State v. Ochadleus

No. 04-266

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 88

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JAMES B. OCHADLEUS,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 2003-0094
The Honorable Susan P. Watters, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Nancy G. Schwartz, LaRance Syth & Schwartz, Billings, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, Tammy K. Plubell,
Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone
County Attorney, Sheila Kolar, Deputy County Attorney

Submitted on Briefs: April 5, 2005

Decided: April 11, 2005

Filed:

__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.
¶1 James B. Ochadleus appeals his conviction in the District Court for the Thirteenth

Judicial District, Yellowstone County, of Criminal Possession of Dangerous Drugs with

Intent to Distribute. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Whether the District Court properly denied Ochadleus’s motion to suppress

evidence seized pursuant to a search warrant based on Ochadleus’s claim that the Postal

Inspector did not have reasonable grounds to subject a suspicious package placed in the

United States Mail to a canine sniff.

¶4 2. Whether the District Court properly denied Ochadleus’s motion to suppress based

on his claim that law enforcement officers failed to follow the “knock and announce” rule

prior to executing a warrant to search his residence.

Factual and Procedural Background

¶5 Postal Inspector Mark Morse has been employed by the United States Postal

Inspectors Office for over 18 years. In that position, Inspector Morse investigates crimes in

Montana that affect the United States Postal Service and the United States Mail.

¶6 On January 30, 2003, while profiling Express Mail packages at the Billings Post

Office, Inspector Morse discovered a package that he thought looked suspicious. Inspector

Morse testified at the suppression hearing in this matter that his suspicions were aroused

because the package had a handwritten label; the zip code the customer filled out was

different from the actual zip code of mailing; all of the seams of the package were taped; and

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the package originated from Tucson, Arizona. Inspector Morse believed these facts to be

significant because Express Mail is a premium service used primarily by businesses and

most express mail packages have typed labels rather than handwritten labels. In addition,

Inspector Morse explained that taped seams are a common characteristic of packages

containing contraband and that Tucson, Arizona is a known drug distribution area.

¶7 Based on this information, Inspector Morse spoke with the special delivery carriers

and learned that they had delivered three other Express Mail packages to the same address

within the past six weeks. Consequently, Inspector Morse took the package to the Drug

Enforcement Agency (DEA) in downtown Billings to have them conduct a canine sniff of

the package.

¶8 Officer Tim Vicars is a canine handler with the Billings Police Department. He and

his dog, Duke, were called to the DEA office to investigate the suspicious package. Upon

arriving at the DEA office, Officer Vicars observed four or five different-sized packages on

the floor a few feet apart. Inspector Morse informed Officer Vicars that he suspected one

of the packages may contain illegal drugs, but he did not tell Officer Vicars which one he

suspected. Officer Vicars deployed Duke to sniff the packages and Duke alerted on the same

package that Inspector Morse had brought from the Post Office.

¶9 Thereafter, Inspector Morse obtained a search warrant from the Federal Magistrate

to inspect the contents of the package. In the package, Inspector Morse found 495.8 grams

of a green leafy substance that field-tested positive for marijuana. Based on this evidence,

Inspector Morse also obtained a warrant to search the intended destination of the package--a

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residence at 709 North 26th Street in Billings. Later that day, Inspector Morse, dressed as

a mail carrier, delivered the package of marijuana to that location. Shortly thereafter, five

officers with the Billings Police Department’s City-County Special Investigations Unit

(CCSIU) and the DEA executed the search warrant.

¶10 To enter the residence, the officers had to pass through a screen door and a wooden

door with a window that led into an enclosed porch. About five feet from this porch

entrance was another wooden door with a window that led into the residence itself. Neither

of the windows in the doors had any type of curtain or other covering. Detective Jamie

Schillinger with the CCSIU entry team later testified that he thought the wooden door at the

porch entrance was open prior to the officer’s entry.

¶11 At the time the officers executed the search warrant, Ochadleus, his roommate Les

Wright, and another male were sitting in the living room when Wright saw someone pass by

a window. Wright got up and went to the door to see who was there. When he looked

through the window of the door, Wright saw a man with “a shield and a gun.” Wright

remembered seeing one of the officers wearing a tie-dyed t-shirt with a marijuana leaf on it,

but various officers testified that they were all wearing law enforcement attire with

identifying insignia. According to Wright, he heard one of the officers say “freeze, get on

the ground, you’re under arrest.” Wright claimed that after only a two-second delay from

the time he saw the officers, they rammed in the door.

¶12 Detective Rick Ballantyne, who led the entry team, testified that as soon as he

approached the door to the residence he saw a man at the window of the door and made

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direct eye contact with him. Detective Ballantyne further testified that when he called out

“police, search warrant, open the door,” the man looked directly at him and moved towards

the door as if to open it. However, when Detective Ballantyne again called out “police,” the

man backed away from the door. As soon as he saw the man backing away, Detective

Ballantyne used a battering ram on the door to gain entry into the residence.

¶13 Detective Schillinger later estimated that there was a five-to-seven second delay

between the time Wright made eye contact with the officers and the time officers forced their

way into the residence. In the search, officers found the package of marijuana that had just

been delivered to the residence, miscellaneous drug paraphernalia, scales, cash and other

illegal drugs.

¶14 On February 4, 2003, the State filed an Information charging Ochadleus with

Criminal Possession of Dangerous Drugs with Intent to Distribute, a felony, in violation of

§ 45-9-103, MCA. Ochadleus pled not guilty to the charge and, on April 10, 2003, he filed

a motion to suppress the evidence seized in the search of his home. Ochadleus argued in his

motion that Inspector Morse did not have sufficient grounds to subject the package to a

canine sniff prior to obtaining a search warrant and that the officers who executed the search

warrant for his residence did so in violation of the federal “knock and announce” statute and

the Fourth Amendment to the United States Constitution. After conducting a suppression

hearing, the District Court entered its findings of fact, conclusions of law and order denying

Ochadleus’s motion to suppress.

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¶15 On September 10, 2003, Ochadleus filed with the District Court his Acknowledgment

of Waiver of Rights by Plea of Guilty and Plea Agreement With Reservation of Right to

Appeal wherein he agreed to plead guilty to the charge of Criminal Possession of Dangerous

Drugs with Intent to Distribute in exchange for the State’s recommendation that the court

impose a seven-year suspended sentence. Ochadleus reserved his right to appeal the District

Court’s denial of his motion to suppress. The court subsequently deferred imposition of

Ochadleus’s sentence for three years based upon his successful completion of numerous

conditions. Ochadleus appeals the District Court’s Judgment and Order.

Standard of Review

¶16 We review a district court’s grant or denial of a motion to suppress to determine

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

correctly applied as a matter of law. State v. Lanegan, 2004 MT 134, ¶ 10, 321 Mont. 349,

¶ 10, 91 P.3d 578, ¶ 10 (citing State v. Roberts, 1999 MT 59, ¶ 11, 293 Mont. 476, ¶ 11, 977

P.2d 974, ¶ 11). A trial court’s findings are clearly erroneous if they are not supported by

substantial evidence, if the court has misapprehended the effect of the evidence, or if our

review of the record leaves us with a definite and firm conviction that a mistake has been

made. Lanegan, ¶ 10.

Issue 1.

¶17 Whether the District Court properly denied Ochadleus’s motion to suppress evidence
seized pursuant to a search warrant based on Ochadleus’s claim that the Postal Inspector
did not have reasonable grounds to subject a suspicious package placed in the United States
Mail to a canine sniff.

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¶18 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 United States Supreme Court determined in United States

v. Van Leeuwen (1970), 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282, that this

included first-class mail, such as letters and sealed packages. However, the Supreme Court

also held in Van Leeuwen that first-class mail is not beyond the reach of all inspection. Van

Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032.

¶19 The Ninth Circuit Court of Appeals has stated that “[p]ostal authorities may seize and

detain packages if they have a reasonable and articulable suspicion of criminal activity.”

United States v. Aldaz (9th Cir. 1990), 921 F.2d 227, 229, cert. denied, 501 U.S. 1207, 111

S.Ct. 2802, 115 L.Ed.2d 975 (1991). A reasonable suspicion “is formed by specific,

articulable facts which, together with objective and reasonable inferences, form the basis for

suspecting that the particular person [or object] detained is [involved] in criminal activity.”

United States v. Gill (9th Cir. 2002), 280 F.3d 923, 928 (quoting United States v. Lopez-Soto

(9th Cir. 2000), 205 F.3d 1101, 1105).

¶20 In the case before us on appeal, Ochadleus contends that Inspector Morse did not have

a reasonable and articulable suspicion that the package in question contained illegal drugs

and that even if Inspector Morse had sufficient evidence to temporarily detain the package,

he lacked sufficient evidence to transport the package to the DEA office for further

investigation. The State maintains that Inspector Morse had reasonable cause to detain the

package when it exhibited characteristics consistent with the Postal Inspection Services’ drug

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package profile. In addition, the State argues that Inspector Morse’s action of briefly

detaining the package and taking it to the DEA office for a canine sniff did not constitute a

seizure because it did not deprive Ochadleus of his possessory interest in the package since

the package was promptly delivered to him.

¶21 The Van Leeuwen case is analogous to the case sub judice. The defendant in Van

Leeuwen mailed a 12-pound package to California and one to Tennessee. He insured both

packages for $10,000. Although the defendant had British Columbia license plates, he

mailed the packages from a small border town in the United States. The return addresses on

both packages were fictitious. A postal clerk detained the packages to allow further

investigation into their suspicious nature. Subsequent research revealed that the addressees

for both packages were being investigated for trafficking in illegal coins and a search warrant

ultimately revealed that both packages contained illegal gold coins. Van Leeuwen, 397 U.S.

at 249-50, 90 S.Ct. at 1031.

¶22 The Supreme Court concluded in Van Leeuwen that the postal clerk had sufficient

justification to detain the packages without a warrant and that detention of the packages for

29 hours was not unreasonable under the circumstances. Van Leeuwen, 397 U.S. at 252-53,

90 S.Ct. at 1032-33. The Supreme Court stated:

No interest protected by the Fourth Amendment was invaded by
forwarding the packages the following day rather than the day when they were
deposited. The significant Fourth Amendment interest was in the privacy of
this first-class mail; and that privacy was not disturbed or invaded until the
approval of the magistrate was obtained.

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Van Leeuwen, 397 U.S. at 253, 90 S.Ct. at 1032. See also Gill, 280 F.3d at 929 (“[T]he

main Fourth Amendment interest in a mailed package attaches to the privacy of its contents,

not the speed with which it is delivered.”).

¶23 Various circuit courts have extended the rationale of Van Leeuwen to packages

suspected of containing drugs sent by United States Mail or private courier services to justify

detaining suspicious packages until probable cause for a search warrant could be established

by conducting canine sniffs of the packages. See, e.g., United States v. LaFrance (1st Cir.

1989), 879 F.2d 1, 4 (holding that the seizure of a Federal Express package on reasonable

suspicion that it contained contraband was lawful); United States v. Mayomi (7th Cir. 1989),

873 F.2d 1049, 1053-54 (holding that when the facts create a reasonable suspicion and the

investigation period is reasonable, the warrantless detention of mail sent to a private mailbox

service until a canine sniff could establish probable cause for a search warrant did not violate

the Fourth Amendment); Aldaz, 921 F.2d at 229 (“Postal authorities may seize and detain

packages if they have a reasonable and articulable suspicion of criminal activity.”); United

States v. Lux (10th Cir. 1990), 905 F.2d 1379, 1382 (“A temporary detention of mail for

investigative purposes is not an unreasonable seizure when authorities have a reasonable

suspicion of criminal activity.”); United States v. Banks (11th Cir. 1993), 3 F.3d 399, 403,

cert. denied, 510 U.S. 1129, 114 S.Ct. 1097, 127 L.Ed.2d 410 (1994) (“reasonable,

temporary detention of a reasonably suspicious postal package prior to establishing probable

cause for issuance of a search warrant for the time necessary to obtain a drug detection

canine or otherwise conduct an investigation does not violate the Fourth Amendment.”).

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¶24 In Banks, a narcotics investigator obtained the delivery notice for an Express Mail

package from a reliable confidential informant. The informant told the investigator that he

knew the individuals who sent the package and that he believed the package contained

cocaine. The informant also stated that the Postal Service had attempted delivery of the

package that day. Based on this information, the investigator met with a postal inspector

who verified that a package meeting the informant’s description was in the Express Mail and

that delivery had been attempted. After a narcotics canine gave a positive alert to the

package, the investigator obtained a warrant to search the package. It contained 106.4 grams

of powder cocaine and 45.6 grams of cocaine base. Banks, 3 F.3d at 400-01.

¶25 The package was resealed and a second delivery notice advising that the package

could be picked up at the Post Office was left at the address on the package. A team of

federal and local officers maintained surveillance at the Post Office. The defendant was

arrested when he presented and signed the delivery slip to obtain the package. He was

indicted for conspiracy to distribute cocaine and cocaine base as well as possession with

intent to distribute cocaine. The defendant moved to suppress evidence obtained by the

search warrant arguing that the initial detention of the package was not based upon a

reasonable suspicion that the package contained contraband. Banks, 3 F.3d at 401.

However, the Eleventh Circuit Court of Appeals held that the information obtained from the

informant provided reasonable suspicion for the postal inspector to detain the package and

subject it to a canine sniff. Banks, 3 F.3d at 403.

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¶26 Along those same lines, the Tenth Circuit Court of Appeals determined in Lux that

law enforcement officers had reasonable suspicion to detain an Express Mail package

addressed to the defendant and subject it to a canine sniff because the package met three of

the characteristics of the drug package profile developed by the Postal Inspection Service.

Lux, 905 F.2d at 1382. Some of these characteristics are: (1) size and shape of the package;

(2) package taped to close or seal all openings; (3) handwritten or printed labels; (4) unusual

return name and address; (5) unusual odors coming from the package; (6) fictitious return

address; and (7) destination of the package. Lux, 905 F.2d at 1380.

¶27 The Ninth Circuit Court of Appeals used these same characteristics in United States

v. Hernandez (9th Cir. 2002), 313 F.3d 1206, 1211, cert. denied, 538 U.S. 1023, 123 S.Ct.

1953, 155 L.Ed.2d 867 (2003), to conclude that there was reasonable cause to detain the

package in question in that case. The Ninth Circuit noted that this profile “does not contain

completely arbitrary criteria,” as it was developed at a national level and was based upon

information gathered from national investigations of narcotics mailings. Hernandez, 313

F.3d at 1211 (citation omitted).

¶28 The Ninth Circuit also acknowledged in Hernandez that a person who voluntarily

places items in the United States Mail for delivery retains a limited possessory interest in the

mailed item.

“[T]he mere detention of mail not in [the addressor’s] custody or control
amounts to at most a minimal or technical interference with [the addressor’s]
person or effects, resulting in no personal deprivation at all.”

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Hernandez, 313 F.3d at 1209 (quoting United States v. Place (1983), 462 U.S. 696, 718 n.5,

103 S.Ct. 2637, 2650 n.5, 77 L.Ed.2d 110 (Brennan, J., concurring)). The recipient, on the

other hand, has a reasonable expectation that postal employees will not detain mail beyond

the normal delivery date and time.

In other words, an addressee’s possessory interest is in the timely delivery of
a package, not in “having his package routed on a particular conveyor belt,
sorted in a particular area, or stored in any particular storing bin for a
particular amount of time.”

Hernandez, 313 F.3d at 1210 (quoting United States v. Demoss (8th Cir. 2002), 279 F.3d 632,

639 (Hansen, J., concurring)) (emphasis added).

¶29 In addition, the Ninth Circuit Court of Appeals stated in United States v. England

(9th Cir. 1992), 971 F.2d 419, 420, that it is “the extent of the interference with the

defendant’s possessory interest in his property, not the physical movement of the property,

that determines whether a seizure has occurred.” The defendant in England deposited two

packages in the United States Mail for Express Mail delivery. The packages were deposited

in the mail on different dates from different postal stations. Postal inspectors at each station

suspected that the packages contained narcotics. One of the postal inspectors took the

package in his possession from the postal station to a nearby police station to subject the

package to a canine sniff. A canine sniff on the other package was conducted at that postal

station. The canines alerted to both packages. England, 971 F.2d at 420. The Ninth Circuit

explained that a “seizure” of property occurs “when there is some meaningful interference

with an individuals possessory interests in that property” and that absent such interference,

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there can be no seizure under the Fourth Amendment. England, 971 F.2d at 420 (citing

United States v. Jacobsen (1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85;

United States v. Beale (9th Cir. 1984), 736 F.2d 1289, 1292, cert. denied, 469 U.S. 1072, 105

S.Ct. 565, 83 L.Ed.2d 506 (1984).

¶30 Using the drug package profile developed by the Postal Inspection Service, Inspector

Morse detained the package in question in this case because (1) it was an Express Mail

package and drug dealers often use the Express Mail service; (2) the label was handwritten

rather than a typed business label; (3) all of the seams of the package were taped; (4) the zip

code on the label did not match the zip code of where the package originated; (5) the

package originated in Tucson, Arizona, a known drug distribution area; and (6) three other

Express Mail packages had been delivered to the same address within the past six weeks.

Consequently, we agree with the State that Inspector Morse did have a reasonable suspicion

to detain the package.

¶31 Furthermore, because Inspector Morse’s brief detainment of the package and his

subjection of the package to a canine sniff at the nearby DEA office did not interfere with

Ochadleus’s possessory interest in the package, that brief detainment did not constitute a

seizure under the Fourth Amendment. As the Ninth Circuit stated in Hernandez, “an

addressee’s possessory interest is in the timely delivery of the package, . . . .” Hernandez,

313 F.3d at 1210. Here, the canine sniff on Ochadleus’s package and the subsequent

delivery of that package were all done on the same day that Inspector Morse discovered the

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package at the Post Office. Hence, Inspector Morse’s brief detainment of the package to

subject it to a canine sniff did not delay delivery.

¶32 Ochadleus also contends that even if his privacy interests under the Fourth

Amendment were not invaded by the detention of his package, it does not necessarily follow

that no privacy interests were invaded under Montana constitutional law. However,

Ochadleus offers no real analysis or support for his state constitutional law claim. This

Court has repeatedly held that it will not consider unsupported issues or arguments and is

under no obligation to locate authorities or formulate arguments for a party in support of

positions taken on appeal. State v. Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60

P.3d 983, ¶ 15 (citing In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6,

53 P.3d 1266, ¶ 6).

¶33 Accordingly, we hold that Inspector Morse did have a reasonable suspicion to detain

the package. We also hold that his brief detainment of the package to subject it to a canine

sniff at the nearby DEA office was not a seizure under the Fourth Amendment because it did

not interfere with Ochadleus’s possessory interest in the package.

Issue 2.

¶34 Whether the District Court properly denied Ochadleus’s motion to suppress based
on his claim that law enforcement officers failed to follow the “knock and announce” rule
prior to executing a warrant to search his residence.

¶35 Ochadleus argues in his brief on appeal that the law enforcement officers executing

the warrant to search his residence should have knocked and announced their presence prior

to entering the privacy of his home based on the Fourth Amendment to the United States

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Constitution and the federal knock and announce statute. He also argues that because the

officers failed to knock and announce, all evidence seized in the search of his home should

be suppressed. The State argues, and we agree, that Ochadleus’s rights under the Fourth

Amendment and the federal knock and announce statute were not violated in this case

because of the existence of exigent circumstances.

¶36 In our recent decision in State v. Anyan, 2004 MT 395, 325 Mont. 245, 104 P.3d 511,

we addressed the knock and announce rule for the first time in Montana. In doing so, we

noted in Anyan that the knock and announce rule recognizes the powerful protections

afforded by the Fourth Amendment to the sanctity of the home and that the rule is intended

to strike the proper balance between individual rights and the police power of the state.

Anyan, ¶ 21 (citing United States v. Becker (9th Cir. 1994), 23 F.3d 1537; 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)). We also noted that “[u]nderlying 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.” Anyan, ¶ 22 (citing State v. Bamber (Fla. 1994),

630 So. 2d 1048, 1052).

¶37 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

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 [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).

¶38 The facts leading to the Supreme Court’s holding in Wilson are these. 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.

¶39 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 was convicted on all charges and he 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

16
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.

¶40 The Supreme Court further held in Wilson 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).

¶41 Consequently, as we pointed out in Anyan, 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. Anyan, ¶ 33 (citing United States v.

Dupras (D. Mont. 1997), 980 F.Supp. 344, 347; Richards v. Wisconsin (1997), 520 U.S. 385,

117 S.Ct. 1416, 137 L.Ed.2d 615). 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.

¶42 Exigent circumstances have been defined as

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 “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.”

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)).

¶43 In Richards v. Wisconsin (1997), 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137

L.Ed.2d 615, the United States Supreme Court held that to justify a no-knock entry, law

enforcement officers 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. 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.

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¶44 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 Supreme Court held that it was reasonable for the officers to believe that

Richards knew, after he opened the door, that the men seeking entry into 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.

¶45 As shown in Richards, 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. Anyan, ¶ 51 (citations omitted). The Ninth Circuit Court of Appeals further

addressed this exception to the knock and announce rule in United States v. Peterson (9th Cir.

2003), 353 F.3d 1045. Just before SWAT 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 into his

residence was unreasonable under the Fourth Amendment. Peterson, 353 F.3d at 1047-48.

¶46 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

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 the SWAT team originally intended to announce its presence. However, just
as this announcement was about to be made, [one of the occupants]
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. . . .

Peterson, 353 F.3d at 1049.

¶47 Like Richards and Peterson, the officers executing the search warrant in the case sub

judice were seen by one of the occupants of the house before the officers had a chance to

knock and announce, thus the futility exception to the knock and announce rule applies in

this case. While Ochadleus, Wright and another male were sitting in the living room, Wright

noticed someone pass by the window. When he went to the door to see who was there, he

saw the officers through the window in the door. Even though Wright had already made eye

contact with the officers, the officers still announced their presence. It was not until the

officers saw Wright back away from the door instead of opening it, that the officers forced

the door open. As the Ninth Circuit stated in Peterson, “[j]ust 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.

¶48 Accordingly, we hold that the officers’ forced entry into Ochadleus’s home to execute

the search warrant did not violate his Fourth Amendment right to be free from unreasonable

searches and seizures.

¶49 By the same token, Ochadleus cannot successfully argue that the officers violated the

federal knock and announce statute, 18 U.S.C. § 3109, which provides as follows:

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 The officer may break open any outer or inner door or window of a house, or
any part of a house, or anything therein, to execute a search warrant, if, after
notice of his authority and purpose, he is refused admittance or when
necessary to liberate himself or a person aiding him in the execution of the
warrant.

Because this rule “is more restrictive than the Fourth Amendment,” United States v. Tavares

(8th Cir. 2000) 223 F.3d 911, 916 n.5 (quoting United States v. Moore (8th Cir. 1992), 956

F.2d 843, 847), we analyze this argument separately.

¶50 While the Fourth Amendment’s knock and announce reasonableness inquiry applies

with equal force to both state and federal law enforcement officers, § 3109 does not directly

apply to state law enforcement officers. Rather, § 3109 applies “[w]hen federal officers are

a significant part of a search conducted pursuant to a state warrant . . . .” Tavares, 223 F.3d

at 914 (citations omitted). In the present case, there was significant federal involvement to

implicate the statute since Inspector Morse, who initiated the search, is a federal agent; the

search warrants for both the package and the residence were issued by a federal magistrate;

and the DEA was involved throughout the investigation including the search of the residence.

¶51 Ochadleus argues that the officers violated the knock and announce rule because they

failed to knock. However, as the District Court noted in its order denying Ochadleus’s

motion to suppress, although § 3109 is generally referred to as the “knock and announce”

statute, it does not contain an express requirement that the officers actually knock on the

door. Rather, the statute requires that law enforcement officers give “notice of their authority

and purpose.” Not only did the officers give notice of their authority and purpose in this case

by announcing that they were the police and that they had a search warrant, but Wright saw

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for himself through the window that they were police officers. It would have been futile for

the officers to do more. “[E]xigent circumstances . . . apply with equal force in the § 3109

context.” Peterson, 353 F.3d at 1051 (citing United States v. Ramirez (1998), 523 U.S. 65,

73, 118 S.Ct. 992, 998, 140 L.Ed.2d 191).

¶52 Section 3109 also requires that after giving notice of their authority and purpose and

prior to forcing open the door, the officers must be refused admittance. Ochadleus argues

that the District Court erred in interpreting Wright’s step back as a refusal to admit the

officers. However, we agree with the District Court’s conclusion that it was reasonable for

the officers to assume in this case that Wright’s action of backing away from the door was

a refusal to admit them.

¶53 Accordingly, we hold that the law enforcement officers’ forced entry into Ochadleus’s

home to execute the search warrant did not violate § 3109.

Conclusion

¶54 Because we hold that Inspector Morse’s action of briefly detaining the package and

taking it to the DEA office for a canine sniff did not constitute a seizure under the Fourth

Amendment since it did not deprive Ochadleus of his possessory interest in the package, and

because we hold that the officers’ forced entry into Ochadleus’s home to execute the search

warrant did not violate his rights under the Fourth Amendment or the federal knock and

announce statute, we affirm the District Court’s denial of Ochadleus’s motion to suppress.

¶55 Since this is only the second Opinion issued by this Court addressing the knock and

announce rule in Montana, we believe that it is important to point out that this Opinion deals

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with an exception to the knock and announce rule. To the end that law enforcement officers

and prosecutors will not attach more significance to this Opinion than is justified, we re-

emphasize the following well-established rules. The warrantless entry into a residence is per

se unreasonable subject only to certain well delineated exceptions. State v. Loh (1996), 275

Mont. 460, 468, 914 P.2d 592, 597 (citing Katz v. United States (1967), 389 U.S. 347, 357,

88 S.Ct. 507, 514, 19 L.Ed.2d 576). Officers serving a warrant to search a residence must

knock and announce their presence before using force to enter the residence. Anyan, ¶ 33.

The time the officers must wait before using force to enter the residence depends upon the

circumstances of each case. Anyan, ¶ 64. The decision to make a no-knock entry into a

residence should ordinarily be made by a neutral and detached magistrate as part of the

application for a search warrant. This means that if the search warrant applicant knows of

exigent circumstances which may justify a no-knock entry, those circumstances must be

included in the application for the search warrant and the issuing magistrate will determine

whether to allow the no-knock entry. Anyan, ¶ 63.

¶56 Finally, as in this case, an investigating officer may make a no-knock entry after a

reasonable suspicion of exigency has ripened. United States v. Banks (2003), 540 U.S. 31,

124 S.Ct. 521, 157 L.Ed.2d 343. Exigent circumstances--i.e., those that typically are

unexpected and that arise on the scene--include officer safety concerns, Anyan, ¶¶ 43-50;

futility, Anyan ¶¶ 51-57; and the destruction of evidence, Anyan ¶¶ 58-60. We again stress,

however, that a no-knock entry into a residence is the exception and not the rule.

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¶57 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS

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Justice W. William Leaphart specially concurring.

¶58 I concur in the Opinion of the Court. In doing so, however, I do not imply that I

would accept the criteria of the so-called “drug package profile” as being sufficient to

establish a reasonable suspicion. Here, the officer’s reasonable suspicion was based on the

following facts: (1) it was an express mail package; (2) the label was handwritten rather than

a typed business label; (3) all of the seams of the package were taped; (4) the zip code on the

label did not match the zip code of the city of origin; (5) the package originated in Tuscon,

Arizona, a known drug distribution area; and (6) three other express packages had been

delivered to the same address within the past six weeks.

¶59 But for the fact that we mail from Helena, Montana, rather than Tuscon, Arizona, the

police, armed with these criteria, could dog-sniff every package that my wife and I mail to

our daughters at college. Our packages, I should add, belie the validity of the profile.

However, since Ochadleus has not challenged the significance or sufficiency of these criteria,

either individually or in the aggregate, the package profile is not at issue in this case.

/S/ W. WILLIAM LEAPHART

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