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.

3