# United States v. James Brown > Court of Appeals for the Second Circuit · April 12, 1995 · 52 F.3d 415 URL: https://www.frixlaw.com/law-library/cases/9487983 ## Case - **Full name:** UNITED STATES of America, Appellee, v. James BROWN, Defendant-Appellant - **Court:** Court of Appeals for the Second Circuit - **Decided:** April 12, 1995 - **Citations:** 52 F.3d 415; 1995 U.S. App. LEXIS 8454; 1995 WL 215850 - **Precedential status:** Published - **Opinion:** Concurrence by Leval - **Judges:** Kearse, Leval, Glasser - **Cited by:** 91 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by United States v. Davis, 319 F. Supp. 3d 608 (2018). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487983 ## How later opinions describe it (automated extraction) - explaining that the rule established by Pforzheimer, that federal exclusionary law is applicable in federal court even when state officers are involved in the case, is dictated in large part by the need for uniform rules in federal court - holding that a presentence report prepared in connection with a prior conviction is properly consulted by the sentencing district court to determine if the defendant’s prior conviction was for a crime of violence - applying Taylor’s, categorical approach and concluding that a prior conviction under New York’s robbery statute is per se a violent felony and thus that prior conviction was correctly regarded as a predicate offense for the purpose of sentence enhancement - finding reasonable suspicion where defendant had been charged with a crime of a serious and violent nature and had previously attempted to collect a drug-related debt with a pump-action shotgun - concluding that forcible stealing under New York law, which is defined in a similarly worded statute, is categorically a crime of violence ## Opinion text LEVAL, Circuit Judge, concurring: I concur in Judge Glasser’s opinion and especially in his conclusion that exigent circumstances justified bypassing any applicable knock-and-announce requirement. The officers’ information showed that the occupants of the home included professional drug dealers, probably armed, one of whom had a criminal record and had gone with an armed man to collect a drug debt. This gave adequate reason for the officers to fear for their safety if they forfeited the element of surprise by knocking, announcing their presence, and requesting admittance. The likelihood that such dealers could in seconds flush drug evidence down a toilet furnished additional justification. I write separately, however, to note my disagreement with the passage where Judge Glasser, in dictum, discusses his view that, in the interest of uniformity in federal court rulings, a statute regulating the conduct of federal officers performing a search should be held retrospectively to cover state officers as well if evidence uncovered by their search is later offered in a federal criminal trial. In my opinion, this suggested rule is supported by neither reason nor authority, and, if adopted, would cause serious problems in the administration of justice. Judge Glasser cites several cases which, to my mind, do not support his conclusion because they address different problems. United States v. Pforzheimer, 826 F.2d 200 (2d Cir.1987), was a federal narcotics prosecution in which the government offered evidence seized by Vermont state officers using procedures which the defendant claimed violated Vermont law, although it was clear the officers did not violate federal law. The defendants argued that the alleged violation of Vermont law should cause exclusion of the evidence from the federal prosecution. Id. at 202 . This court rejected the argument, holding that only the requirements of federal law needed to be satisfied to make the evidence admissible, and that more stringent requirements of state law would not be applied to bar admission in a federal prosecution. Id. at 203-04 . Although it is true that the opinion expresses this conclusion by using phrases such as “federal law should apply to this federal criminal prosecution,” id. at 204 , what was really meant was that only the applicable federal law requirements needed to be satisfied, not also the state law requirements. That holding in no way supports the proposition that a federal statute governing the conduct of federal officers, and not state officers, should be held to cover the state officers as *427 well should the fruits of their search be offered in federal court. Similarly in United States v. Smith, 9 F.3d 1007 (2d Cir.1993), the defendant argued that violations of state law should result in suppression of the seized evidence offered in a federal prosecution, even though the seizure comported with federal requirements. We refused to consider whether state law had been violated. We ruled, citing Pforzheimer , that violations of state law by state officers would not result in exclusion of evidence from a federal trial. Id. at 1014. Closer to the mark is United States v. Turner, 558 F.2d 46 (2d Cir.1977), which applied Fed.R.Crim.P. 41 to state officers participating in a drug investigation. In this case, however, it was by reason of the participation of federal officers in the search — not by reason of the subsequent offer of the evidence in federal court — that the federal rule was deemed applicable. 558 F.2d at 49 ; see also United States v. Burke, 517 F.2d 377 (2d Cir.1977). Thus, the cases cited in Judge Glasser’s opinion do not indicate that a federal statute governing the execution of a search by federal officers becomes applicable to state officers if the evidence they seize is later offered in a federal prosecution. I recognize that the Supreme Court is presently considering whether the knock- and-announce rule dictated by § 3109 is also mandated by the Fourth Amendment’s reasonableness requirement. Wilson v. State, 317 Ark. 548 , 878 S.W.2d 755, 758 (rejecting claim that § 3109 is required by the Fourth Amendment), cert. granted, — U.S. -, 115 S.Ct. 571 , 130 L.Ed.2d 488 (1994); see Ayeni v. Mottola, 35 F.3d 680 , 687 n. 9 (2d Cir.1994) (Section 3109 coincides with the requirements of the Fourth Amendment); Rivera v. United States, 928 F.2d 592, 606 (2d Cir.1991) (Fourth Amendment requires officers to provide notice of identity and imminent entry); but see United States v. Sagaribay, 982 F.2d 906, 909-10 (5th Cir.) (Fourth Amendment does not incorporate § 3109), cert. denied, — U.S. -, 114 S.Ct. 160 , 126 L.Ed.2d 120 (1993). If the Supreme Court decides that § 3109 is constitutionally required, then it will, of course, apply regardless of whether state or federal officers conduct the search, and regardless whether the evidence is ultimately offered in state or federal court. Nor do I dispute, even in the absence of a constitutional mandate, that there are factors present in this case which make it reasonable to apply the dictates of § 3109. Here we have: (i) an investigation conducted in part by federal officers; (ii) a warrant issued on the basis of criminal acts covered by the federal criminal law; (iii) extensive participation in the search by federal officers (five federal officers were present); and (iv) the evidence presented in federal court. This combination of factors provides ample reason for finding § 3109 applicable. Judge Glasser’s suggested rule, however, relies solely on the eventual offer of seized evidence in federal court to make § 3109 retroactively applicable to a state search. There are good reasons why § 3109 should not be interpreted in the manner Judge Glas-ser suggests. By his reasoning, even if the investigation and search had been 100% state operations, seeking evidence of a state crime, and a state prosecution had first been successfully conducted on the basis of the seized evidence, the eventual offer in a subsequent federal trial of a piece of evidence gathered in the search would retroactively make § 3109 applicable and require suppression. Were we to adopt such an interpretation of federal laws, it would cause confusion, surprise and illogical results, unjustifiably preventing successful prosecution of criminals. State officers presumably take pains to conform their conduct to the constitutional and state law rules that govern them. When they conduct a search under a state warrant covering a state offense, they have no way of guessing that the search may reveal evidence of unsuspected federal crimes. If it does, the later prosecution of those crimes in federal court will retrospectively bring to bear an unfamiliar set of statutes and rules apparently covering different officers. The fruits of the search will be suppressed from the federal prosecution although the state officers at the time the search was conducted had no reason to believe they were doing anything *428 wrong. I cannot agree that this would be a desirable (or intended) interpretation of our federal statutes and rules, even if it led to greater uniformity of rulings in federal court. By allowing the guilty to go free without deterring police misconduct, it would bring about all the harms of a suppression rule without any of the benefits. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487983. Public record. Not legal advice.