United States v. Caldwell

United States Court of Appeals
Fifth Circuit
F I L E D
In the May 18, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 05-41763
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UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

PHILLIP BRUNO; CHRISTOPHER JEROME CALDWELL,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Texas
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Before GARWOOD, SMITH, and DEMOSS, knock-and-announce violations. We consider
Circuit Judges. whether, in light of Hudson, suppression is the
remedy for a violation of 18 U.S.C. § 3109’s
JERRY E. SMITH, Circuit Judge: knock-and-announce requirement. Holding it
is not, we reverse and remand.
The district court granted Phillip Bruno and
Christopher Caldwell’s joint motion to sup- I.
press evidence found pursuant to a search that Drug Enforcement Agency (“DEA”) agents
the court found to have violated the knock- and members of the League City SWAT Team
and-announce rule. After this ruling, the Su- arrived at Caldwell’s residence early one
preme Court held in Hudson v. Michigan, 126 morning to execute a search warrant. One of
S. Ct. 2159, 2165 (2006), that the exclusion- the SWAT team members knocked loudly on
ary rule is inapplicable to Fourth Amendment Caldwell’s front door and announced, “Police,
search warrant.” About ten seconds after this and its legal conclusions de novo. United
announcement, two officers at the master bed- States v. Gonzalez, 328 F.3d 755, 758 (5th
room performed a “rake-and-break” maneu- Cir. 2003); United States v. Jordan, 232 F.3d
ver: One broke the window and cleaned it 447, 448 (5th Cir. 2000). The common law
out, and the other pointed a long gun with a principle “that law enforcement officers must
light on it through the window and instructed, announce their presence and provide residents
“Police. Don’t move. Search warrant. Put an opportunity to open the door” has been part
your hands where I can see them.” Caldwell of federal statutory law since 1917 and is cod-
was in bed with his wife and appeared to have ified at 18 U.S.C. § 3109.1 Hudson, 126 S.
been awakened recently. Ct. at 2162. In Hudson, the Court held that
suppression is not the appropriate remedy for
Approximately 15 to 20 seconds after offi- a violation of the constitutional knock-and-an-
cers broke the bedroom window, the front- nounce requirement, but the Court did not ad-
door team tossed a concussion grenade toward dress whether suppression is the correct rem-
the garage as a distraction in case other adults edy for violations of § 3109. Id. at 2165.
were present, and then broke through the front
door. Bruno tried to flee from the garage, but Hudson’s reasoning, however, entails this
DEA agents caught and arrested him. result. The District of Columbia Circuit has
explained persuasively why:
Officers recovered a small, loaded handgun
from above the headboard on the side of the [E]ach of the reasons Hudson gave for not
bed where Caldwell was sleeping, and a loaded applying the exclusionary rule to knock-
shotgun from the master bedroom shower and-announce violations of the Fourth
stall. A later search uncovered narcotics and Amendment applies equally to violations of
seven other weapons. § 3109. Among those reasons are that the
knock-and-announce requirement does not
Caldwell and Bruno were charged in an protect an individual’s interest in shielding
eleven-count indictment with various narcot- “potential evidence from the government’s
ics- and firearms-related offenses under 18 eyes,” Hudson, 126 S. Ct. at 2165; that
U.S.C. §§ 2, 922, and 924 and 21 U.S.C. “imposing th[e] massive remedy” of sup-
§§ 841 and 846. They filed a motion to sup- pression “for a knock-and-announce viola-
press the evidence, claiming that federal offi- tion would generate a constant flood of
cers did not knock and announce their identity
and purpose when executing the search war-
rant, in violation of the Fourth Amendment 1
and 18 U.S.C. § 3109. The district court Title 18 U.S.C. § 3109, “Breaking doors or
windows for entry or exit,” states the following:
granted the motion, and the government ap-
peals. The officer may break open any outer or inner
door or window of a house, or any part of a
II. house, or anything therein, to execute a search
When considering the grant or denial of a warrant, if, after notice of his authority and
motion to suppress evidence, we review the purpose, he is refused admittance or when
district court’s factual findings for clear error necessary to liberate himself or a person aiding
him in the execution of the warrant.

2
alleged failures to observe the rule,” id. at this Court has direct application in a case, yet
2165-66; that questions about whether the appears to rest on reasons rejected in some
police waited long enough before entering other line of decisions, the Court of Appeals
would be “difficult for the trial court to should follow the case which directly controls,
determine and even more difficult for an leaving to this Court the prerogative of over-
appellate court to review,” id. at 2166; that ruling its own decisions.” Rodriguez de Qui-
any deterrent value from suppressing evi- jas v. Shearson/Am. Express, Inc., 490 U.S.
dence in these cases would not be “worth a 477, 484 (1989).
lot,” id.; that civil damage actions would
still provide some deterrence, id. at Miller and Sabbath are not direct prece-
2166-68; and that “[a]nother development dents, so they do not preclude us from con-
over the past half-century that deters cluding that suppression is not the proper
civil-rights violations is the increasing pro- remedy for a § 3109 violation. In neither did
fessionalism of police forces, including a the Court analyze the precise question Hudson
new emphasis on internal police discipline,” squarely addressed: the remedy for a knock-
id. at 2168. and-announce violation. Rather, both focused
on whether a knock-and-announce violation
United States v. Southerland, 466 F.3d 1083, had occurred. In Sabbath, 391 U.S. at 589,
1084 (D.C. Cir. 2006), cert. denied, 127 S. Ct. the Court discussed whether the phrase “break
1361 (2007). open” as used in § 3109 requires the use of
force. In Miller, 357 U.S. at 305, the par-
The Ninth Circuit has also held, in an un- ties apparently conceded the evidence’s inad-
published opinion, that “[s]uppression of evi- missibility if the officers had unlawfully failed
dence is not an available remedy for violations to announce their authority and purpose (not-
of the ‘knock and announce’ rule under 18 ing the petitioner’s three contentions on appeal
U.S.C. § 3109.” United States v. Ramirez, and stating, “If any one of these contentions
196 Fed. Appx. 538, 539 (9th Cir. 2006) (cit- prevails, it is agreed that the marked money
ing Hudson, 126 S. Ct. at 2166). The First was inadmissible in evidence.”).
Circuit has also confronted “whether Hudson
should be extended to a knock and announce In summary, Hudson compels the conclu-
violation committed in the course of executing sion that suppression is not the remedy for a
an arrest warrant” and has concluded “that the violation of §3109, and Miller and Sabbath do
Hudson Court’s reasoning mandates such an not prevent it. Even if the conduct in this case
extension.” United States v. Pelletier, 469 violated that statute,2 suppression is not avail-
F.3d 194, 196 (1st Cir. 2006). able as a remedy for Caldwell and Bruno.

Caldwell and Bruno contend that two deci- The suppression order is REVERSED, and
sions that Hudson did not explicitly overrule this matter is REMANDED for further appro-
continue to require suppression for a violation priate proceedings.
of § 3109: Miller v. United States, 357 U.S.
301 (1958), and Sabbath v. United States, 391
U.S. 585 (1968). The defendants point us to 2
Because of our conclusion about the remedy
the Court’s instruction that “[i]f a precedent of of suppression, we do not reach whether a § 3109
violation occurred in this case.