UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41151
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT ANDREW CANTU,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
October 6, 2000
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER, Circuit
Judges.
ROBERT M. PARKER, Circuit Judge:
Robert Andrew Cantu was sentenced to twelve years imprisonment
after pleading guilty to a charge of possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841. He appeals
the district court’s order denying his motion to suppress evidence
discovered pursuant to a search of his home. The sole issue before
this court is whether the district court erred in denying Mr.
Cantu’s motion to suppress evidence obtained after the officers
1
failed to announce their presence and purpose when attempting
forcible entry of Mr. Cantu’s home.
BACKGROUND
On July 1, 1998, at approximately 1:00 a.m., a seven-person
team of officers with the Calhoun County Sheriff’s Office executed
a warrant to search Defendant’s mobile home in Port Lavaca, Texas.
The officers obtained the warrant pursuant to information from a
confidential source who indicated that defendant Robert Cantu was
selling cocaine and that the drugs were located at the defendant’s
residence. The officers did not have any specific reason to
believe that the occupants of the Cantu residence were armed or
posed any other substantial physical threat.
Operating under a “breach and announce” policy, which governed
all forced entry cases undertaken by the Calhoun County Sheriff’s
Office, the seven officers donned ski masks, approached Defendant’s
front door, and tried to pry it open without first announcing their
presence. Why the officers donned ski masks defies the
imagination. If the idea was to conceal their identity, apparently
the fact that such concealment would be blown by announcing who
they were did not penetrate their consciousness.
The initial attempt to enter the home proved unsuccessful
because the walls of the mobile home were too flimsy to support the
leverage needed to pry the door open. After the failed initial
attempt, the officers announced, “Sheriff’s Office, search
warrant!” Two officers testified that they detected movement
2
within the mobile home, but were unable to point to anything else
that would indicate that evidence was being destroyed. The
officers continued to try to gain entry using the crowbar. At no
time during this period did any of the occupants of the mobile home
open the door. Both the Defendant and the Defendant’s wife
testified that they were asleep at the time of the raid, but awoke
when they heard what sounded like a fight or someone trying to
break into their home. Approximately forty-five seconds after they
announced their presence, one of the officers broke the door’s
window and unlocked the door from the inside. Defendant moved to
suppress the cocaine, LSD, and marijuana seized from the residence
alleging that it was the result of an unreasonable search and
seizure.
DISCUSSION
When the district court makes factual findings following a
pretrial hearing on a motion to suppress, this court reviews such
findings for clear error, assessing the evidence in the light most
favorable to the party that prevailed in the district court. See
United States v. Jones, 133 F.3d 358, 360 (5th Cir.), cert. denied,
523 U.S. 1144 (1998). Legal conclusions are reviewed de novo. See
United States v. Cardenas, 9 F.3d 1139, 1146 (5th Cir. 1993).
Therefore, the district court’s determination that the search of
Mr. Cantu’s home was reasonable under the Fourth Amendment is
reviewed de novo. See United States v. Seals, 987 F.2d 1102, 1106
3
(5th Cir. 1993).
The Fourth Amendment assures that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . ..”
U.S. CONST. amend. IV. The Fourth Amendment embodies the common law
principle that police officers should knock and announce their
presence before they enter a private home. See Richards v.
Wisconsin, 520 U.S. 385, 387 (1997) (citing Wilson v. Arkansas, 514
U.S. 927 (1995)). However, the knock-and-announce rule is not
required when law enforcement concerns outweigh personal privacy
interests. See Wilson, 514 U.S. at 934. The Supreme Court has
left “to the lower courts the task of determining the circumstances
under which an unannounced entry is reasonable under the Fourth
Amendment.” Id.
The question presented in this case is whether the knock-and-
announce rule applies equally to forcible entry attempts as to the
actual breaking open of a door or window to a house. The federal
knock-and-announce rule is codified at 18 U.S.C. § 3109. Section
3109 provides:
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.
18 U.S.C. § 3109. Basing its decision on a literal reading of the
federal statute, this court held in United States v. Fike that the
4
knock-and-announce rule does not apply unless law enforcement
officers actually break open an outer or inner door or window of a
house to gain entry. See United States v. Fikes, 82 F.3d 1315, 1324
(5th Cir. 1996) (citing United States v. Grier, 866 F.2d 908, 934-
35 (7th Cir. 1989)). Under this rule, law enforcement officers are
not required to announce their presence unless they subsequently
break into a house or they find exigent circumstances that would
make announcing their presence “dangerous or futile, or . . . would
inhibit the effective investigation of the crime.” Richards, 520
U.S. at 394.
While Ҥ 3109 codifies the exceptions to the common-law
announcement requirement, . . . and the common law in turn informs
the Fourth Amendment, [the Supreme Court’s] decisions in Wilson and
Richards serve as guideposts in construing the statute.” United
States v. Ramirez, 523 U.S. 65, 73 (1998). In Richards, the Court
held that “the Fourth Amendment incorporates the common law
requirement that police officers entering a dwelling must knock on
the door and announce their identity and purpose before attempting
forcible entry.” Richards, 520 U.S. at 387 (citing Wilson v.
Arkansas, 514 U.S. 927 (1995)) (emphasis added). In construing the
scope and application of § 3109, the Court in Richards and Wilson
considered the common-law rule requiring officers to announce their
presence before attempting forcible entry to outweigh the
suggestive language in § 3109, which implies that officers must
5
actually break into the home for the rule to apply. See id.
Our conclusion is bolstered by the underlying rationale for
the common-law knock-and-announce rule. Generally, the rule serves
several fundamental interests including “(1) protecting law
enforcement officers and household occupants from potential
violence; (2) preventing the unnecessary destruction of private
property; and (3) protecting people from unnecessary intrusion into
their private activities.” United States v. Sagaribay, 982 F.2d
906, 909 (5th Cir. 1993). In Wilson, the Supreme Court explained
that the rule “was justified in part by the belief that
announcement generally would avoid ‘the destruction or breaking of
any house . . . by which great damage and inconvenience might
ensue[.]’” 514 U.S. at 935-36 (quoting Semayne’s Case, 5 Co. Rep.
91a, 91b, 77 Eng. Rep. 194, 196 (K.B. 1603)). The rule is also
intended to protect against intrusions occasioned by law
enforcement officers’ mistakes. See Ker v. California, 374 U.S.
23, 57 (1963) (noting that the knock-and-announce rule is also
based on such practical considerations as the possibility that
police may be misinformed as to the name or address of the suspect)
(Brennan, J., dissenting).
By limiting the requirement that police should knock and
announce their presence and intentions only in situations where
they actually break into a house undermines the interests protected
by the knock-and-announce rule. First, allowing the police to
6
attempt entry into a home before announcing their presence
heightens the possibility that the occupants of a house will react
violently against the unknown aggressor, particularly if they
resemble highwaymen in ski masks. Second, permitting the police to
attempt an unannounced forcible entry subverts the interest in
protecting private property. Finally, attempting entry without
warning precludes the officers’ ability to recognize possible
mistakes in identity or location of the suspect or the place to be
searched.
Therefore, our previous analysis in Fike no longer serves as
the basis for assessing attempted forcible entries under the knock-
and-announce rule. Rather, the reasonableness test outlined by the
Supreme Court in Richards applies with equal force to attempts at
forcible entry as it does to the actual breaking and entering of a
person’s home. See also United States v. Gable, 401 F.2d 765, 766
(3rd Cir. 1968) (holding that insertion of a crowbar into the door
of a suspects house by officers before they announced their
presence constitutes an unreasonable search); United States v.
McCloud, 127 F.3d 1284, 1289 n.2 (10th Cir. 1997) (concluding that
the reference point for the reasonableness determination begins
prior to the officers’ initial attempt to gain entry); Kornegay v.
Cottingham, 120 F.3d 392, 396 (3rd Cir. 1997) (maintaining that law
enforcement officers are required to announce their presence before
attempting forcible entry); United States v. Markling, 7 F.3d 1309,
7
1318 (7th Cir. 1993) (concluding that officers must announce their
presence and wait for a brief period before attempting entry).
The requirement that law enforcement officers announce
their presence is flexible and “should not be read to mandate a
rigid rule of announcement that ignores countervailing law
enforcement interests.” Wilson, 514 U.S. at 934. Courts must
determine whether an unannounced entry is reasonable under the
particular circumstances of the case and in light of law
enforcement’s actions as a whole. See id.; Jones, 133 F.3d at 361.
In Richards, the Court set out the parameters of the reasonableness
test:
In order to justify a “no-knock” entry, the police must
have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would
be dangerous and futile, or that it would inhibit the
effective investigation of the crime by, for example,
allowing the destruction of evidence. This standard–-as
opposed to a probable-cause requirement–-strikes the
appropriate balance between the legitimate law
enforcement concerns at issue in the execution of search
warrants and the individual privacy interests affected by
no-knock entries.
Richards, 520 U.S. at 394. The Court rejected blanket rules
allowing “no-knock” entries based on over-generalizations about
today’s drug culture or other “general categor[ies] of criminal
behavior.” Id. at 392. Instead, officers must at least articulate
some reasonable suspicion that “knocking and announcing would be
dangerous, futile, or destructive to the purposes of the
investigation.” Ramirez, 523 U.S. at 71; United States v. Mendoza-
8
Burciaga, 981 F.2d 192, 196 (5th Cir. 1992). See also United
States v. Rodriguez, 663 F. Supp. 585, 588 (D.D.C. 1987) (“In every
case in which the courts have invoked the exigent circumstances
exception, the police have testified that they had some specific
and immediately ascertainable reason for fearing the loss of the
desired evidence”).
In light of these principles, it is clear that the search of
Mr. Cantu’s residence was unreasonable under Fourth Amendment
analysis. The officers approached Mr. Cantu’s home in the middle
of the night and immediately began prying open his door. The
officers had no prior knowledge that Mr. Cantu or the occupants of
his residence were armed or posed immediate danger. When the
officers approached the mobile home, Mr. Cantu, his wife, and two
children were asleep inside. The only movement in the home that
could rise to the level of any suspicion that evidence was being
destroyed occurred after the officers’ first attempt to gain
entry.1 Furthermore, the fact that the officers wore ski masks to
execute the warrant reinforces the fact that the officers wanted to
1
We note that exigent circumstances created by the police will
not justify an unannounced entry into a home. The movement inside
Mr. Cantu’s home could reasonably be attributed to the initial
attempt to physically pry open the door to his mobile home. Such
“manufactured exigent circumstances” do not form an adequate basis
for dispensing with the announcement requirement, especially when
the initial attempt itself is unreasonable. See United States v.
Rico, 51 F.3d 495, 502 (5th Cir. 1995); United States v. Richard,
994 F.2d 244, 248 (5th Cir. 1993); United States v. Hultgren, 713
F.2d 79, 88 (5th Cir. 1983).
9
conceal their identity. Such law enforcement practices are clearly
unacceptable. Therefore, without any articulation of reasonable
suspicion that announcing their presence would be dangerous,
futile, or would result in destruction of evidence, the officers’
initial attempt to forcibly enter Mr. Cantu’s home was
unreasonable. Accordingly, we reverse the district court’s order
denying his motion to suppress and remand for further proceedings
consistent with this opinion.
REVERSE AND REMAND.
10
KING, Chief Judge, specially concurring:
I concur in the judgment reversing the district court’s
order denying Cantu’s motion to suppress. Unlike the majority,
however, I do not see the issue as whether the knock and announce
rule applies equally to forcible entry attempts as to the actual
breaking open of the door or window. Instead, I accept what all
parties concede –- that the Fourth Amendment was violated when
the raid party attempted to force its way into Cantu’s home
without first announcing its presence. The question that we have
to answer is whether events during the forty-five second delay
between this violation and the subsequent entry means that the
evidence seized was arrived at by means sufficiently
distinguishable from the initial illegality to be purged of its
primary taint. Because the lawless conduct of the police
officers was not too attenuated from the discovery of evidence, I
agree that the evidence must be suppressed.
I. Factual Background
As an initial matter, this court must review the problematic
execution of the Calhoun County Sheriff’s Office raid on the
Cantu residence. On June 30, 1999, law enforcement officers
secured a valid search warrant for Cantu’s mobile home. This
warrant was based on information obtained from an informant who
alleged that Cantu sold cocaine out of his home. The officers
had no information that Cantu was armed, dangerous or likely to
destroy evidence. Pursuant to the search warrant, a team of more
than seven law enforcement officers went to Cantu’s mobile home
to execute this warrant.
Testimony at the suppression hearing revealed that these
officers, dressed in battle dress uniform, including combat
helmets, goggles, bullet-proof vests and ski masks, surrounded
Cantu’s home at 1:00 a.m. Following their standard procedure in
executing narcotics search warrants,2 they attempted to open the
outward-swinging door of Cantu’s mobile home using a large pry
bar called a “haligan tool.” Officer Daigle admitted that he
forcefully stuck the steel bar into the doorframe, attempting to
pry the door away from the molding. At this time, there had been
no announcement of the officers’ purpose, presence, or authority.
Daigle further testified that the entire mobile home was shaking
as a result of his efforts to wrest open the door.
Only after this initial breach did the officers announce
their presence and purpose. The officers identified that they
were from the Sheriff’s Office and that they were at the
residence pursuant to a search warrant. Despite Daigle’s ongoing
2
The record of the suppression hearing revealed that the Calhoun
County Sheriff’s Office executed the same raiding procedure for all
narcotics search warrants.
12
attempts, the door to the mobile home remained closed.
Like the panel majority, I accept the district court’s
finding that approximately forty-five seconds elapsed between the
initial breach of the doorframe and the officers’ eventual entry.
From the officers’ testimony, it appears Daigle continuously
worked the pry bar in an effort to remove the door.3 During this
time officers were shouting that they were law enforcement
officers with a search warrant.4 As a result of the commotion,
Robert Cantu’s father, Ray Cantu emerged from the adjoining house
to ask the officers what was happening. The officers ordered him
back inside his home. The officers also testified that sometime
after the initial blow to the doorframe they heard a movement in
the bedroom area of the mobile home. They testified that,
following this movement, they heard footsteps moving at a fast
pace past their position at the door. Unable to open the door
using the haligan tool, Daigle knocked out a window in the door
and reached in to unlock the door. Once the door was unlocked,
the officers entered the mobile home, secured Cantu, his wife,
and two young children at gunpoint and read him his Miranda
3
At the suppression hearing, Daigle testified that he hit the
door three times with the haligan tool, “working the door” back and
forth in an attempt to pry it open. Officer Musgrave testified
that Daigle hit the door with the haligan tool at least four times.
Officer Amador testified that he saw Daigle hit the door four to
five times.
4
The testimony was that the officers shouted “Sheriff’s
Department. Search Warrant” five to ten times.
13
rights. Cantu readily told the officers the location of the
drugs, and he was arrested.
II. The Officers’ Actions Violated the Fourth Amendment
The Fourth Amendment requirement that law enforcement
officers executing a search warrant knock, identify themselves,
and announce their purpose was violated the instant Officer
Daigle breached the doorframe without first announcing his
authority or presence.5 See Wilson v. Arkansas, 514 U.S. 927,
931 (1995). As there were no exigent circumstances, and the law
enforcement officers were acting under what the government admits
was an unconstitutional policy of always breaching private homes
before announcing their presence when executing narcotics search
warrants, the actions of the officers were unreasonable under our
Fourth Amendment analysis. See id. at 930 (“[W]e hold that th[e]
common-law ‘knock and announce’ principle forms a part of the
5
In this respect, I agree with the panel majority that the
district court erred in holding that “an attempt at entry is never
constitutionally significant.” The Supreme Court has held:
“[P]olice officers entering a dwelling must knock on the door and
announce their identity and purpose before attempting forcible
entry.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997) (emphasis
added). The district court relied on United States v. Fike, 82
F.3d 1315 (5th Cir. 1996), overruled in part on other grounds by
United States v. Brown, 161 F.3d 256 (5th Cir. 1998). As the
majority correctly points out, however, Fike interpreted 18 U.S.C.
§ 3109, which (at least as construed in Fike) requires an actual
“break[ing] open any outer or inner door or window.” The
“attempting” language in Richards mandates a different result in
the instant case.
14
reasonableness inquiry under the Fourth Amendment.”); United
States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998). Thus, the
central freedom protected by the Fourth Amendment to be free from
unreasonable searches and seizures was violated by the actions of
the Calhoun County Sheriff’s Office. See Richards v. Wisconsin,
520 U.S. 385, 387 (1997); Wilson 514 U.S. at 934 (“Given 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 a search or seizure.”).
The “no-knock” policy adopted by the Sheriff’s Office runs
counter to the holding of Richards, as it provides no
particularized “reasonable suspicion that knocking and
announcing. . . would be dangerous or futile, or that it would
inhibit the effective investigation of the crime, by, for
example, allowing the destruction of evidence.” 520 U.S. at 394.
The government and the lower court agree that such a categorical
policy is unconstitutional and that the Sheriff’s Office in this
case lacked any particularized reasonable suspicion. Following
Richards, I find such a “blanket exception” to the knock and
announce requirement overbroad and that the execution of this
policy violated Cantu’s Fourth Amendment rights. See id. at 395.
15
III. There Was Insufficient Attenuation Between the
Constitutional Violation and the Entry by the Officers
A. The District Court Erred in Analyzing “Cure”
The district court held that the evidence obtained after
this failure to knock and announce was cured of its
unconstitutional taint. The court provided two alternative
justifications for this cure as the bases for its denial of the
suppression motion. First, the court found that if the officers’
“attempt” was not a constitutional violation, then the forty-five
seconds that elapsed after the violation and before the entry
rendered the subsequent discovery “reasonable” under the Fourth
Amendment. Second, the court found that the “movement” heard in
the mobile home during the raid provided an exigent circumstance
that justified the officers’ forcible entry. In contrast to the
panel opinion, I find these “attenuation”6 questions to be the
dispositive issues before this court, but, on the facts
presented, conclude that the district court erred in its
determination.
As the panel is in agreement that there was a constitutional
violation from the officers’ attempt at entry, the predicate for
the district court’s reasonableness argument falls away. The
6
See Nardone v. United States, 308 U.S. 338, 341 (1939)
(recognizing that unconstitutionally obtained evidence can “become
so attenuated as to dissipate the taint”).
16
district court held that “if the attempt is never significant,
the forty-five second period between announcement and actual
entry is plainly reasonable under Jones.” See United States v.
Jones, 133 F.3d 358, 361-62 (5th Cir. 1998) (holding that after
properly knocking and announcing officers need only wait fifteen
to twenty seconds before entering). In other words, if there was
no constitutional violation, the Jones holding should control.
As we are bound by Richards, which makes “attempts”
constitutionally significant, this argument is inapposite. See
note 4, supra.
The government, nevertheless, relies on Jones to argue that
the fact that forty-five seconds elapsed is enough to cure the
initial violation. This argument, however, misapplies our
holding in Jones. The question before this court in Jones was
whether after knocking and announcing their presence, officers
who waited for a period of fifteen to twenty seconds acted
reasonably under the Fourth Amendment reasonableness test. See
133 F.3d at 361 (“The question of whether or not the officers in
this case should have knocked and announced their presence and
purpose is of no consequence, as it is conceded that they did
just that. Indeed, Jones admits that the officers knocked and
announced their presence, but he argues that they did not wait a
reasonable length of time before entering.”). Unlike the case
before us, in Jones, there was no initial illegality and
therefore no “attenuation” or “cure” question presented to the
17
court. Our holding in Jones was that it was reasonable, under
the facts presented, for the officers to enter fifteen to twenty
seconds after knocking and announcing their presence. We did not
hold that an unconstitutional violation of the knock and announce
rule could be cured in fifteen to twenty seconds.
As to the second justification for its holding, the district
court relied on United States v. Fike, 82 F.3d 1315, 1324 (5th
Cir. 1996), overruled in part on other grounds by United States
v. Brown, 161 F.3d 256 (5th Cir. 1998), to find that subsequent
events could cure an initial failure to knock and announce. In
Fike, law enforcement officers conducted a raid at the home of
Eddie Franklin Douglas, one of twelve co-conspirators indicted in
a drug conspiracy. The officers broke down a gate outside
Douglas’s house, attempted to pull off the burglar bars on the
front door and then attempted to force that door open. Hearing
the commotion, Douglas opened the kitchen door and was ordered at
gunpoint to unlock the burglar bars on the door. The question
before this court was whether this action comported with the
requirements of 18 U.S.C. § 3109.7 The court found that because
7
Section 3109 reads in relevant part:
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.
18 U.S.C. § 3109.
18
the kitchen door had been opened before the officers actually
broke open a door or window, under a strict reading of
§ 3109, there was no violation of the statute. See 18 U.S.C.
§ 3109 (requiring “break[ing] open any outer or inner door or
window”). As this case was decided before Richards, the court
never addressed the Fourth Amendment reasonableness issue.
I disagree with the district court that Fike teaches the
lesson in the Fourth Amendment context “that whatever violation
an attempt amounts to may be cured by a later occurring event.”
First, this conclusion is unsupported by the Fike holding, which
never reached this issue of cure, never undertook a Fourth
Amendment analysis and never considered attenuation.
Second, as stated in note 4 supra, the district court’s use
of Fike also ignores that Richards has interpreted the knock and
announce rule to cover “attempt[s].” See Richards, 520 U.S. at
387 (“[P]olice officers . . . must knock on the door and announce
their identity and purpose before attempting entry.”).
Therefore, the district court’s use of Fike has no direct
application to the Fourth Amendment reasonableness analysis
necessary for Cantu’s case.
Finally, Fike does not support the district court’s exigency
analysis because the Fike court specifically disclaimed reaching
the issue of whether an exigency was created by Douglas’s
actions. See id. at 1324 (“[T]here was no violation of § 3109.
For that reason, we need not reach the question of whether or not
19
exigent circumstances existed.”).8
While Fike does not guide my analysis, I agree the question
of attenuation raised by the district court is the dispositive
question of the case.
B. Attenuation Analysis
“Under the fruit of the poisonous tree doctrine, all
evidence derived from the exploitation of an illegal search or
seizure must be suppressed, unless the government shows that
there was a break in the chain of events sufficient to refute the
inference that the the evidence was a product of the
constitutional violation.” United States v. Miller, 146 F.3d
274, 279 (5th Cir. 1998) (citing Brown v. Illinois, 422 U.S. 590,
597-603 (1975)).9 A failure to knock and announce, leading to an
8
The district court’s reliance on another § 3109 case, United
States v. Carter, 566 F.2d 1265, 1268-69 (5th Cir. 1978), is
equally misplaced. In Carter, the federal DEA agent announced his
presence as a law enforcement officer and performed a no-knock
entry only when individuals outside and inside the premise ran away
from him. In the instant case, entry and thus the violation
occurred before any announcement of authority.
9
As the Supreme Court in Wong Sun v. United States explained:
We need not hold that all evidence is fruit of the poisonous
tree simply because it would not have come to light but for the
illegal actions of the police. Rather, the more apt question in
such a case is whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint.
20
unconstitutional arrest and search, may, if not too attenuated,
require suppression of evidence. See Sabbath v. United States,
391 U.S. 585, 586 (1968) (holding under § 3901 that because
officers entered without knocking and announcing, the subsequent
arrest was invalid and the evidence seized inadmissible).
In resolving attenuation questions, this court has adopted
the multi-factor test set out in Brown v. Illinois to determine
whether the fruit of an unconstitutional violation should be
suppressed. 422 U.S. 590, 603-04 (1975). In Brown, the Supreme
Court held that Miranda warnings did not cleanse the taint of a
confession made pursuant to an unconstitutional arrest. See id.,
at 604-05.
Three factors have been distilled from Brown to evaluate the
connection between the constitutional violation and the
subsequent acquisition of evidence: (1) the temporal proximity of
the illegal conduct and the discovery of the evidence, (2) the
presence of intervening circumstances, and (3) the purpose and
flagrancy of the official misconduct. See id. at 603-04; United
States v. Vega, 221 F.3d 789, 801-02 (5th Cir. 2000) (applying
the test to find that consent did not purge the taint of an
unlawful search); United States v. Chavez-Villarreal, 3 F.3d 124,
128 (5th Cir. 1993) (applying the test to find coerced consent
did not purge the taint of an unlawful stop); United States v.
371 U.S. 471, 487-88 (1963) (internal quotations omitted).
21
Miller, 608 F.2d 1089, 1102-03 (5th Cir. 1979) (applying the test
to physical evidence).
Using the Brown factors, this court must analyze the two
“curative” events -- the elapsing of forty-five seconds and the
“movement” -- to determine if the failure to knock and announce
demands the suppression of evidence.
1. Temporal Proximity
Analyzing the first factor of “temporal proximity,” I find
that the forty-five seconds between the violation and the
subsequent entry was not sufficiently attenuated to cure the
unlawful action. Such a brief period of time standing alone is
almost enough to vitiate any attenuation claim.10 See United
10
As I noted in dissent in United States v. Sheppard,
The attenuation exception, however, requires greater
temporal distance than seconds or minutes. Supreme Court
decisions since Wong Sun have generally found that hours
must elapse before evidence is purged of its taint. Brown,
422 U.S. at 604 (statement separated from illegal arrest by
less than two hours not attenuated); Dunaway [v. New York],
442 U.S. at 203, 218 (incriminating statements made within
an hour of illegal arrest not sufficiently attenuated);
Taylor v. Alabama, 457 U.S. 687 (1982) (confession six
hours after illegal arrest not purged of taint of illegal
arrest).
901 F.2d 1230, 1239 (5th Cir. 1990) (King, J., dissenting)
(emphasis in original).
22
States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998) (finding that
ninety second time period between illegal stop and search does
not support government’s attenuation argument); Chavez-
Villarreal, 3 F.3d at 128 (finding that fifteen minute wait at
border between stop and search not enough to dissipate taint);
United States v. Tookes, 633 F.2d 712, 716 (5th Cir. Unit B 1980)
(finding passage of “few minutes” after illegal arrest and
discovery of firearm not enough to dissipate taint).
Further and more important, the forty-five second measure
does not take into account that the assault on the door was
continuous. Even, assuming arguendo, that an initial violation
of the knock and announce requirement could be cured by forty-
five seconds of peaceful police activity (i.e., lawfully
announcing their authority and presence), the objectives of the
knock and announce requirement are not served in the case of a
continuous assault. See United States v. Sagaribay, 982 F.2d
906, 909 (5th Cir. 1993) (finding the knock and announce rule to
serve several Fourth Amendment interests including (1) protection
of law enforcement officers and household occupants from
potential violence, (2) prevention of unnecessary destruction of
private property, and (3) protection for people from unnecessary
intrusion into their private activities). It is difficult, then,
to accept the government’s argument that time, alone, removed the
taint of the constitutional violation in this situation.
2. Intervening Circumstances
23
The second factor under Brown is whether there were any
“intervening circumstances” sufficient to break the causal chain
thus dissipating the taint of the initial illegality. The
district court relied on testimony that after the officers
attempted to enter the mobile home, “movement” was heard inside
the house. This movement, the court concluded, created an
exigency that then justified the officers’ entry.
“Exigent circumstances ‘include those in which officers fear
for their safety, where firearms are present, or where there is a
risk of a criminal suspect’s escaping or fear of destruction of
evidence.’” United States v. Rico, 51 F.3d 495, 501 (5th Cir.
1995). The burden is on the government to prove the existence of
the exigency. See id. The government argues that the movements
heard after they began the raid caused them to believe evidence
was being destroyed. This argument fails on two fronts.
First, the exigency on which the government relies was
almost certainly created by the unconstitutional act of forcibly
striking Cantu’s door without knocking and announcing. See
United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1997)
(“[T]he exigent circumstances exception does not apply if the
Government created or ‘manufactured’ the exigency”); Rico, 51
F.3d at 502 (“Just as exigent circumstances are an exception to
the warrant requirement, a police-manufactured exigency is an
exception to an exception.”); United States v. Richards, 994 F.2d
244, 247 (5th Cir. 1993) (“Exigent circumstances, however, do not
24
pass Fourth Amendment muster if the officers deliberately create
them.”). The officers testified that the movement occurred only
after Daigle used the haligan tool on the door.11 The
government, therefore, cannot meet its burden of demonstrating an
exigency not of its own creation.
“In determining whether the exigent circumstances were
manufactured by the agents, we . . . must consider not only the
motivation of the police in creating the exigency but also the
reasonableness and propriety of the investigative tactics that
generated the exigency.” Rodea, 102 F.3d at 1409. As presented
in the suppression hearing, the “investigative tactics” employed
in all narcotics raids in Calhoun County violated the requirement
of knocking and announcing before entering. The resulting
movement by Cantu or his family as a consequence of this unlawful
action cannot, now, be said to create an exigency that cures the
violation.12
The district court analyzed the “movement” under an exigency
test as opposed to the intervening circumstance test as required
by Brown. My review of the record, however, shows little support
11
This movement, it must be remembered, was Cantu and his family
being awakened at 1:00 a.m. by an unannounced police raid.
12
This is not to in any way judge the “motivation” of the
individual police officers in the raiding party. See Rico, 51 F.3d
at 502 (“Exigencies can be manufactured guilelessly or ulteriorly.
Although [t]here is no question that the deliberate creation of
urgent circumstances is unacceptable[,] . . . bad faith is not
required to run afoul [of the Fourth Amendment].” (citations
omitted) (alterations in original)).
25
to find an intervening circumstance significant enough to
dissipate the taint of the entry.
In Brown the court found no “significant” intervening
circumstance from the defendant’s initial illegal arrest and his
eventual confession. 422 U.S. at 604.13 The lack of an
intervening circumstance is even stronger in a case like Cantu’s
in which the evidence found is physical evidence as opposed to a
confession.14 See, e.g., Miller, 146 F.3d at 280 (finding no
13
Explicating its earlier attenuation holding in Wong Sun v.
United States, 371 U.S. 471 (1963), the Brown Court contrasted two
types of “intervening circumstances” that arose in that case. In
Wong Sun, the initial arrest without probable cause of James Wah
Toy led to the questioning and eventual discovery of narcotics in
Johnny Yee’s home. This discovery, in turn, led to the arrest of
Wong Sun. After arraignment Wong Sun was released, but later
voluntarily returned to give an incriminating statement to police.
The Supreme Court held that this act of returning was an
intervening circumstance, thus dissipating the taint of the
original illegal arrest. However, the court also held that the
discovery of physical evidence (narcotics) as a direct result of
Toy’s initial illegal arrest was not attenuated, and “did not
result from an intervening independent act of free will,” and thus
“was not sufficiently an act of free will to purge the primary
taint of the unlawful invasion.” Brown, 422 U.S. at 598 (emphasis
added) (quoting Wong Sun, 371 U.S. at 486).
14
Courts have held that lengthy time lapses cannot remove the
taint on physical evidence. See United States v. Ienco, 182 F.3d
517, 528 (7th Cir. 1999). Again, compare for example, in United
States v. Ceccolini, 435 U.S. 268, 275 (1978), the court held that
testimony of a witness discovered as a result of an illegal search
was admissible, despite a lengthy time lapse because the taint was
cleansed by an intervening act of free will. Importantly, the
court distinguished live testimony from the physical type of
evidence present in Cantu’s case:
[T]he exclusionary rule should be invoked with greater
reluctance where the claim is based on a causal relationship
between a constitutional violation and the discovery of a live
witness than when a similar claim is advanced to support
26
intervening circumstances where initial stop led directly to
search and discovery of drugs in motor home); Tookes, 633 F.2d at
716 (finding no intervening circumstance in defendant being
placed in back seat of police car and driven around the block
before pistol was discovered); see also United States v. Ienco,
182 F.3d 517, 528 (7th Cir. 1999) (formal arrest not an
intervening circumstance sufficient to attenuate discovery of
incriminating evidence); United States v. King, 990 F.2d 1552,
1564 (10th Cir. 1993) (abandonment of drugs not an intervening
circumstance).
Under a Brown analysis the “movement” cannot be considered
an intervening circumstance, because the officers had been trying
to enter all along. This was a single continuous assault.
Because the constitutional violation occurred before the
movement, and the officers intended to enter with or without
movement, far from being an “intervening circumstance,” the
movement seems irrelevant to the officers’ actions. I,
therefore, cannot accept that the “movement” in any way created
an exigency that cured or interrupted the execution of this
policy.
3. Purpose and Flagrancy of Official Misconduct
The final Brown factor for analysis is the purpose and
suppression of an inanimate object.
Id. at 275 (emphasis added).
27
flagrancy of the official misconduct. Here, the officers
executed an admittedly unconstitutional policy that ignored the
knock and announce requirements in contravention of the Fourth
Amendment. The officers testified to having performed this
breach then announce policy between fifteen to twenty other
times. In each case they presumably failed to knock and announce
their presence before entering the home. This practice meets the
“quality of purposefulness” required by the Court in Brown. See
422 U.S. 590, 605 (1975); see also Miller, 146 F.3d at 280
(finding flagrant or purposeful action in stopping a suspect
without probable cause); United States v. Causey, 818 F.2d 354,
361 (5th Cir. 1987) (finding illegal arrest “amounted to a
flagrantly abusive violation of Fourth Amendment rights.”).
“In the fourth amendment context, the ‘single and distinct’
purpose for the exclusionary rule is deterrence of police
violations of th[e] constitutional protection against
unreasonable searches and seizures.” United States v. Brookins,
614 F.2d 1037, 1046-47 (5th Cir. 1980); see also United States v.
Sheppard, 901 F.2d 1230, 1239 (5th Cir. 1990) (King, J.,
dissenting) (“[T]he exclusionary rule’s primary function is
deterrence.”). In this case, where the failure to knock and
announce was pursuant to a flagrant policy of disregarding the
Fourth Amendment, I am compelled to agree with the panel majority
that the district court’s order denying Cantu’s motion to
suppress should be reversed.
28
29