United States v. Don Michael Hudson

REINHARDT, Circuit Judge,

dissenting:

The majority concludes that, under the Supreme Court’s recent decision in Whren v. United States, — U.S. -, 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), the subjective motives of police officers “are not relevant where probable cause exists to support a particular police action.” The majority also interprets Whren to mean that searches and seizures supported by probable cause are not subject to a Fourth Amendment balancing analysis except under the “rare exception” of “searches and seizures performed in an extraordinary manner.” Having determined that Hudson’s arrest was supported by probable cause, and that the entry of Hudson’s home was not conducted in an “extraordinary manner,” the majority then concludes that the search and seizure were constitutional.

While the majority is correct in concluding that Whren constrains our decision in the present case to some extent, it inadvertently extends that decision considerably beyond its actual scope. As the Court acknowledged in Whren , reasonableness remains the touchstone of all Fourth. Amendment analysis. Here, given the nature of the police operation that occurred, we are required to examine closely all of the facts surrounding the invasion of the Hudson family home. Only by doing so can we properly address the question of reasonableness. In this case, we must perform a most careful constitutional balancing analysis of all relevant factors, notwithstanding the existence of probable cause. Such an analysis, even without regard to the officers’ motives in this case, leads inevitably to the conclusion that the overwhelmingly intrusive manner in which federal agents used their federal authority to arrest Hudson on a state charge and to collect evidence regarding a federal offense was unreasonable and therefore unconstitutional.

Whren addressed the particular question of “whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation was inconsistent with the Fourth

Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.” Whren , — U.S. at -, 116 S.Ct. at 1771-72 (emphasis added). In Whren , plainclothes officers performed a traffic stop, contemporaneous with an observed traffic violation, and “immediately observed two large bags of what appeared to be crack cocaine” in the passenger’s hands. Id. at -, 116 S.Ct. at 1772 . That was the complete extent of the intrusion involved. The present case, by contrast, involves the pre-dawn raid of the home of Hudson’s parents by a large federal task force pursuant to a state arrest warrant for their son issued because of a four-month-old sale of one-sixteenth of an ounce of narcotics — a quantity so small that federal prosecutors refused to bring any charges. Without even waiting for a peaceful response at the door, a twelve-member team of state and federal agents wielding weapons, search lights, and a bulletproof ballistic shield entered the family home, detained and handcuffed Hudson’s parents and younger brother, and videotaped the interior of their home, occupying it like a military force for over eight hours. In the Fourth Amendment context, where reasonableness is always the test of constitutionality, it is precisely such factual occurrences that define the boundary between what is constitutional and what is not.

Whren is not a case that dealt with core Fourth Amendment values. In addressing the particular question posed by traffic stops of an automobile traveling on a public road, the Whren Court did not purport to evaluate the critical and highly sensitive constitutional interests that are implicated by heavily armed, nighttime intrusions into the sanctity of a family home in order to arrest a family member. Nor did the Court consider whether a gross disproportionality between the severity of an offense and the intrusiveness of the subsequent search and seizure could render a search unreasonable within the meaning of the Fourth Amendment. These considerations, as well as others, dictate not only a different result in this ease, but also that we reach that result by applying the kind of delicate balancing analysis appropri *1422 ate to determining reasonableness under the Fourth Amendment, rather than a broad and sweeping rule that disregards the particular circumstances of the case at issue.

It is well settled that individuals are entitled to greater Fourth Amendment protection in the privacy of their homes than in a motor vehicle. While the temporary detention of a motor vehicle and its occupants “interfere^ with freedom of movement” and can create “substantial anxiety,” and thus constitutes a “seizure” within the meaning of the Fourth Amendment, Delaware v. Prouse, 440 U.S. 648, 656-57 , 99 S.Ct. 1391, 1397-98 , 59 L.Ed.2d 660 (1979), “the purpose of the stop is limited and the resulting detention quite brief’ in most cases, and the resulting intrusion is “limited -in magnitude compared to other intrusions.” Id. at 655, 661 , 99 S.Ct. at 1396, 1400 . The consequences of such intrusions are “minimal,” id., particularly when compared to the intrusion that accompanies the invasion of one’s home: 1 “It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466 U.S. 740, 748 , 104 S.Ct. 2091, 2097 , 80 L.Ed.2d 732 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134-35 , 32 L.Ed.2d 752 (1972)). “The sanctity of a person’s home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment.” United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994) (quoting Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990)).

The recognition that a heavily armed predawn raid of a family home injures fundamental constitutional interests is only the beginning of what ought to be our analysis in this ease. We must also consider the relationship between the severity of the offense that was offered to justify the search, and the intrusiveness of all of the aspects of the search that actually occurred. Gross dispro-portionality between the intrusiveness of a search or seizure and the relative importance of the underlying offense can, of course, render the search unreasonable and therefore unconstitutional, even when- the search is supported by probable cause. See Tennessee v. Garner, 471 U.S. 1, 8 , 105 S.Ct. 1694, 1699-1700 , 85 L.Ed.2d 1 (1985); Franklin v. Foxworth, 31 F.3d 873, 875-76 (9th Cir.1994); see also Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1871-72 , 104 L.Ed.2d 443 (1989) (determining reasonableness under the Fourth Amendment requires careful attention to all facts and circumstances “including the severity of the crime at issue”). Similarly, both the timing and manner of the police conduct must be considered: “reasonableness depends on not only when a seizure is made, but also how it is carried out.” Garner, 471 U.S. at 8 , 105 S.Ct. at 1699 ; Franklin, 31 F.3d at 875 .

Whren is not to the contrary. It remains perfectly clear that not every search or seizure is constitutional simply because it is supported by probable cause. As Whren itself acknowledges, a search or seizure must always be.“reasonable” in light of “all relevant factors”: “every Fourth Amendment case, since it turns upon a ‘reasonableness’ determination, involves a balancing of all relevant factors.” Whren , at -, 116 S.Ct. at 1776 . Whren makes it clear that, in the majority of cases, the existence of probable cause to believe that a traffic law has been violated will outweigh a citizen’s privacy interest in avoiding “unsettling” and “inconvenient” police contact. Id. at -, 116 S.Ct. at 1777 (quoting Delaware v. Prouse, 440 U.S. 648, 657 , 99 S.Ct. 1391, 1398 , 59 L.Ed.2d 660 (1979)). However, when a search or seizure supported by probable cause is performed in a particularly intrusive or harmful manner that calls into question the overall reason *1423 ableness of the police action, courts must balance “all relevant factors” to determine whether the search or seizure satisfies the fundamental requirement of reasonableness imposed by the Fourth Amendment. Id. at -, 116 S.Ct. at 1776 . Indeed, Whren itself cites various Supreme Court decisions in which this familiar Fourth Amendment balancing analysis was necessary notwithstanding the existence of probable cause. See id. at -, 116 S.Ct. at 1776 -77 (citing Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985); Welsh v. Wisconsin, 466 U.S. 740 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984); Winston v. Lee, 470 U.S. 753 , 105 S.Ct. 1611 , 84 L.Ed.2d 662 (1985); and Wilson v. Arkansas, — U.S. -, 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995)).

I note a variety of factors that compel a careful balancing analysis in this case. These include the facts that: the nighttime raid of a home was involved; the agents faded to announce themselves before entering the home; 2 they occupied the Hudson home for over eight hours, during which time the Hudson family was forced either to remain on a couch under police supervision or to seek other shelter in the middle of the night; 3 there was a glaring disproportionality between the intrusiveness of the raid and the four-month-old sale of sixty dollars’ worth of drugs that was offered to justify the raid; 4 and an arrest of the son of the owners of the home, not a search of the premises, was the ostensible justification for the predawn raid. In focusing exclusively on the existence of probable cause, the majority fails to consider these clearly relevant factors. Instead, my colleagues rely upon a discussion in Whren that it correctly charae- *1424 terizes as “dicta” for the proposition that searches and seizures supported by probable cause are subject to a balancing analysis only if they are conducted “in an extraordinary manner,” and they conclude that the present case does not fall within that “rare exception.” But the Whren dictum compels no such result. Understood in a manner consistent with precedent, an “extraordinary” search or seizure, in the sense in which the Court used that term in Whren , is simply one that is “out of the ordinary” — such as an armed assault on a family home in the middle of the night in order to arrest someone for a sixty-dollar drug sale that had pecurred over four months earlier at a different location. The notion that searches or seizures supported by probable cause and conducted in an ordinary manner are generally constitutional is hardly novel, see, e.g., Winston v. Lee, 470 U.S. 753, 759 , 105 S.Ct. 1611, 1615-16 , 84 L.Ed.2d 662 (1985), and certainly does not justify rejection of a balancing analysis in the present case. 5 What is truly “extraordinary” in this case is the notion that the search conducted here was an ordinary one.

When all of the facts are considered, it is plain that the search and seizure that occurred in this ease was “unreasonable.” In deciding to raid Hudson’s parents’ home, federal agents relied upon an informant’s statements that Hudson manufactured methamphetamine for the Hessians and that he had seen firearms in the Hudsons’ residence on some unspecified occasions in the past. This informant had purchased one-sixteenth of an ounce of methamphetamine from Hudson and asserted that he had observed Hudson trading methamphetamine for materials used in the manufacture of methamphetamine. Yet *1425 as the majority notes, the totality of the evidence, including that provided by the informant, justified neither a federal arrest warrant nor any kind of search warrant: federal prosecutors refused to bring any charges against Hudson on the basis of the sixty-dollar drug sale, and the federal agent who requested the state arrest warrant understood that he could not obtain a search warrant for the Hudson home. The small transaction that supported the state charge had occurred over four months earlier and at a different location. Indeed, the state prosecutor responsible for obtaining the state arrest warrant described Hudson as “kind of a peripheral guy5’ who had sold “a small amount” of narcotics: as he explained, “apparently the federal government didn’t want to handle a case that small.”

Notwithstanding the lack of probable cause to search Hudson’s home and the notable indifference of federal prosecutors to a case as “small” as Hudson’s, at 3:35 in the morning, a twelve-member team of federal and state agents wielding a bulletproof ballistic shield and search fights stormed the home, searched and handcuffed Hudson’s parents and younger brother, and detained them outside while sweeping the entire house. Hudson was found in his bedroom with his hands on his head; after removing him from his room, the officers performed a search of the room incident to his arrest, at which point they discovered the rifle and glassware that were admitted as evidence against him. Although Hudson’s father gave written consent to a search of his entire home, the agents refused to search the remainder of the house or to leave until a federal search warrant was obtained at noon the following day — over eight hours from the time that the raid began. During that eight-hour period, an ATF agent arrived and videotaped the interior of the house while the family remained on a couch in their living room.

The heavily armed raid on a family home in the middle of the night in order to arrest one family member, and the attendant disruption of a family’s peace and solitude, infringes on what may be our most deeply cherished privacy, safety, and property interests. When one adds the fact of the officers’ unannounced entry to the handcuffing and detention of the entire Hudson family, the videotaping of the contents of their home, and the militaristic occupation of their home that lasted over eight hours, it becomes difficult to imagine police conduct that could have struck more intrusively at the family’s basic right of privacy and security. Nor can the magnitude of this intrusion be explained or justified on the ground suggested by the government — the risk that Hudson might resist violently. Safety concerns weighed against the decision to arrest Hudson at home: as ATF Special Agent Manna acknowledged, “it would have been safer to arrest the defendant ... outside an area that he is familiar with.” And insofar as the agents were concerned by evidence that firearms were kept in the home, the most dangerous place to arrest Hudson was obviously at home.

Over the course of foür months, the government had ample opportunity to arrest Hudson away from his home, away from any perceived threat to officer safety, and in a dramatically less intrusivé manner. The truthful explanation for the awesomely intrusive approach that was actually taken — an explanation that the majority does not and cannot reject — is, of course, that the agents desired to collect evidence of other crimes. But that desire aloné — lacking the support of a search warrant that the agents knew they could not obtain — cannot render reasonable the pre-dawn raid on a private home, and the intimidation of an entire family, simply to execute a state arrest warrant issued on account of a sixty-dollar drug sale that took place four months earlier in a different place. A blitzkrieg of the Hudson family home was plainly not a reasonable manner in which to arrest Hudson for a rather minor crime. I respectfully dissent.

. Whereas the occupants of a motor vehicle enjoy only "reduced expectations of privacy" owing to "the pervasive regulation of vehicles capable of traveling on the public highways,” California v. Carney, 471 U.S. 386, 392 , 105 S.Ct. 2066, 2069 , 85 L.Ed.2d 406 (1985), individuals enjoy freedom and privacy in their homes that they enjoy nowhere else. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 367 , 96 S.Ct. 3092, 3096 , 49 L.Ed.2d 1000 (1976) (”[T]he expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.”); Stanley v. Georgia, 394 U.S. 557, 568 , 89 S.Ct. 1243, 1249-50 , 22 L.Ed.2d 542 (1969) (government’s otherwise broad power to regulate obscenity "simply does not extend to mere possession by the individual in the privacy of his own home”).

.The “simple and ancient requirement” that officers must announce themselves before entering a home, thereby giving the occupants an opportunity to cooperate and to admit the officers peacefully, "is based upon much more than a concern that our privacy will be disturbed. It is based upon concern for our safety and the safety of our families.” Becker, 23 F.3d at 1540 -41 (quoting United States v. Lockett, 919 F.2d 585, 592 (9th Cir.1990) (Fernandez, J., concurring)); see also, e.g., Miller v. United States, 357 U.S. 301, 313 , 78 S.Ct. 1190, 1197-98 , 2 L.Ed.2d 1332 (1958); United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir.1973). The Supreme Court has recently made it clear that this requirement, which is codified at 18 U.S.C. § 3109 , is also one of constitutional dimensions, the violation of which must be considered in determining the constitutionality of a search. See Wilson v. Arkansas, - U.S. -, -, 115 S.Ct. 1914, 1915-16 , 131 L.Ed.2d 976 (1995). Although I do not dispute the majority's conclusion that a "mild exigency" excused the government's noncompliance with the knock-and-announce requirement in this case, the unannounced entry of a home nevertheless implicates interests that the Fourth Amendment was designed to protect. Unannounced police invasions threaten to replace the sense of security and tranquility that we enjoy in our homes with a sense of fear. "[Tlhe Fourth Amendment protects us from that fear as much as it protects our privacy.” Becker, 23 F.3d at 1540 . Even if a violation of the knock-and-announce requirement is excused by the existence of an exigency, both the violation and the exigency that excuses it must still be weighed as part of an overall balancing of the interests that purportedly justify the search against the intrusion committed upon the privacy, safety, and property interests protected by the Fourth Amendment. See Wilson, — U.S. at -, 115 S.Ct. at 1919 ; infra note 5 (explaining why Wilson cannot be distinguished from the present case).

. Cf. Franklin v. Foxworth, 31 F.3d 873, 875-78 (9th Cir.1994) (forcing ill and elderly man to remain semi-nude on a couch for an hour rendered search of home unreasonable).

. The combined importance of the first and third of these factors — the special protections afforded • by the Fourth Amendment to persons in their homes, and the need for some reasonable proportionality between the severity of the offense and the intrusiveness of the resultant search and seizure — is aptly illustrated by the Supreme Court’s decision in Welsh v. Wisconsin, 466 U.S. 740 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984). In Welsh , police learned that an erratically driven car had swerved off the road and that its driver was either inebriated or sick. After checking the vehicle's registration, police proceeded without a warrant to Welsh’s home, where they were admitted by Welsh’s stepdaughter, and found Welsh lying naked in bed. The Court held that probable cause could not justify “a warrantless, nighttime entry into the petitioner's home to arrest him for a civil traffic offense." Id. at 754 , 104 S.Ct. at 2100 . Such an intrusion, it explained, was "clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment." Id. Although the warrantless entry of Welsh’s home could have been justified by the existence of both probable cause and exigent circumstances, the Court refused to find that any exigency existed in light of the "relatively minor” nature of Welsh’s offense: "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying *1424 offense for which the arrest is being made.” Id. at 750, 753 , 104 S.Ct. at 2097, 2099 .

. Moreover, even under the majority's narrow, rule-based approach to determining whether a balancing analysis is necessary, the mere fact that the officers faffed to announce themselves before entering the Hudson home requires such an analysis in this case. In Wilson v. Arkansas, - U.S. -, 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995)—cited with approval in Whren as an example of a case involving a search conducted in an "extraordinary manner” — the Court held that the unannounced entry of a private home and the execution therein of search and arrest warrants were subject to a balancing analysis. In that case, Arkansas police obtained warrants to search Wilson’s home and to arrest Wilson. The officers opened an unlocked screen door and found the main door to her home open. Only while entering her home did the officers identify themselves and state that they had a warrant. Once inside, the officers seized various narcotics and narcotics paraphernalia, a firearm, and ammunition. Id. at - - -, 115 S.Ct. at 1915—16. The state courts rejected Wilson’s argument that the Fourth Amendment requires police to knock and announce themselves prior to entering ahorne. Id. at - - -, 115 S.Ct. at 1916 . Holding that failure to comply with the knock-and-announce requirement could render a search or seizure in a home unconstitutional, the Supreme Court reversed and remanded for determination of whether the search was “unreasonable” in light of the officers' failure to announce prior to entry. Id. at -, 115 S.Ct. at 1918-19 . In short, because police failed to announce themselves before entering Wilson's home through an open door, a reasonableness analysis was appropriate in Wilson even though the search and seizure in question had been conducted pursuant to a warrant.

Wilson is directly controlling and requires a reasonableness analysis in the present case. The majority attempts to distinguish Wilson on the ground that the officers in the present case "did knock and announce their authority and purpose, and were therefore justified in not awaiting a response before entering.” This distinction is completely groundless, both as a matter of fact and as a matter of law. First, as a matter of fact, the manner of entry in the two cases cannot be distinguished. In both cases, the police were required to open an unlocked screen door in order to reach the main door of the residence, but in neither case were they required to open the main door. In Wilson , the main door was open, id. at -, 115 S.Ct. at 1915 , while in the present case, the main door was unlatched and opened with the force of an officer’s knock. In both cases, the officers knocked and announced themselves, but in neither case did they await a response before entering. Second, as a matter of law, the fact that the officers “did knock and announce their authority and purpose” could not have “therefore justified” their failure to await a response: it is an obvious and indispensable part of the knock-and-announce requirement that police await a response before entering. See, e.g., id. at -, 115 S.Ct. at 1919 (“[A] search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement.") (emphasis added); United States v. Ramirez, 91 F.3d 1297, 1299 (9th Cir.1996) (invalidating search in which police announced themselves over a loudspeaker system but "without waiting for a response, ... broke the window of the garage and began waving a gun through that window”); United States v. Becker, 23 F.3d 1537, 1539-42 (9th Cir.1994) (invalidating search in which police “loudly announced themselves and simultaneously kicked the door in and entered”) (emphasis added).