regarding this issue, United States v. Ramirez and United States v.

Banks.1 The Court appears to have eschewed these holdings in favor of holdings from other

state courts and United States Circuit Court decisions, particularly the Ninth Circuit. Though

I take no issue with citing to the Ninth Circuit generally, it bears mention, and consideration,

that the Ninth Circuit Court’s analytical approach to this issue has been criticized and its

holdings have been overruled by the high court. The Supreme Court has provided instruction

that I would apply to this case.

¶74 I begin with the standard of review. The Court cites to the Ninth Circuit Court’s

holding in United States v. Furrow for the proposition that de novo review is exercised on

search warrant exigency issues. See ¶ 18. Furrow did not establish that standard, but simply

restated the standard which, after analysis, had been adopted by the Ninth Circuit in United

States v. McConney (9th Cir. 1984), 728 F.2d 1195. Furrow, 229 F.3d at 811. A review of

1
Banks dealt with a forceful entry by police some fifteen to twenty seconds
following their “knock and announce.” The Court stated that the “same criteria bear on
when the officers could legitimately enter after knocking” as those for “dispensing with a
knock and announcement” altogether. Banks, 540 U.S. at 35.

33
McConney’s holding reveals that the Ninth Circuit’s de novo standard is significantly

different than the de novo review we have previously exercised. Beginning with our Court,

we have held:

We review a district court’s denial of a motion to suppress “to determine
whether the court’s findings of fact are clearly erroneous and whether its
interpretation and application of the law are correct.” State v. Meyer, 2004
MT 272, 323 Mont. 173, 99 P.3d 185.

State v. DeWitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277, ¶ 21. Further,

regarding exigent circumstances, we have held:

Whether the factual circumstances determined by a district court constitute
exigent circumstances is a conclusion of law reviewed for correctness. State
v. Saxton, 2003 MT 105, ¶ 19, 315 Mont. 315, ¶ 19, 68 P.3d 721, ¶ 19.

State v. Lanegan, 2004 MT 134, ¶ 11, 321 Mont. 349, ¶ 11, 91 P.3d 578, ¶ 11.

¶75 The Ninth Circuit’s “de novo review,” as adopted in McConney and reiterated in

Furrow, is something quite different than our Court’s review “anew” of the trial court’s

conclusions of law for correctness. The Ninth Circuit’s review is premised on its

determination that exigent circumstances questions are mixed questions of law and fact. Its

analysis, in part, is as follows:

In summary, to classify mixed questions of law and fact for standard of
review purposes, we adopt a functional analysis that focuses on the nature of
the inquiry required when we apply the relevant rule of law to the facts as
established. The analysis is not a precise one and does not offer any litmus test
by which all mixed questions can be neatly categorized. It does not “unerringly
distinguish between findings of fact and conclusions of law.” Pullman-
Standard v. Swint, 456 U.S. at 289 n.19, 102 S.Ct. at 1790 n.19. Nonetheless,
we think that if we focus on the nature of the inquiry required in determining
whether the established facts fall within the relevant legal definition, we

34
employ a neutral test that accurately reflects the concerns that properly
underlie standard of review jurisprudence.

III

Applying our functional analysis to the case at hand, we conclude that
the mixed question of exigent circumstances is reviewable de novo as a
question of law, and, consequently, we overrule Flickinger. Our reason is this:
to decide if the facts satisfy the legal test of exigency–whether, judged by an
objective standard, “there [was] a likelihood that the occupants [would]
attempt to escape, resist, destroy evidence, or harm someone within,” United
States v. Bustamante-Gamez, 488 F.2d 4, 12 (9th Cir. 1973), cert. denied, 416
U.S. 970, 40 L.Ed.2d 559 (1974),–necessarily involves us in an inquiry that
goes beyond the historical facts.

The mixed question of exigency is rooted in constitutional principles
and policies. Like many such mixed questions, its resolution requires us to
consider abstract legal doctrines, to weigh underlying policy considerations,
and to balance competing legal interests. In particular, its resolution requires
that we strike a balance between two sometimes conflicting societal values–
the safety of law enforcement officers and fourth amendment privacy interests.
The essential and difficult question raised by this balancing is how much risk
police officers can reasonably be expected to assume before disregarding the
rules society has adopted to otherwise circumscribe the exercise of their
considerable discretionary authority in carrying out their vital law enforcement
duties.

This is a question that no amount of fact-finding will answer. The
inquiry requires us to ask not merely whether the trial judge was correct in
finding that Olson in fact had reason to believe, for instance, that McConney
was a member of the Hell’s Angels Motorcycle Club or that he had a prior
felony conviction; it also requires a determination whether these facts and any
other information Olson had about McConney’s past are sufficient to satisfy
the legal standard for exigency. We must decide, for instance, whether a
reasonable belief that a suspect is a member of the Hell’s Angels Club, without
demonstration of a link to criminal activity, is relevant to the issue of
exigency, cf. United States v. Rubio, 727 F.2d 786 at 793 (9th Cir. 1983)
(membership in Hell’s Angels without a link to actual criminal activity
insufficient to support a finding of probable cause to issue a search warrant).
We must also decide how much weight may be given to an officer’s

35
 knowledge that a suspect has previously been convicted of an unspecified
felony.

When, as here, the application of law to fact requires us to make value
judgments about the law and its policy underpinnings, and when, as here, the
application of law to fact is of clear precedential importance, the policy
reasons for de novo review are satisfied and we should not hesitate to review
the district judge’s determination independently.

In conclusion, we hold that the mixed question of exigent circumstances
is not reviewable under the clearly erroneous test because it is not, like the
question of intent, essentially factual. We do not at this juncture decide how
any other mixed question should be reviewed. We do, it is true, adopt a
functional analysis for the resolution of these questions. But our approach is
an ad hoc one, permitting individual analysis and classification of each type
of mixed question. Under it, we need only decide that the question of exigent
circumstances is subject to de novo review.

McConney, 728 F.2d at 1204-05.

¶76 Rather than import the Ninth Circuit’s “mixed question” analysis, and all that comes

with it, I would retain our previously applied de novo review of warrant exigency questions–

that is, approaching the issue as a legal conclusion reviewed for correctness and exercising

deferential review on related factual questions, as we stated in Lanegan and DeWitt.

¶77 Turning to the merits, the Court correctly notes that the “no-knock” rule adopted by

the United States Supreme Court in Richards is a “flexible one,” and that courts must

determine whether an unannounced entry is reasonable under the particular circumstances

of each case. However, the Court then concludes that, under the facts here, officers violated

the defendants’ federal and state constitutional rights by failing to knock and announce. See

¶¶ 64-65. In this regard, I will begin by discussing amplifications of the Richards rule which

have been announced, believing these to be necessary for proper resolution of the issue.

36
¶78 First, Richards held that, although police should be required to make the necessary

showing whenever the reasonableness of a no-knock entry is challenged, the showing itself

is “not high.” Richards, 520 U.S. at 394-95; see also United States v. Diehl (1st Cir. 2002),

276 F.3d 32, 44, cert. denied, Diehl v. United States (2002), 537 U.S. 834, 123 S.Ct. 193,

154 L.Ed.2d 52 (“This burden is not large and the version of the record favoring the trial

court’s ruling governs.”). Further, it is not necessary to establish a level of proof satisfying

the probable cause standard. Richards, 520 U.S. at 394; see also United States v. Grogins

(4th Cir. 1998), 163 F.3d 795, 797 (reversing the district court’s suppression of evidence

because “the district court’s scrutiny approximated, if it did not exceed, the probable cause

standard. The Supreme Court has expressly rejected this standard with respect to forgoing

knocking and announcing” and citing Richards.)

¶79 Indeed, the Richards “reasonable suspicion” standard is the same standard applied for

the reasonableness of an investigative stop. Richards, 520 U.S. at 394 (citing the Terry v.

Ohio (1968), 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889, stop and frisk standard); see also

United States v. Banks (2003), 540 U.S. 31, 42, 124 S.Ct. 521, 528, 157 L.Ed.2d 343, 355-56

(in knock and announce case, applying investigative stop principles from United States v.

Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740). Thus, the showing

necessary for officers to initiate an investigative stop, a standard well established by our

myriad of cases addressing that issue, is the standard we are to apply here. That standard

provides helpful illustration about the kind and amount of information required to justify the

officers’ no-knock entry.

37
¶80 “Whether particularized suspicion supports an investigative stop is a question of fact

that is analyzed in the context of the totality of the circumstances.” State v. Martinez, 2003

MT 65, ¶ 23, 314 Mont. 434, ¶ 23, 67 P.3d 207, ¶ 23 (citing State v. Pratt (1997), 286 Mont.

156, 161, 951 P.2d 37, 40). “[I]n order for the State to prove the existence of particularized

suspicion, the State must show: (1) objective data from which an experienced officer can

make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle

is or has been engaged in wrongdoing or was a witness to criminal activity.” State v. Gopher

(1981), 193 Mont. 189, 194, 631 P.2d 293, 296. The Richards rule is consistent herewith,

thereby satisfying both federal and state constitutional requirements: “In order to satisfy a

‘no-knock’ entry, 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, 520 U.S. at 394 (emphasis added); see also Ramirez,

523 U.S. at 70. With these standards in mind, I turn to the circumstances of this case.

¶81 1. Nature of the crime investigated. Citing to Richards’ holding that there can be

no “blanket exceptions” to the knock-and-announce rule for felony drug investigations, the

Court simply dismisses the nature of the crime here as irrelevant to the inquiry. See ¶ 39.

This is an incorrect application of Richards, which also concluded that “[i]t is indisputable

that felony drug investigations may frequently involve both” the threat of physical violence

and the likelihood of destruction of evidence, and cited its previous discussions about these

connections. Richards, 520 U.S. at 391. Richards merely concluded that this connection

38
could not justify a blanket exception to the knock-and-announce rule that would alleviate

case-by-case evaluation. Richards, 520 U.S. at 391-92. However, contrary to this Court’s

analysis, the nature of the crime being investigated is nonetheless a key factor which must

be considered by police. “‘[T]he law has uniformly recognized that substantial dealers in

narcotics possess firearms’ and that ‘entrance into a situs of drug trafficking activity carries

all too real dangers to law enforcement officers.’” United States v. Kennedy (4th Cir. 1994),

32 F.3d 876, 882 (citing United States v. Bonner (D.C. Cir. 1989), 874 F.2d 822, 824). In

Banks, the Supreme Court recognized that the police’s approach to a house to execute a

search warrant for cocaine may differ from their approach with a warrant for a stolen piano.

“Police seeking a stolen piano may be able to spend more time to make sure they really need

the battering ram.” Banks, 540 U.S. at 41.

¶82 Here, police were not seeking a stolen piano. They were executing a felony drug

warrant. The Court fails to consider this distinction, but more, also dismisses the

significance of the kind of drugs involved here–a methamphetamine laboratory. The Court

should well know by now that “meth labs” are inherently unstable and dangerous, presenting

this additional danger to officers. Nonetheless, the Court concludes this factor is not relevant

to the inquiry because police “made no attempt to evacuate any residences.” See ¶ 48.

Unfortunately, the dismissal of this concern by the Court does not accurately reflect the

evidence in the record. To the contrary, Officer Bardwell testified that the situation here–“a

meth lab with multiple suspects and they had warrants”–weighed significantly in his mind.

The District Court specifically found that “a methamphetamine laboratory was in the

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residence to be searched, which presented a high hazard level.” The Court improperly

concludes this evidence has no bearing–on the basis of its own evaluation.

¶83 2. Purchase of ammunition by Klein. Citing authority for the proposition that

“[e]vidence that firearms are within the residence or that a particular defendant is armed is

not by itself sufficient to create an exigency,” see ¶ 44 (emphasis added), the Court dismisses

the evidence of Klein’s ammunition purchase as insufficient to constitute exigency. I do not

disagree with the cited authority, only the Court’s application of it. Klein’s ammunition

purchase may by itself have been insufficient to establish an exigency, but that did not render

this evidence irrelevant to the inquiry. The Court reasons as if the evidence did not exist or

was completely inconsequential. To the contrary, Officer Bardwell testified that evidence

of the ammunition purchase by Klein, a fugitive felon, was significant to his analysis, and

the District Court found this fact to be significant.

¶84 The Court rejects the District Court’s finding, and instead engages in a “no existence”

analysis; that is, it repeatedly focuses on the evidence which the police did not have, a tactic

the Court uses throughout the opinion. See also ¶ 50. Here, because the police had “no

information” about whether the occupants were armed and “no information” about weapons

being in the house, the Court concludes that the ammunition purchase by Klein is simply

immaterial. See ¶ 45. This is a faulty inquiry. The proper focus in determining reasonable

suspicion is what police did observe, and whether “an experienced police officer can make

certain inferences” therefrom. Gopher, 193 Mont. at 194, 631 P.2d at 296. Thus, I disagree

with the Court’s conclusion about this evidence. Purchase of ammunition by a fugitive felon

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who is associating with a group operating a meth lab is not a “mere unspecific fear,” see

¶ 43, and this is another fact that should be properly considered.

¶85 3. The video surveillance camera. Under the opinion’s section entitled “Futility,”2

the Court discards the evidence regarding the surveillance camera because “Sergeant

Bardwell testified that the presence of the surveillance camera was not a consideration in

planning the no-knock raid, since the speed of entry would undermine the effectiveness of

any surveillance.” See ¶ 55. Here, the Court illogically reasons that because the surveillance

camera would be rendered ineffective by the speed of the no-knock entry, the camera was

therefore not a factor to be considered in justifying the no-knock entry. Obviously, the

camera would not have been rendered ineffective but for the no-knock entry. In addition to

this error in logic, the Court again critically misapprehends Officer Bardwell’s testimony.

Officer Bardwell offered testimony to the precisely opposite conclusion about the

significance of the surveillance camera:

Defense: When you were planning the raid did you take the surveillance
camera into consideration?

Bardwell: When we did the raid; absolutely.

Defense: When you were planning the raid did you plan around that
surveillance camera?

Bardwell: Not about any particular camera. We planned our raid, or
considerations on the raid, that they had counter-surveillance,
whether they had one camera or two cameras.

2
The United States Supreme Court analyzes “futility” as a separate basis for a no-
knock entry, not as a subcategory of exigency. See Banks, 540 U.S. at 37 n.3.

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 Defense: Okay. So it really didn’t matter, then, in planning the raid that
the surveillance cameras were there.

Bardwell: Oh, it mattered a lot; yeah.

Defense: How did it matter in terms of planning your raid?

Bardwell: That if they have an operation that they deem the expense and
trouble to put up counter-surveillance, its probably a pretty
substantial operation that they have.

....

Defense: Did that fact have any bearing on your decision to make a no-
knock entry in this case?

Bardwell: Actually it was a great deal.

Defense: It did.

Bardwell: Yes.

From this testimony, the District Court found that the presence of the camera was significant

and indicated a substantial drug operation was inside the house. The Court simply disregards

this evidence as worthless.

¶86 4. The number of suspects in the house and their criminal backgrounds. The Court

focuses too narrowly on this issue, merely noting that Klein was “the only person about

whom Sergeant Bardwell had any information prior to the raid” and discussing only Klein.

See ¶ 46. More accurately, Klein was the only person that Bardwell had noted on a risk

assessment form prepared shortly before the raid, but, in any event, that was not the extent

of the investigation. Other suspects were also investigated by officers. Officer Nichols’ pre-

entry investigation had revealed that the house was occupied by as many as fifteen

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individuals, including suspects with previous charges for carrying a concealed weapon,

domestic assault, felony assault, and child rape. Another individual had been charged with

four instances of domestic assault and a weapon violation, while still another had previously

been charged with intimidation with a weapon, unlawful domestic imprisonment, and

interference with domestic violence reporting. Information about the group was shared with

Bardwell, and although he was not advised of all the prior charges, he was aware of the

criminal involvement. This is significant evidence in support of a no-knock entry which the

Court completely overlooks. Obviously, the suspects had a history of violence. Further, the

number of suspects in the house, finally thought to be between six and eight at the time of

the raid, raised concerns about officer safety and possible escape that led officers to pursue

a no-knock entry.

¶87 5. Other factors. The evidence indicated various other factors considered by officers

in deciding that a no-knock entry was necessary. One was that the house was a three-story

structure with numerous rooms. Police expressed concern about timely securing such a large

structure, particularly in light of the number of suspects. Another was the pre-raid incident

when one of the suspects yelled for everyone to get inside and turn off the lights, which

prompted officers to move up the timing of the entry.

¶88 Additional factors could be analyzed, but this is enough. Clearly, there were

specifically identifiable, objective factors which indicated to police that the situation required

a no-knock entry. However, the Court, engaging in a “divide and conquer” analysis,

systematically eliminates the effect of each factor. This is precisely the kind of analysis

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which the United States Supreme Court criticized when reversing the Ninth Circuit Court in

Banks. The Court first recalled its holding in Arvizu, where it stated:

We think that the approach taken by the [Ninth Circuit] Court of Appeals here
departs sharply from [our] cases. The court’s evaluation and rejection of
seven of the listed [evidentiary] factors in isolation from each other does not
take into account the “totality of the circumstances,” as our cases have
understood that phrase. The court appeared to believe that each observation
by [the officer] that was by itself readily susceptible to an innocent
explanation was entitled to ‘no weight.’ [Citation omitted.] Terry, however,
precludes this sort of divide-and-conquer analysis.

Arvizu, 534 U.S. at 274. The Banks Court then faulted the Ninth Circuit for failing to

consider Arvizu in again systematically eliminating the factors offered by police in support

of a no-knock entry:

Nor did the appeals court cite United States v. Arvizu, 534 U.S. 266, 151
L.Ed.2d 740, 122 S. Ct. 744 (2002) (again, from the Ninth Circuit). There, we
recently disapproved a framework for making reasonable suspicion
determinations . . . by “describ[ing] and clearly delimit[ing]” an officer’s
consideration of certain factors [citation omitted]. Here, as in Arvizu, the
Court of Appeals’s overlay of a categorical scheme on the general
reasonableness analysis threatens to distort the “totality of the circumstances”
principle, by replacing a stress on revealing facts with resort to pigeonholes.

Banks, 540 U.S. at 42.

¶89 The Court here employs the same flawed analysis. It has proposed a “categorical

scheme” which separates and pigeonholes the factors which the police here considered,

thereby eliminating all of them. In effect, it has taken the “totality” out of “totality of the

circumstances.”

¶90 Police here were faced with executing a felony drug warrant in a large structure in

which numerous suspects with violent criminal backgrounds were staying. One suspect was

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known to have purchased ammunition. The suspects had mounted a surveillance camera.

A meth lab was housed in the structure, and the size of the structure would inhibit the ability

of police to locate and secure the lab. The numbers of suspects known to be inside could

present safety and escape concerns. Shortly before the raid, one suspect yelled suspiciously.

From a consideration of the totality of these circumstances, I would conclude that police had

objective data from which they could reasonably infer, and from which a reasonable

suspicion would arise, that a no-knock entry was necessary.

¶91 Although I concur with the new rule adopted by the Court regarding a magistrate’s

approval of a no-knock entry, this procedure will not always resolve the issue.

Circumstances may arise following the magistrate’s issuance of a warrant which may require

a last minute, unapproved no-knock entry, as the Supreme Court has recognized:

When a warrant applicant gives reasonable grounds to expect futility or to
suspect that one or another such exigency already exists or will arise instantly
upon knocking, a magistrate judge is acting within the Constitution to
authorize a “no-knock” entry. And even when executing a warrant silent about
that, if circumstances support a reasonable suspicion of exigency when the
officers arrive at the door, they may go straight in.

Banks, 540 U.S. at 36-37. I would so note in the opinion.

¶92 Further, I would affirm the District Court.

/S/ JIM RICE

Chief Justice Karla M. Gray and Justice John Warner join in the dissent of Justice Rice.

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 /S/ KARLA M. GRAY
/S/ JOHN WARNER

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