Petition for Writ of Certiorari — WJM Realty, Inc. v. State Roads Commission of the Maryland Highway Administration

Supreme Court, U.S.

FILE D

96146 9 Map 17 1997

No. Ak OF THE CLARK

In the Supreme Court of the United States

OCTOBER TERM, 1996

UNITED STATES OF AMERICA, PETITIONER

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

ALAN JENKINS

Assistant to the Solicitor

General

J. DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether police officers must possess more specific

evidence of danger to themselves or others in order to

justify a no-knock entry in which they damage a door

or window than would be required to justify a no-

knock entry made without damage to property.

TABLE OF CONTENTS

Page

— . 1

rr !!! ! e eee 1

Constitutional and statutory provisions involved ......... 2

eee eee 2

Reasons for granting the petition . . . . 9

r ee ee neee eee 22

11 —— la

1 . —ßr—öẽ 7 28a

˖—— 37a

12 A 42a

„„ 48a

TABLE OF AUTHORITIES

Cases:

Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995) 19

Buckley v. Beaulieu, 104 Me. 56 (1908) ................. 14

Chimel v. California, 395 U.S. 752 (1969) .............. 16

Dalia v. United States, 441 U.S. 238 (1979) .......... 12

Graham v. Connor, 490 U.S. 386 (1989) ................ 14

Illinois v. Gates, 462 U.S. 213 (1983) . 17

Illinois v. Rodriguez, 497 U.S. 177 (1990) .............. 17

Ker v. California, 374 U.S. 23 (1983) . 17

Maryland v. Buie, 494 U.S. 325 (1990) ... . 15

Maryland v. Garrison, 480 U.S. 79 (1987) ............ 14

Maryland v. Wilson, No. 95-1268 (Feb. 19,

r 15

Michigan v. Long, 463 U.S. 1032 (1983) ................ 15

Michigan v. Summers, 452 U.S. 692 (1981) .......... 13, 15

Payton v. New York, 445 U.S. 573 (1980) ............. 18

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ....... 15

Read v. Case, 4 Conn. 166 (1822) 11

Sabbath v. United States, 391 U.S. 585 (1968) ..... 10, 11

Terry v. Ohio, 392 U.S. 1 (1968) . . . . . 16

(III)

Cases—Continued: Page Miscellaneous:

United States v. Becker, 23 F.3d 1537 (9th Cir. 2 Wayne R. LaFave, Search and Seizure (3d ed.

. iE ash LL 4 7,12 14.19 eee eee eee

United States v. Brown, 52 F.3d 415 (2d Cir.

1995), cert. denied, 116 S. Ct. 754 (1996) 20

United States v. Dahlman, 13 F.3d 1391 (10th

Cir. 1993), cert. denied, 511 U.S. 1045 (1994) .. 19.20, 21

United States v. Gordils, 982 F.2d 64 (2d Cir.

1992), cert. denied, 507 U.S. 1054 (1993) .............. 20

United States v. Kemp, 12 F.3d 1140 (D.C. Cir.

2 ͤ— 7 10, 13

United States v. Kennedy, 32 F.3d 876 (4th Cir.

1994), cert. denied, 115 S. Ct. 989 (1995) ............... 19

United States v. Lalor, 996 F.2d 1578 (4th Cir.),

cert. denied, 510 U.S. 983 (1993) .. . 19

United States v. Maden, 64 F.3d 1505 (10th Cir.

—...ñ ̃ Üꝛ—R3 . tates 20

United States v. McConney, 728 F.2d 1195 (9th

Cir.), cert. denied, 469 U.S. 824 (1984) .................. 12

United States v. Spinelli, 848 F.2d 26 (2d Cir.

—— ͤ œ0ꝗZ — ⁵ rÜ’à1— 20

United States v. Stewart, 867 F.2d 581 (10th

K . 20

United States v. Stowe, 100 F.3d 494 (7th Cir.

1996), petition for cert. pending, No. 96-7439 ........ 20

United States v. Whitney, 633 F.2d 902 (9th Cir.

1980), cert. denied, 450 U.S. 1004 (1981) ............... 14

Vale v. Louisiana, 399 U.S. 30 (1970) ................... 18

Wilson v. Arkansas, 115 S. Ct. 1914 (1995) ........... 8, 10,

11, 12, 19

Ybarra v. Illinois, 444 U.S. 85 (1979) . .. 18

Constitution and statutes:

U.S. Const. Amend. IV. . 2, 5, 11, 13, 15, 16, 18

1 cnnnncccseunsscomensmenestetennntiinnindentins 2,5

BD WEA, —%ů — 2, 5, 10, 11, 16, 18

In the Supreme Court of the United States

OCTOBER TERM, 1996

No.

UNITED STATES OF AMERICA, PETITIONER

.

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the

United States, petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

27a) is reported at 91 F.3d 1297. The opinion of the

district court (App., infra, 28a-36a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 2, 1996. A petition for rehearing was denied

on November 15, 1996 (App., infra, 48a). On February

4, 1997, Justice O’Connor extended the time for filing

a petition until March 15, 1997 (a Saturday). The

(1)

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be vio-

lated, and no warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

Section 3109 of Title 18 of the United States Code

provides:

Breaking doors or windows for entry or exit

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.

STATEMENT

A grand jury in the District of Oregon returned an

indictment charging respondent with possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

922(g)(1). Respondent moved to suppress evidence ob-

tained during a search of his residence, including the

two firearms that formed the basis for the offense

charged in the indictment. The district court granted

3

the motion. App., infra, 28a-36a. The court of appeals

affirmed. Id. at la-27a.

1. On November 2, 1994, while en route to testify at

a state criminal trial, federal inmate Alan Lawrence

Shelby slipped out of his handcuffs, assaulted a depu-

ty sheriff, and escaped from custody. At the time,

Shelby was serving concurrent sentences for federal

drug and firearms violations, and for a state armed

robbery conviction. App., infra, 2a, 32a-33a. On

November 4, 1994, Deputy U.S. Marshal Wayne

Kauffmann applied for a warrant to search respon-

dent’s residence in Boring, Oregon, for Shelby. /d. at

41a. The affidavit in support of the warrant applica-

tion recounted that a reliable confidential informant

had seen a person believed to be Shelby at respon-

dent’s residence. The person had been introduced to

the informant as “Alan,” and had stated in the infor-

mant’s presence, “I had to knock out a guard.” Id. at

39a. According to the affidavit, after receiving that

information, the informant and an agent with the

Bureau of Alcohol, Tobacco, and Firearms had driven

past respondent’s residence and seen a man “who they

believed to be Alan Shelby outside the residence.” Id.

at 39a-40a. Deputy Marshal Kauffmann’s affidavit

further stated that he had then driven to respondent’s

residence and seen someone who, Kauffmann believed,

was the same person seen by the ATF agent. Id. at

40a.

The affidavit also described the basis for Deputy

Marshal Kauffmann’s belief that “Shelby is an ex-

treme danger to law enforcement officers.” App.,

infra, Ala. In particular, it stated that Shelby had

previously been convicted of conspiracy to manu-

facture methamphetamine, possession of metham-

phetamine with intent to distribute it, and using or

carrying a firearm during and in relation to a drug

trafficking offense; that Shelby “had a history of

violent escapes”; and that Shelby had stated that he

would not “do federal time.” Jd. at 38a.

According to the affidavit, in 1991 Shelby had at-

tempted to escape from custody “by striking a correc-

tions officer in the face and kicking out the door of the

jail. Shelby ran from the jail and assaulted a woman

in a parking lot and stole her vehicle. During the

escape attempt, Shelby rammed a police vehicle with

the stolen vehicle.“ App., infra, 38a. The affidavit

further stated that Shelby “has made threats to kill

witnesses and police officers associated with his in-

carceration“ and that he “has brutally tortured

others in the past with a hammer.” Id. at 38a-39a.

Finally, the affidavit stated that Shelby “has had ac-

cess to large caches of weapons.” Id. at 39a. See also

id. at 33a.

Based on the information in the affidavit, a magis-

trate judge issued a warrant to search respondent's

residence for Shelby. The warrant expressly pro-

vided that, “because of exigent circumstances shown

in the application, you are authorized to enter the

premises without complying with the Knock-and-

Announce requirement.” C.A. E.R. 27.

Before they executed the warrant, officers learned

from the informant that respondent Ramirez “was

possibly involved in drugs, which he kept in the

garage,” and that “there were supposed to be several

guns in [respondent’s] garage.” App., infra, 3a, 33a,

43a-44a. On November 5, 1994, at about 6:15 a.m.,

approximately 45 law enforcement officers surround-

ed respondent’s house. Using a loudspeaker, a police

officer announced the officers’ presence and ordered

the occupants of the dwelling to come out. At the

5

same time, a police officer broke open the window of

the garage attached to the house, while another

officer shouted “Sheriff’s Office, Search Warrant.”

Id. at 3a-4a, 29a, 44a.

Awakened by the police activity, respondent ini-

tially thought that his house was being burglarized.

He ran to a closet, obtained a gun, and fired it into the

ceiling. A short time later, respendent realized that

the police had surrounded the house, and he surren-

dered. After receiving and waiving his Miranda

rights, respondent admitted that he was a convicted

felon and that he owned the gun that he had fired, as

well as another firearm. Respondent further admit-

ted that a man resembling Shelby had been at his

house two days earlier. Based on respondent’s state-

ment, and the officers’ observation of the gun respon-

dent had fired, the officers obtained a second search

warrant and seized the two firearms. App., infra, 4a,

29a, 45a-46a.

2. Respondent was charged with possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

922(g¢)(1). He moved to suppress the firearms seized

from his house, and the district court granted the

motion. App., infra, 28a-36a. The court found that the

warrant to search respondent’s house for Shelby was

supported by probable cause. Id. at 30a-3la. It con-

cluded, however, that the officers had violated the

federal knock-and-announce statute, 18 U.S.C. 3109,

and the Fourth Amendment because their reasons for

making an unannounced entry were insufficient to

justify breaking the window of Ramirez’s garage as

they announced their presence. App., infra, 3la-35a.

The court stated that, under Ninth Circuit prece-

dent, “mild exigency, such as knowledge that a person

is dangerous, can justify an immediate entry that is

6

done without physical destruction of property,” but an

“entry that is accomplished by physical destruction

of property [requires] more specific inferences of

exigency.” App., infra, 32a (citing United States v.

Becker, 23 F.3d 1537, 1540-1541 (9th Cir. 1994)). The

court acknowledged that “there were specific facts

known regarding Shelby’s propensity to attempt es-

cape, his disdain for federal incarceration, and his

past willingness to use threats and violence as a

means of intimidation.” Jd. at 34a. Those facts, the

court concluded, presented “sufficient exigent cir-

cumstances to have allowed immediate entry into [re-

spondent’s] residence where entry could be obtained

without physical destruction of property.” Id. at 33a.

The court held, however, that the government had

not demonstrated sufficient exigency to justify break-

ing respondent’s window during the search because

“there was no information that [Shelby] was armed

and dangerous at [respondent’s] home, or that he

would present any specific dangers to arresting of-

ficers if found there.” App., infra, 34a. In the court’s

view, the officers’ decision to break a garage win-

dow in the course of serving the warrant, “although

prompted by a knowledge of Shelby’s past, was not

sufficiently supported by circumstances suggesting

that the fugitive posed a particular danger to others

during this attempted apprehension.” Id. at 34a-35a.

Because it concluded that the bases for the second

search warrant, and the subsequent seizure of re-

spondent’s firearms, were “direct consequences of the

manner in which the first warrant was executed,” the

court ordered that the weapons be suppressed. Id. at

35a.

3. A divided panel of the court of appeals affirmed.

App., infra, la-27a. The majority stated that “exigent

7

circumstances can justify breaking into a house with-

out notice.” Jd. at 8a. It further stated, however,

that, “[wJhen exigency is claimed, we must determine

what kind of exigency it was.” Ibid.

Like the district court, the majority employed the

two-tiered analysis required by circuit precedent. It

explained that, while “even a mild exigency, like

knowledge that a person is dangerous, can justify

immediate entry where that can be done without any

physical disruption of property,” App., infra, 8a (quot-

ing Becker, 23 F.3d at 1540), “[mJore specific infer-

ences of exigency are necessary” where the destruc-

tion of property is involved, ibid. (quoting Becker, 23

F. 3d at 1541).

Applying that test, the majority held that a

sufficient level of exigency had not been shown here:

The 45 officers did not fear any of the actual

residents of the house and were not attacking a

gang or cult hangout where they might be met by

a fusillade of gunfire. They were concerned about

one person, Shelby, who might be on the premises.

But Shelby was not known to have ever shot or

shot at anyone. He was an escape artist, who said

he would not go to federal prison. He had knocked

people down in his escape attempts, and he had

stolen a car and run into a police vehicle. His

violence towards law enforcement had not ex-

tended beyond that, even though he had obviously

been arrested on some occasions. Perhaps his

degree of dangerousness bespoke a mild exigency.

Certainly it did not bespeak more.

App., infra, 9a. Because it found that the government

had failed to adduce “specific evidence that Shelby

was armed, that he would use firearms against the

8

officers, or that when he was faced with [a] show of

force he would do anything violent at all,” id. at 1lla-

12a, the court concluded that respondent’s “statutory

and Fourth Amendment rights were violated when

government agents broke into his home in the early

morning hours without complying with the knock-

and-announce requirements,” id. at 17a.

Judge Kozinski dissented. App., infra, 18a-27a. He

argued that At he record contradicts the majority’s

romantic description of Shelby,” who was, in Judge

Kozinski’s view, “a hardened and desperate criminal.”

Id. at 18a. Judge Kozinski emphasized that the

officers knew that Shelby had “a history of violent

escapes,” had “[a]ssault{ed] helpless civilians” and

law enforcement officers in effecting those escapes,

and had engaged in brutal] tortur[e].” Id. at 19a-20a.

The dissent further observed that officers had spe-

cific information about Shelby’s access to firearms.

Id. at 20a. Based on those facts, the dissent argued

that the officers had “properly balanced the home-

owner’s privacy and property interests against the

dictates of security.” Id. at 23a-24a (citing Wilson v.

Arkansas, 115 S. Ct. 1914, 1918 (1995)).’

The majority further concluded that the “seizure of the

guns * * * came as the most direct, if not the only, result of

the” police “break-in,” and that “suppression would serve to

dissuade the police from this kind of unnecessary invasion of

people’s homes.” App., infra, 13a.

2 Judge Kozinski also dissented on the ground that, “[e]ven

had the no-knock search been illegal, this would provide no

grounds for suppression of the evidence pertaining to

{respondent].” App., infra, 24a.

REASONS FOR GRANTING THE PETITION

The court of appeals did not doubt that the officers

who executed the search warrant in this case rea-

sonably believed that providing advance notice of their

presence and purpose would have increased the risk of

danger they faced in seeking to apprehend an escaped

fugitive who had a history of violent acts. In con-

cluding that the immediate entry to execute the war-

rant was illegal, however, the court of appeals em-

ployed a two-tiered analysis focusing on property

damage. Under the court’s test, when officers break

property to effect a no-knock entry, that action

significantly elevates the showing of potential harm

required to justify the entry. Applying that test

here, even the minor damage to property involved in

this case (breaking a garage window) imposed on the

officers the need to have Imlore specific inferences

of exigency” (App., infra, 8a) than the evidence that

the officers had: that a person sought within the

house was an escaped fugitive with a prior history of

violence.

The Ninth Circuit’s two-tiered approach to no-

knock entries is incorrect, because it erroneously

makes property damage the determinant of how spe-

cifically officers must be able to infer a risk of danger

before they may make a no-knock entry. The ques-

tion whether officers may make an unannounced, no-

knock entry should turn instead on whether the

officers reasonably believe that giving prior notice of

their presence and purpose, and providing a grace

period for occupants to open the door, would expose

the officers to a risk of danger, would facilitate a

fugitive’s escape, or would likely prompt the destruc-

tion of evidence. The Ninth Circuit’s bifurcated

10

approach is also unique. In no other circuit would the

government face an increased burden to justify a no-

knock entry simply because property damage oc-

curred in the course of the entry. Because the Ninth

Circuit’s approach is wrong, conflicts with the ap-

proach employed in other circuits, and threatens to

jeopardize the safety of law enforcement officers in

the dangerous task of executing warrants, review by

this Court is warranted.

I. a. In Wilson v. Arkansas, 115 S. Ct. 1914 (1995),

this Court held that the common-law knock-and-

announce principle is “an element of the reasonable-

ness inquiry under the Fourth Amendment,” such

that “in some circumstances an officer’s unannounced

entry into a home might be unreasonable under the

Fourth Amendment.” Jd. at 1918. One of the inter-

ests that underlie the knock-and-announce principle

is the avoidance of damage to property. See id. at

1918-1919; United States v. Kemp, 12 F.3d 1140, 1142

(D.C. Cir. 1994); 2 Wayne R. LaFave, Search and

Seizure § 4.8(a), at 599 (8d ed. 1996). But the more

fundamental interest protected by the announcement

principle is the avoidance of unnecessary surprise to

the occupants of a dwelling that is about to undergo

a warrant-authorized search. As the Court held in

Sabbath v. United States, 391 U.S. 585 (1968), the use

of “force” in effecting an unannounced entry is not

necessary to trigger the federal knock-and-announce

provision, 18 U.S.C. 3109. Although Section 3109 uses

the phrase “break open,” the Court explained that

Hahn unannounced intrusion into a dwelling—what

§ 3109 basically proscribes—is no less an unan-

nounced intrusion whether ecfficers break down a

door, force open a chain lock on a partially open door,

open a locked door by use of a passkey, or * * * open

11

a closed but unlocked door.” 391 U.S. at 590; see also

ibid. (“The protection afforded by, and the values

inherent in, § 3109 must be governed by something

more than the fortuitous circumstance of an unlocked

door.”) (internal quotation marks omitted).

While recognizing the knock-and-announce princi-

ple, the Court in Wilson also emphasized that the

Fourth Amendment’s “flexible requirement of rea-

sonableness should not be read to mandate a rigid rule

of announcement that ignores countervailing law

enforcement interests.” 115 S. Ct. at 1918. Without

delineating “a comprehensive catalog” of the factors

that could overcome the “presumption in favor of

announcement,” id. at 1918-1919, the Court noted, by

way of example, that an unannounced entry may be

justified “under circumstances presenting a threat of

physical violence,” ibid., “where police officers have

reason to believe that evidence would likely be de-

stroyed if advance notice were given,” id. at 1919, and

“where a prisoner escapes * * * and retreats to his

dwelling.” Ibid. (citing Read v. Case, 4 Conn. 166, 170

(1822) (plaintiff who “had resolved * * * to resist

even to the shed eng of blood * * * was not within

the reason and spirit of the rule requiring notice”)).

b. The court of appeals in this case applied its long-

standing rule that, when officers enter to execute

a warrant without a prior announcement, the speci-

ficity of their knowledge of the potential dangers

Although Sabbath involved Section 3109, both that provi-

sion and the Fourth Amendment incorporate the common-law

announcement principle—and the acknowledged grounds for

dispensing with a prior announcement. See Wilson, 115 S. Ct.

at 1918 n.3 (noting that in Sabbath, 391 U.S. at 591 n.8, the

Court suggested that both the “‘common law’ rule of announce-

ment and entry and its ‘exceptions’ were codified in § 3109”).

12

resulting from a prior announcement must be greater

if the unannounced entry entails even minor “physi-

cal disruption of property.” App., ra, Sa (quoting

United States v. Becker, 23 F.3d 1537, 1540 (9th Cir.

1994)). See also United States v. McConney, 728 F.2d

1195, 1206 (9th Cir.) (en banc), cert. denied, 469 U.S.

824 (1984). Under that approach, where property dam-

age occurs during a no-knock entry to execute a

warrant, officers must demonstrate “[mJore specific

inferences of exigency” (App., infra, 8a) than the

serious risk of harm to officers and others that ex-

isted in this case.

The Ninth Circuit’s approach is incorrect. As the

Court recognized in Wilson, an unannounced, no-

knock entry may be justified by the valid law enforce-

ment interests that exist when officers reasonably

believe that advance notice might increase the risk of

harm to officers or frustrate the purpose of the

search. 115 S. Ct. at 1918-1919. The need to damage

property in making an unannounced entry has no

bearing on whether those law enforcement interests

are present. When the requisite peril to officers

exists, or there are other risks that make it reason-

able for officers to employ the element of surprise, it

should not matter whether the fortuity of an unlocked

door or open window enables officers to execute an

unannounced entry without breaking property, or, as

is more common, the physical characteristics of the

doors and windows make it necessary for officers to

break property to enter. Cf. Dalia v. United States,

441 U.S. 238, 257 n.19 (1979) (“[O}ften it is impossible

to anticipate when lit] will be necessary” for officers

to engage in “forceful breaking and entering * * * to

effect a warranted search.”). In either situation, the

justification for the immediate entry is the need for

13

surprise; that need does not diminish simply because

minor property damage may be necessary.

Indeed, the breaking of a window may be a means to

distract the occupants and thereby greatly increase

the officers’ ability to gain quick control of the

situation. By drawing the occupants’ attention to the

sound of breaking glass, officers may be able to divert

the occupants into less threatening positions and

thereby reduce the risk of violence. Cf. Michigan v.

Summers, 452 U.S. 692, 702-703 (1981) (“The risk of

harm to both the police and the occupants is mini-

mized if the officers routinely exercise unquestioned

command of the situation.“). Thus, the question

whether an unannounced entry is justified should

turn on whether law enforcement interests would be

jeopardized by giving advance warning, not on

whether property is damaged during the entry. And

where “knowledge that a person is dangerous” (App.,

infra, 8a) would justify unannounced entry through

an open door or window, no greater or more specific

showing should be required merely because a locked

door or window makes a degree of property damage

necessary to safe execution of the warrant.

That is not to say that destruction of property has

no place in analyzing the reasonableness of the entry.

Excessive or wholly unnecessary destruction of prop-

erty by law enforcement officers in the execution of a

warrant may violate the Fourth Amendment’s reason-

ableness standard, whether or not officers knock and

announce before entry. See 2 LaFave, Search and

Seizure § 4.10(d), at 673-674 (describing “the long-

standing requirementſ] that the officers * avoid

unnecessary damage to the premises”) (emphasis

added); Kemp, 12 F.3d at 1142 (interests advanced by

statutory knock-and-announce requirement include

14

“preventing needless destruction of private prop-

erty”) (emphasis added); Buckley v. Beaulieu, 104 Me.

56, 61 (1908) (where officers unnecessarily destroyed

walls of suspect’s home, “the manner and extent of

the search in this case were unreasonable and in

excess of the officers’ authority”); ef. Maryland v.

Garrison, 480 U.S. 79, 84 (1987) (examining “rea-

sonableness of the manner in which [a search war-

rant] was executed”). Thus, even when an unan-

nounced entry is justified to protect the officers’

safety or to foil an escape, the no-knock entry must

still be carried out in a reasonable manner, involving

a proportionate amount of force. Just as officers may

not use excessive force in making an otherwise valid

probable-cause arrest, see Graham v. Connor, 490

U.S. 386, 396-397 (1989), they may not destroy prop-

erty unnecessarily in making an otherwise-valid un-

announced entry.

In contrast to that approach, the test employed by

the court of appeals makes property damage relevant

to whether an unannounced entry is justified at all.

Under the Ninth Circuit’s two-tiered inquiry, the

breaking of any property automatically increases the

burden on the officers to possess “more specific infer-

ences” of danger or other harms that warrant an un-

announced entry. The court of appeals has suggested

that such inferences would include proof that “evi-

dence was being destroyed,” United States v. Whit-

ney, 633 F.2d 902, 910 (1980), cert. denied, 450 U.S.

1004 (1981), or “specific information that [a dwelling’s

resident] was armed or dangerous,” Becker, 23 F.3d at

1541. Because such specific inferences are ordinarily

unavailable to officers, the court of appeals’ rule

would require officers to forgo unannounced entries

to execute search warrants, even where the available

15

facts strongly support the use of surprise to reduce

risks to officers or secure the objects of the search.“

The degree of certainty expected by the court of

appeals not only is unrealistic, but is inconsistent

with the degree of deference that this Court affords

police officers’ contemporaneous assessment of the

risk of violence they face. The Court has frequently

noted the “weighty interest in officer safety,” Mary-

land v. Wilson, No. 95-1268 (Feb. 19, 1997), slip op. 4,

and, in recognition of that interest, has never re-

quired absolute assurance that a particular situation

would threaten officers’ safety in order to justify a

measured intrusion on Fourth Amendment interests.

See, e.g., Maryland v. Buie, 494 U.S. 325, 336 (1990)

(“protective sweep” of house justifiable based on “rea-

sonable suspicion of danger”); Michigan v. Long, 463

U.S. 1032, 1049 (1983) (“protection of police and others

can justify protective searches when police have a

reasonable belief that the suspect poses a danger”);

Michigan v. Summers, 452 U.S. at 702-703 (“interest

in minimizing the risk of harm to the officers”

justifies detaining occupant of premises while search

is conducted); Pennsylvania v. Mimms, 434 U.S. 106,

110 (1977) (per curiam) (relying on “inordinate risk

confronting an officer” to justify requirement that

The burdens placed on law enforcement officers by the

“specific inferences” test are well demonstrated by this case.

Here, although the escaped-fugitive Shelby had previously

struck a corrections officer in the face to effect an escape, had

stolen a car and rammed it into a law enforcement vehicle, had

threatened to kill witnesses, had tortured another person with

a hammer, had vowed not to serve federal time, and had access

to weapons, the court of appeals surmised that Iplerhaps“

Shelby’s “degree of dangerousness bespoke a mild exigency.

Certainly it did not bespeak more.” App., infra, 9a.

16

driver exit car in a traffic stop); Chimel v. Cali-

fornia, 395 U.S. 752, 763 (1969) (search incident to

arrest justified on ground that, without search,

“officer’s safety might well be endangered”). The

“specific inferences” required by the court of appeais

would expose officers to heightened risks in the

particularly dangerous setting of warrant execution,

contrary to the consistent view of this Court that

“{cjertainly it would be unreasonable to require that

police officers take unnecessary risks in the per-

formance of their duties.” Terry v. Ohio, 392 U.S. 1,

23 (1968).

c. Under a proper analysis, the entry in this case

complied with the Fourth Amendment and Section

3109. The warrant to search respondent’s property

was based on probable cause to believe that Shelby

was hiding there. App., infra, 30a-31a.° In addition,

the officers executing the warrant had reliable infor-

mation that (1) Shelby had been convicted of a number

of felonies, including using or carrying a firearm

during and in relation to a drug trafficking offense;

(2) Shelby “had a history of violent escapes,” and had

stated that he would not “do federal time”; (3) Shelby

had attacked officers and innocent bystanders in past

escape attempts; (4) Shelby hald] made threats to kill

witnesses and police officers associated with his

incarceration”; (5) Shelby “has had access to large

caches of weapons”; (6) respondent Ramirez “was

possibly involved in drugs, which he kept in the

garage”; and (7) “there were supposed to be several

guns in [respondent’s] garage.” Id. at 32a-33a, 38a-

5 The court of appeals expressed some doubt about that

proposition, but it decided this case on the assumption that

probable cause was established. App., infra, 12a n.1.

17

39a, 43a-44a. Based on that knowledge, the officers

had ample reason to conclude that a risk of violence

would arise if they announced their presence be-

fore entry, and that making an unannounced entry

would significantly reduce that risk. The officers

were therefore justified in making a no-knock entry,

whether or not the manner of entry required some

damage to property.“

Not only was the unannounced entry justified, but

the damage to respondent’s property was neither

gratuitous nor excessive. Rather, the minimal step of

breaking the window to respondent’s garage simul-

taneously with announcement and entry was a rea-

sonable way both to obtain entry and to draw the

occupants to a position away from the doors, and

thereby facilitate the officers’ ability to control the

search scene. Accordingly, the manner of entry in

this case was lawful.’

The fact that the officers did not find Shelby does not

undercut the reasonableness of their actions at the time. “It

goes without saying that in determining the lawfulness of entry

* * * we may concern ourselves only with what the officers

had reason to believe at the time of their entry.” Ker v.

California, 374 U.S. 23, 40 n.12 (1963) (plurality opinion); ef.

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

Even if the Court were to disagree with the above analy-

sis, which considers, first, whether law enforcement interests

justified dispensing with an announcement before entry and,

second, whether any breakage of property during the entry

was excessive under the circumstances, the Court should still

reject the Ninth Circuit’s two-tiered approach. At most, prop-

erty damage should be one factor in considering the overall

reasonableness of an unannounced entry. It should not func-

tion as a switch that greatly elevates the justifications needed

to dispense with a prior announcement. Cf. Illinois v. Gates,

462 U.S. 213, 238 (1983). Under such an analysis, the minor

18

2. No other court of appeals employs the Ninth

Circuit’s two-tiered approach or requires a height-

ened showing of justification for unannounced

searches that involve damage to property. Rather,

other courts of appeals have inquired whether an

immediate entry was justified by the circumstances,

without adverting to officers’ need to cause property

damage. In applying that analysis, other courts

of appeals have upheld forcible, unannounced entries

based on equal or lesser showings of justification

than existed here.“

amount of property damage in this case would not be a basis for

finding the unannounced entry to be unlawful.

Most federal courts of appeals have stated that “exigent

circumstances” may justify dispensing with a prior announce-

ment under either the Fourth Amendment or Section 3109.

The reference to “exigent circumstances,” however, can cause

confusion. Exigent circumstances” is the phrase used to de-

scribe the justification needed to dispense with a warrant alto-

gether before entering a dwelling. See Payton v. New York,

445 U.S. 573, 585-586 (1980); Vale v. Louisiana, 399 U.S. 30, 34-

35 (1970). In the context of an unannounced entry, by contrast,

the officers have ordinarily obtained a warrant. Thus, a magis-

trate has already authorized the intrusion into the residence,

and, as Wilson makes clear, the question is only whether it

would be “reasonable” within the meaning of the Fourth

Amendment to enter without a knock and prior announcement.

See Ybarra v. Illinois, 444 U.S. 85, 104 (1979) (Rehnquist, J.,

dissenting) (AIIln judging the reasonableness of la] search pur-

suant to [a] warrant, we need not measure it against jealously

drawn exceptions to that requirement.”). It stands to reason

that an unannounced entry pursuant to a warrant may be

“reasonable” under circumstances that would not justify a

wholly warrantless entry into a dwelling. Indeed, in Wilson,

this Court did not use the term “exigent circumstances” and

stressed instead that an unannounced entry need only meet

a “flexible” reasonableness standard that weighs the relevant

19

In United States v. Lalor, 996 F.2d 1578 (4th Cir.),

cert. denied, 510 U.S. 983 (1993), for example, officers

broke down the defendant’s door with a battering ram

while announcing their presence. Id. at 1580. The

court upheld the search, despite its conclusion that

“the evidence of the safety risk to the officers is not

compelling.” Jd. at 1584. The particular evidence sup-

porting that risk was that a weapon had been found on

the defendant during an earlier arrest; that the defen-

dant had earlier “[been] belligerent and made deroga-

tory remarks about the police”; and “the general

proposition that drugs and guns go together.” Jbid.

The court nowhere suggested that the damage to the

defendant’s property warranted “[mlJore specific infer-

ences of exigency.” App., infra, 8a (quoting Becker,

23 F.3d at 1541).

In United States v. Kennedy, 32 F.3d 876 (4th Cir.

1994), cert. denied, 115 S. Ct. 939 (1995), the court held

that information available to officers executing a war-

rant—i.e., that the defendant had a criminal record,

was participating in a drug conspiracy, and probably

had guns in his home, id. at 882-883—“amply justi-

fied” their failure to await a response before breaking

down the defendant’s door. Id. at 883. Again, there

was no indication that damage to the defendant’s prop-

erty triggered a more stringent requirement of jus-

tification. Other cases are to the same effect. See

United States v. Dahlman, 13 F.3d 1391, 1394 n.3, 1398

(10th Cir. 1993) (upholding no-knock search in which

officers broke the window of a cabin and detonated an

“law enforcement interests.” 115 S. Ct. at 1918. See Bodine v.

Warwick, 72 F.3d 393, 398 (3d Cir. 1995) (Wilson adopts an

overall standard of reasonableness that considers exigency as a

single factor).

20

explosive device to distract its inhabitants; failure to

announce justified by defendant’s statement that he

intended to “shoot it out” with police rather than be

arrested, defendant’s attempt to disarm an officer dur-

ing a prior arrest, officers’ high-visibility approach,

and barking guard dog), cert. denied, 511 U.S. 1045

(1994); United States v. Stowe, 100 F.3d 494, 499 (7th

Cir. 1996) (upholding no-knock search in which of-

ficers broke down defendant’s door with steel batter-

ing ram, where police had knowledge that informant

had seen defendant in house the night before with

drugs and two loaded handguns, defendant had crimi-

nal record and alias, and residence had steel doors),

petition for cert. pending, No. 96-7439 (filed Jan. 14,

1997); see also United States v. Spinelli, 848 F.2d 26,

29-30 (2d Cir. 1988).

In United States v. Stewart, 867 F.2d 581 (10th Cir. 1989),

the court of appeals stated that an “especially clear” showing

was necessary to uphold an unannounced entry, in light of sev-

eral factors, including the fact that “destruction of physi-

cal property took place.” Id. at 584. More recently, however,

the Tenth Circuit rejected the contention that its decision in

Stewart requires a “specific showing” that “the defendant

presents a danger to law enforcement officers in the context

of resisting arrest with violence.” United States v. Maden, 64

F.3d 1505, 1509 n.2 (1995).

In determining whether exigent circumstances justify

dispensing with a warrant altogether, the Second Circuit uses a

multi-factor test that includes as one factor “the peaceful cir-

cumstances of the entry.” See, e.g., United States v. Gordils,

982 F.2d 64, 69 (1992), cert. denied, 507 U.S. 1054 (1993).

Recently, the Second Circuit applied that test in determining

whether officers had adequate grounds for making an unan-

nounced entry pursuant to a warrant. See United States v.

Brown, 52 F.3d 415, 421 (1995), cert. denied, 116 S. Ct. 754

(1996). In upholding the entry in that case, however, the court

did not discuss the means of making the entry.

21

Thus, no other court of appeals focuses on property

damage as the pivotal factor that elevates the specific-

ity of proof required to justify an unannounced entry.

And under the general approach employed in other

circuits, the degree of danger that the officers

reasonably believed that they faced in this case would

have justified their decision to execute the search

warrant for the escaped fugitive without giving prior

notice to the occupants of respondent’s house.

3. The court of appeals’ approach is disruptive to

law enforcement in the Ninth Circuit and increases

the risk of harm faced by officers executing warrants.

Executing search warrants is often highly danger-

ous. To minimize those dangers, officers sometimes

break a window to distract the occupants’ attention

and draw them to a visible position. In other cases,

officers employ force to open a door quickly in order

to prevent the occupants from retrieving weapons. If

officers must show a near certainty of physical vio-

lence in order to justify that type of damage to a door

or window upon entry, they will often be forced to

forgo minimally intrusive tactics where those tactics

would be effective in avoiding violent confrontation.

Because the Ninth Circuit’s incorrect focus on prop-

erty damage in evaluating no-knock entries conflicts

with the approach employed by other circuits and has

dangerous consequences for law enforcement, this

Court’s review is warranted.”

u This Court has granted certiorari in Richards v. Wis-

consin, No. 96-5955 (to be argued Mar. 24, 1997), which pre-

sents the question whether it is always reasonable for officers

executing a narcotics-trafficking search warrant to make an

immediate, no-knock entry. This case presents a distinct

knock-and-announce issue, as the warrant in this case was to

search for a fugitive (rather than drugs) and the Ninth

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

ALAN JENKINS

Assistant to the Solicitor

General

J. DOUGLAS WILSON

Attorney

MARCH 1997

Circuit’s rule turns on a consideration—damage to property—

that is not at issue in Richards.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-30158

D.C. No. CR-94-00379-1-ALH

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

HERNAN RAMIREZ, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

[Filed: Aug. 2, 1996]

OPINION

Before: STEPHEN REINHARDT, ALEX KOZINSKI, and

FERDINAND F. FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Dissent by Judge

KOZINSKI

FERNANDEZ, Circuit Judge:

Hernan Ramirez was indicted for being a felon in

possession of firearms. 18 U.S.C. § 922(g)(1). The

district court determined that the firearms had been

discovered in connection with a violation of Ramirez’s

(la)

2a

rights under the knock-and-announce law. 18 U.S.C.

§ 3109. It, therefore, suppressed the evidence of the

weapons, and the United States appealed. We affirm.

BACKGROUND

On November 5, 1994, Ramirez and his wife awoke

out of their peaceful slumbers to a series of unusual

sounds, including the breaking of a window. Their

child, too, awoke and started crying. They feared that

they were being attacked by burglars. They were not,

but by the end of the day Ramirez found himself in the

custody of federal agents and charged with a crime—

felon in possession of a firearm—which could lead to

a lengthy period of incarceration. How he found him-

self in that predicament takes some telling.

Just three days before, Alan Laurence Shelby had

knocked a deputy sheriff down and escaped from

custody. He was then facing a term of federal im-

prisonment of 248 months and had declared that he

would not do federal time. He had tried to escape

before. One time he had struck an officer, kicked out

a jail door, stolen an automobile, and rammed a police

vehicle as he attempted to get away. Another time he

had attempted to escape by using a rope made from

torn bedsheets. At some time in the past he had also

threatened to kill witnesses, and, it was said, he had

tortured someone with a hammer.

The authorities were understandably anxious to

get Shelby back, so they sent out a press release. Al-

most immediately, on November 3, 1994, a reliable

confidential informant contacted Bureau of Alcohol,

Tobacco and Firearms Special Agent George H. Kim

and told him that he had seen a person he believed to

be Shelby at Ramirez’s home the day before. Agent

3a

Kim and the informant then drove out to the area, and

from some distance away they saw a person who was

“very similar to” a photo of Shelby and noted that the

man was wearing a blue jumpsuit and was clean-cut.

That was the person the confidential informant had

seen there the day before. Thereupon, a deputy mar-

shal also went out, and from 1,000 yards away he saw a

clean-cut man wearing blue sweats come out of the

house. The marshal decided that the man was the

person whom Agent Kim had seen.

In the afternoon of the next day, a warrant to arrest

Shelby at Ramirez’s home was obtained, and that led

to the early morning raid on November 5, which

brought Ramirez, but not Shelby, into the clutches of

the law.

Ramirez’s fateful day unfolded in this way. In the

predawn hours of November 5, Ramirez, his wife, and

their three-year-old child were asleep in their abode.

The main house had three bedrooms, a livingroom, an

activity room, and a kitchen which led into a small

utility room, which, in turn, led into an attached gar-

age. The informant, who said that Shelby was at

the house, also “indicated there were supposed to be

several guns in the garage.” Apparently there were

not, and apparently the informant had never seen

them there. Nevertheless, that is what he had said.

At 6:15 a.m., 45 armed officers converged on the pro-

perty. The group included S.W.A.T. teams of state,

county, and city officers. The officers set up a port-

able loud speaker system and began announcing that

they had a search warrant, but without waiting for a

response they broke the window of the garage and

began waving a gun through that window, a maneuver

4a

that was not too efficacious because a curtain got in

the way.

The Ramirezes had no idea that police were outside

their home, but they did hear the disturbance, did

hear the breaking of glass, and thought that they

were being burglarized. They feared for their safety

and for the safety of their three-year-old child. Thus,

in order to frighten the intruder off, Mr. Ramirez

obtained a pistol from a utility closet and fired it to-

ward the ceiling of the garage. The officers fired back

and shouted “Police.” At that point, and only at that

point, the occupants of the house realized that it was

law enforcement officers who had broken into the

home. Ramirez “ran to the livingroom, threw away

the firearm across the floor, and threw himself on the

floor in a prone position, shaking from fright.” By

6:35 a.m., he and his wife, with their child in her arms,

had walked out of the house and into police custody.

These householders were the only persons captured

in the raid. Shelby was nowhere to be found, although

Ramirez acknowledged that a photo of Shelby looked

like a person who might have been there on November

3.

Based on what occurred at the house that morning,

a second warrant was obtained, the gun which

Ramirez had fired and another one were seized, and

Ramirez found himself in the toils of the law.

JURISDICTION AND STANDARD OF REVIEW

The trial court had jurisdiction over this matter

pursuant to 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731.

5a

In general, we review determinations of motions to

suppress de novo. United States v. Khan, 993 F. 2d

1368, 1375 (9th Cir. 1993). The trial court’s factual

findings are reviewed for clear error. United

States v. Negrete-Gonzales, 966 F.2d 1277, 1282

(9th Cir. 1992). Where no findings of fact were

made or requested, this court will uphold a trial

court’s denial of a motion to suppress if there was

a reasonable view to support it. United States v.

Rabe, 848 F.2d 994, 997 (9th Cir. 1988). The mixed

fact and law question of exigent circumstances

justifying a failure to comply with the statutory

knock and announce provisions of 18 U.S.C. § 3109

is reviewed de novo. United States v. McConney,

728 F.2d 1195, 1205 (9th Cir.) (en bane), cert.

denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46

(1984).

United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.

1994).

DISCUSSION

A. Knock and Announce. We have previously had

occasion to expatiate on the important role that the

Fourth Amendment plays in the protection of our

homes—the centers of our family life and our refuge

from the rude world. We must now cover that ground

again.

As we said in Los Angeles Police Protective League

v. Gates, 907 F.2d 879, 884 (9th Cir. 1990):

Nowhere is the protective force of the fourth

amendment more powerful than it is when the

sanctity of the home is involved. Boyd v. United

States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed.

6a

746 (1886); United States v. Shaibu, 895 F.2d 1291,

1293 (9th Cir. 1990) [, amended and superseded

by, 920 F.2d 1423 (9th Cir. 19900 United States v.

Winsor, 846 F.2d 1569, 1574 (9th Cir. 1988) (en

banc). 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. Therefore, we have been adamant in

our demand that absent exigent circumstances a

warrant will be required before a person’s home is

invaded by the authorities. See Shaibu, at 1293;

United States v. George, 883 F.2d 1407, 1411 (9th

Cir. 1989).

The amendment’s force, however, extends even

beyond the obtaining of a warrant. Even if a warrant

issues, the concerns which lie at the heart of the

amendment continue to evoke our solicitude. Our

“concern for the privacy, the safety, and the property

of our citizens continues. Becker, 23 F.3d at 1540.

That concern is reflected in knock-and-announce re-

quirements. As the Supreme Court recently said,

Aim evaluating the scope of [our Fourth Amendment]

right, we have looked to the traditional protections

against unreasonable searches and seizures afforded

by the common law at the time of the framing.”

Wilson v. Arkansas, — US. , , 115 S. Ct.

1914, 1916, 131 L. Ed. 2d 976 (1995). Among those

traditions was “(t]he common law knock-and-

announce principle [which] was woven quickly into

the fabric of early American law.” Id. at —, 115 8.

Ct. at 1917. The Court, therefore, concluded that as a

matter of constitutional law “the method of an

officer’s entry into a dwelling was among the factors

to be considered in assessing the reasonableness of a

7a

search or seizure.” Id. at —, 115 S. Ct. at 1918. For

our purposes, the tradition finds an even more direct

expression of societal concern. “It finds expression

in the knock and announce statute which allows an

officer to ‘break open any outer or inner door of a

house .. to execute a search warrant if, after notice

of his authority and purpose,’ he is refused admit-

tance. 18 U.S.C. § 3109.” Becker, 23 F.3d at 1540. We

insist upon this notice because, as individuals, we fear

for our privacy in the face of government might, and

we fear for our property and our safety as well.

“The fear of a smashing in of doors by government

agents 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. Indeed, the minions of dictators do not

kick in doors for the mere purpose of satisfying

some voyeuristic desire to peer around and then go

about their business. Something much more

malevolent and dangerous is afoot when they take

those actions. It is that which strikes terror into

the hearts of their victims. The fourth amendment

protects us from that fear as much as it protects

our privacy... .”

Id. at 1540 (citation omitted). See also Soldal v. Cook

County, 506 U.S. 56, 62-63, 113 S. Ct. 538, 544, 121 L.

Ed. 2d 450 (1992). As concerned citizens we also fear

the needless injuries that might be inflicted upon

police officers, or upon a homeowner, as a result of

the homeowner’s mistaken belief that miscreants are

invading his little castle. See Sabbath v. United

States, 391 U.S. 585, 589, 88 S. Ct. 1755, 1758, 20 L. Ed.

2d 828 (1968) (one facet of rule is to safeguard officers

8a

from injuries inflicted by mistaken homeowners). So

it was here. Had Ramirez been less reasonable, the

officer at the window might have been killed; had

Ramirez been less wise, he or his family might have

been killed. As it was, his property was needlessly

damaged when his home was broken into.

When the officers executed the warrant they brush-

ed aside the wisdom of history and elicited a response

which, if not strictly intended, should have been

reasonably foreseen. They seek to excuse their

conduct on the grounds that the dangerousness of

Shelby resulted in an exigency which permitted them

to break into the home of Ramirez without following

knock-and-announce requirements.

No doubt exigent circumstances can justify

breaking into a house without notice, but “incantation

of that phrase does not dissolve the shield that our

law provides.” Becker, 23 F.3d at 1540. When

exigency is claimed, we must determine what kind of

exigency it was. “We have held that even a mild

exigency, like knowledge that a person is dangerous,

can justify immediate entry where that can be done

without any physical disruption of property. That, of

course, is not this case.” Id. (citations omitted).

Here, an officer broke into the home through a

window, poked a gun through the window, and was

ready to fire the weapon if he deemed it necessary to

do so. It takes more than a mild exigency to justify

that. “To justify physical destruction of property

Imjore specific inferences of exigency are neces-

sary.’” Id. at 1541 (citation omitted). Was there

more? We think not.

9a

Consider. The 45 officers did not fear any of the

actual residents of the house and were not attacking a

gang or cult hangout where they might be met by a

fusillade of gunfire. They were concerned about one

person, Shelby, who might be on the premises. But

Shelby was not known to have ever shot or shot at

anyone. He was an escape artist, who said he would

not go to federal prison. He had knocked people down

in his escape attempts, and he had stolen a car and run

into a police vehicle. His violence towards law en-

forcement had not extended beyond that, even though

he had obviously been arrested on some occasions.

Perhaps his degree of dangerousness bespoke a mild

exigency. Certainly it did not bespeak more. In

United States v. McConney, 728 F.2d 1195 (9th Cir.)

(en banc) cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83

L. Ed. 2d 46 (1984), for example, we found a mild exi-

gency when an officer knew that McConney was a

member of Hell’s Angels, had a conviction for a vio-

lent crime, was a drug dealer, and had spoken of pro-

tecting club members. /d. at 1206. That justified an

announcement and a simultaneous entry through an

unlocked screen door. /d.

On the other hand, in a case where a person in a

drug dealer’s apartment was known to own a gun, but

there was no indication that he had the gun with him,

we found no exigent circumstances at all. See United

States v. Fluker, 543 F.2d 709, 717 (9th Cir. 1976). And

in United States v. Mendonsa, 989 F.2d 366, 370-71

(9th Cir. 1993), we found the circumstances insuffi-

cient to justify breaking into a house after the police

heard a little noise, even though an occupant was a

drug dealer who had a prior felony conviction for

armed robbery. We also found no exigency where all

10a

the police had was a generalized concern about drug

dealers. See United States v. Moreno, 701 F.2d 815,

817-18 (9th Cir. 1983), vacated on other grounds, 469

U.S. 913, 105 S. Ct. 286, 83 L. Ed. 2d 223 (1984). The

same sort of generalized unspecific concerns proved

insufficient in Becker, 23 F.3d at 1541.

We did find a mild exigency in United States v. Von

Willie, 59 F.3d 922 (9th Cir. 1995), where the police

sought to execute a search warrant at the home of an

armed warlord for a motorcycle gang. Id. at 924. In

that case, the police did attempt to comply with § 3109

at one door, did comply with it at another door, but

seized Von Willie at still a third door without com-

pliance after he had seen them and was trying to shut

them out. Under the combination of what was known

before plus what happened on the scene, we validated

an entry which took place with no destruction of

property. Id. at 925-26. Similarly, in United States v.

Scott, 74 F.3d 175 (9th Cir. 1996), petition for cert.

filed, (June 6, 1996) (No. 95-9248), we found a mild

exigency. The police arrived on the scene to execute

a warrant. Scott opened the blinds and saw them; he

had a weapon in his hand. Id. at 176. He then

attempted to close an open door, as the police an-

nounced their presence and that they had a warrant.

They then forced their way into the room. Id. at 177.

We were satisfied that there was a mild exigency, and

we excused any failure to comply with the knock-and-

announce rule. See also United States v. Reed, 15

F.3d 928, 934 (9th Cir. 1994) (likely armed suspect saw

the police and closed the door). None of those circum-

stances inform the case at hand. There is no sugges-

tion that the police presence was known, no confirma-

tion that Shelby was on the premises, and, more

lla

importantly, no indication that Shelby was armed and

would resist with deadly force.

We were considerably more impressed when the

police knew that the person they were after had a gun

and had heard him say that he kept the gun to use

against the police themselves. United States v.

Turner, 926 F.2d 883, 885 (9th Cir.), cert. denied, 502

U.S. 830, 112 S. Ct. 103, 116 L. Ed. 2d 73 (1991). We

were equally impressed in United States v. Perez, 67

F.3d 1371, 1384 (9th Cir. 1995), reh’g en banc granted,

77 F.3d 1210 (9th Cir. 1996), and for much the same

reasons. There the police on the scene realized that

Perez probably knew they were present. Moreover,

he was probably armed, had killed before, and had said

that if arrested “he intended to ‘go down shooting.’”

Id. In both cases we did find more than a mild exi-

gency. Of course, the police had no such information

about Shelby. They neither knew that he had a gun,

nor that he had access to one, nor that he would

consider using one against them.

We have touched upon all of these cases because our

review is necessarily fact-bound. Our cases do not

describe a simple straight line, rather they graph a

much more complex curve. Police must have some

leeway in balancing the demands of the knock-and-

announce requirement against other safety con-

siderations. Nevertheless, the courts must ulti-

mately determine whether the police struck that bal-

ance properly. We think it clear that the police did

not do so in this case.

Again, the householders themselves presented no

known danger. If he was there, Shelby might wish to

escape, but the phalanx of already positioned officers

on hand made escape unlikely. Moreover, there was

12a

no specific evidence that Shelby was armed, that he

would use firearms against the officers, or that when

he was faced with that show of force he would do

anything violent at all. Also, before the break-in

nothing developed on the scene which would have

added to the circumstances already known and, thus,

raise them to a higher degree of exigency. In short,

we agree with the district court that the knock-and-

announce rules were violated in this case.

B. Causation. When Ramirez walked out of his

house and into the arms of the waiting police, he was

seized. He then admitted that he had fired the gun,

that another gun was on the premises, and that he had

previously committed felonies in California. Those

admissions and the fact that an officer had seen the

discarded pistol in the livingroom led to a second

warrant and a seizure of the weapons. It is the use of

those weapons in evidence which Ramirez seeks to

suppress.”

The cereful reader will note that we have assumed that

there was probable cause for the issuance of the warrant in the

first place. There may well be some doubt about that, when the

most that was known was that Shelby had been at Ramirez's

house on two occasions two or three days earlier. Nevertheless,

we give considerable deference to the issuing magistrate. See

Perez, 67 F.3d at 1382. Because of that deference and because

it is unnecessary to our resolution of this case, we have assumed

rather than decided that there was probable cause.

We do not consider the statements themselves, which

clearly were not severable from the arrest of Ramirez, because

no issue regarding them is before us. But see United States v.

Ricardo a D., 912 F.2d 337, 342 (9th Cir. 1990) (confession follow-

ing illegal arrest suppressed).

13a

Because the initial entry into Ramirez's house was

illegal, he is entitled to have the weapons suppressed

if “the police obtained the evidence by exploitation of

the illegality.’” United States v. Jones, 608 F.2d 386,

390 (9th Cir. 1979) (quoting Wong Sun v. United

States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d

441 (1963)). It is clear that a mere “but for” causal

connection will not lead to suppression. Rather, we

must conduct an inquiry by applying three tests:

First, we consider the proximity of the illegal

arrest with the seizure of the evidence. Second,

we consider whether there were independent in-

tervening events that led the police to the

evidence. Third, we consider the effect of sup-

pression on the exclusionary rule’s purpose of

deterring police misconduct. The three factors

are closely interrelated.

United States v. Shephard, 21 F.3d 933, 939 (9th Cir.

1994) (citation omitted); see also Jones, 608 F.2d at

391.

The first of these factors is easily met; the seizure

of the guns could hardly be more proximately linked

to the police break-in itself. They came as the most

direct, if not the only, result of the morning’s activi-

ties. Similarly, there can be little doubt that suppres-

sion would serve to dissuade the police from this kind

of unnecessary invasion of people’s homes. It would

encourage, even exhort, them to use more caution.

Only a particularly cynical view of government would

induce us to think otherwise. The third factor weighs

in favor of suppression.

l4a

That leaves the second factor—was there an inde-

pendent intervening event? We think not, but that

requires a bit more explanation. In the mine run of

cases, the determination is relatively straight-

forward. If an unlawful search follows directly on the

heels of an unlawful arrest, suppression will likely

follow. See, e.g., Shephard, 21 F.3d at 939-40; cf.

Jones, 608 F.2d at 390-91. If an unlawful search ulti-

mately leads to the seizure of tangible materials,

they, too, will be suppressed if their connection is

close enough. See Murray v. United States, 487 U.S.

533, 536-38, 108 S. Ct. 2529, 2532-33, 101 L. Ed. 2d 472

(1988); United States v. Hill, 55 F.3d 479, 481 (9th Cir.

1995); United States v. Santa Maria, 15 F.3d 879, 888

(9th Cir. 1994). If a confession is closely tied to an

illegal arrest, suppression will often follow. See

Orhorhaghe v. INS, 38 F.3d 488, 504 (9th Cir. 1994);

Ricardo D., 912 F.2d at 343. The principles which

animate these cases would seem to lead directly to a

conclusion that suppression is required in this case.

However, the government claims that there was an

intervening event which broke the causal chain. That

event was Ramirez’s firing of the pistol at the ceiling

when he thought that would help protect his family

against malevolent intruders. We disagree with the

government.

There was no gap or attenuation between the break-

in and the firing of the weapon. More than that, the

police were very lacking in perspicacity if they failed

to foresee the reaction they encountered. What could

they have expected when they broke into the home of

a sleeping family in the early hours of the morning?

If they did not intend to elicit a strong protective

reaction, they must have willfully blinded themselves

15a

to that possibility. Cf. United States v. Jewell, 532

F. 2d 697, 700-04 (9th Cir.) (en banc), cert. denied, 426

U.S. 951, 96 S. Ct. 3178, 49 L. Ed. 2d 1188 (1976);

United States v. Aguilar, 80 F.3d 329, 332-33 (9th Cir.

1996) (en banc).

The government, nevertheless, says that when a

new illegal act intervenes, the chain is broken be-

cause police illegality should not be taken to justify

citizen illegality. That general proposition is accu-

rate enough in the abstract, but the cases which

support it have no application here. No doubt a home-

owner is not justified in aiming a semiautomatic

weapon at persons he knows to be police officers, even

if they happen to have entered his home illegally. See

United States v. Waupekenay, 973 F.2d 1533, 1537-38

(10th Cir. 1992). Similarly, when an officer is engag-

ing in an illegal arrest, if the suspect engages in

illegal resistance, that new violation may well justify

a new and proper arrest. See United States v.

Dawdy, 46 F.3d 1427, 1431 (8th Cir.), cert. denied, 423

U.S. 934, 116 S. Ct. 195, 183 L. Ed. 2d 130 (1995). We

reached just that conclusion in United States v.

Garcia, 516 F.2d 318 (9th Cir.), cert. denied, 423 U.S.

934, 96 S. Ct. 290, 46 L. Ed. 2d 265 (1975). In that case

officers ordered Garcia to pull over at what we

assumed to be an illegal checkpoint. Garcia did so at

first, but then sped off and led the officers on a high-

speed chase. Id. at 319. That illegal flight and the

ensuing chase supplied the necessary intervening

activity to justify Garcia’s arrest. Id. at 320. We said

that unless the officers had acted for the very purpose

of initiating the chase activity, we would not find the

second stop to be illegal. Jd. at 319-20; cf. United

States v. Ogilvie, 527 F.2d 330, 332 (9th Cir. 1975)

16a

(explaining the limitations of Garcia); United States

v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976) (same).

In the case at hand, Ramirez did not threaten or

flee from persons whom he knew to be police officers.

Quite the contrary. He fired a gun at the ceiling of

his own home when unknown intruders were invading

it. The government does not claim that he committed

a crime when he did that, unless, of course, the crime

was the fact that he had a gun at all. But to the

extent that it was a crime for him to have a gun, that

crime did not intervene. It existed before the police

engaged in their unlawful intrusion. That crime was

brought to light by the intrusion itself. We agree

with the Eleventh Circuit’s determination that if the

act of a suspect is not a new and distinct crime, but is

simply a legal act which reveals the fact of some

crime—such as possession of an illegal substance— it

will not erase the taint. United States v. Bailey, 691

F.2d 1009, 1016-17 (11th Cir. 1982), cert. denied, 461

U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). To

paraphrase that decision: Ramirez was in possession

of the gun before the police misconduct occurred, and

his response to the misconduct only revealed this

extant crime and did not itself constitute a crime—

i.e., firing a gun at the ceiling of his own home to

scare off intruders is not a crime; possessing the

weapon is. Id. at 1017.

We, therefore, determine that there was no inter-

vening event, the second element of our analysis

favors suppression, and suppression must follow.

17a

CONCLUSION

The flame of our Fourth Amendment liberties is

bright and strong—that should come as no surprise.

It has been tended by lovers of liberty for over two

centuries. While it burns, it keeps our homes free

from unlawful intrusions by the government. Still, it

is just a flame, and it will be quickly quenched if it is

not protected. Should that occur, a tenebrific atmos-

phere would envelop our liberties and our homes.

That must not happen.

We hold that Ramirez’s statutory and Fourth

Amendment rights were violated when government

agents broke into his home in the early morning

hours without complying with the knock-and-

announce requirements. We also hold that the

district court correctly suppressed use of the seized

weapons as evidence against him.

AFFIRMED.

18a

KoziNskl, Circuit Judge, dissenting.

1. The majority opens up a square conflict with

United States v. Turner, 926 F.2d 883 (9th Cir.), cert.

denied, 502 U.S. 830, 112 S. Ct. 103, 116 L. Ed. 2d 73

(1991), a case where we upheld a no-knock entry. In

Turner, police forced open a locked apartment door

and entered the defendant’s bedroom; Turner argued

the no-knock entry was illegal because the police

couldn’t be sure he was armed, but we upheld the

search. The majority contrasts Turner with Shelby,

characterizing the former as a “considerably more

impresslive] threat, maj. op. at 9466, and the latter as

an “escape artist” whose “degree of dangerousness

bespoke a mild exigency,” if that. Id. at 9465.

The record contradicts the majority’s romantic

description of Shelby—a hardened and desperate

criminal, much more dangerous than Turner. But

words are cheap; here are facts:

Turner Shelby

Current access Highly likely Highly likely

to guns

Past access “Turner kept wea “Shelby was a

to guns pons in the apart- major Metham-

ment he used for his phetamine

drug operations.” manufacturer

and has had

access to large

caches of wea-

pons.”

19a

Threatened police Yes Yes

Threatened police No Yes

Escape attempts 0 3

Police and 0 3

civilians assaulted

People tortured 0 1

Criminal Record I conviction for Serving 20

receiving stolen years plus, on

property, 17 years state and fed-

earlier eral charges

Knew police were No Yes

looking for him

My colleagues trip lightly over the fact that Shelby

had “a history of violent escapes.” ER at 22. But,

in his dogged efforts to flee from custody, Shelby not

only struck two law enforcement officers, but “as-

saulted a woman in a parking lot and stole her ve-

hicle,” id.; he then crashed into a police car in making

his getaway. Assaulting helpless civilians and then

using a ton of mechanized steel as a battering ram

hardly comports with the majority’s characterization

of Shelby as a latter-day Harry Houdini. The ma-

20a

jority also dismisses reports of Shelby’s torture ac-

tivities with “it was said,” as if to suggest they lacked

substance. Maj. op. at 9459. But the record is positive

on this point: “Alan Shelby has brutally tortured

others in the past with a hammer.” ER at 22. The

majority’s characterization of Shelby as Aplerhaps

... mildly dangerous,” is more than mildly off the

mark.

The majority posits two main distinctions between

Shelby and Turner. First, it argues, Turner had

threatened to kill police while Shelby had not. Wrong.

Shelby had “made threats to kill witnesses and police

officers associated with his incarceration.” ER at 22.

Next, the majority says, the police here didn’t know

Shelby had access to weapons, while the police in

Turner did. Wrong again. In Turner, the police only

knew that the suspect was armed at another location.

Turner claimed the police had no way of knowing he

would carry a gun with him, but we rejected his

argument: Although “(the police] may not have had

specific information that Turner currently had

weapons, .. the facts they did have made this highly

likely.” 926 F. 2d at 887.

Here, the police had more information about the

suspect’s access to weapons than in Turner. Ac-

cording to the Confidential Reliable Informant (CRD),

Shelby was hiding in the home of another suspected

drug dealer, ER at 52; two law enforcement officers

confirmed that someone matching Shelby’s descrip-

tion was on the premises. ER at 23-24. The Infor-

mant also told police that “there were supposed to be

guns in the garage,” ER at 52, a garage attached to

the house where Shelby was thought to be hiding.

Police thus not only were informed that Shelby was

21a

at that location, but that there were guns there

something the police in Turner merely surmised.

The police in our case did have to infer that Shelby or

someone else in the house might go for the guns if

cornered but, as we said in Turner, “the facts that

[the police] did have made this highly likely.” 926

F. ad at 887.

The majority’s every effort to disparage the search

here only underscores the conflict with Turner. The

majority criticizes the police for failing to recognize

they “were not attacking a gang or cult hangout

where they might be met by a fusillade of gunfire,”

maj. op. at 1301; the same was true in Turner. The

majority complains that “(tJhere is no suggestion

that the police presence was known,” id. at 1302;

Turner complained about the exact same thing. See

926 F. 2d at 887. The majority points out that “the

phalanx of already positioned officers on hand made

escape [by Shelby] unlikely,” maj. op. at 1302; in

Turner, we held that “[t]he number of officers sur-

rounding the building and Turner’s lack of prior

charges for escape are irrelevant.” 926 F.2d at 887.

The majority carps, “Shelby was not known to have

ever shot or shot at anyone,” maj. op. at 1301; Turner

hadn’t even committed a violent crime. Every argu-

ment the majority makes here was considered and

rejected in Turner.

Any material differences between this case and Turner

cut against the majority’s conclusion. First, the intrusion in

Turner was much more serious than that here. In Turner,

police broke into the apartment and “found Turner in bed with

a woman.” 926 F.2d at 886. Here, they broke a single window

of the garage where they were told the guns were located and

poked a gun through the hole. Quite clearly, this was an effort

to keep Shelby (or whoever else was in the house) from making

22a

My colleagues try to duck Turner by claiming that

our cases “graph a... complex curve.” Id. at 9467.

But if the law is that much in turmoil, we must call

for sua sponte en banc. See Atonio v. Wards Cove

Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) (“A

panel faced with [an irreconcilable] conflict must call

for en banc review. .). In fact, there is no pre-

existing conflict because Turner is the only case on

point. The other cases the majority cites did not

involve the breaking of property: no more than a mild

exigency was thus required to uphold those entries.

These cases did not—could not—speak to whether a

more serious intrusion was warranted.

The majority’s ruling not only creates a circuit

conflict, it’s bad law on its own terms. There is much

rhetoric in the opinion about the sanctity of every

man’s “little castle,” but the principal reason we can

sleep safely at night is that the men and women of law

enforcement put their lives on the line to keep our

a run for the weapons. While the maneuver failed, it was a

rational and measured effort by the police to deal with the

dangerous situation presented to them. The search here was

also much less troublesome than in Turner because police had

obtained a no-knock warrant. In Turner, police decided to

break down the door unilaterally and on the spur of the mo-

ment. Finally, unlike in Turner, police here tried, albeit unsuc-

cessfully, to announce their presence. ER. at 53 (the police

announced their presence over a loud speaker, but Ramirez

could not determine what was going on); see United States v.

Moreno, 701 F.2d 815, 817 n.3 (9th Cir. 1983) (“An attempt to

notify by knocking and announcing complies with the statute

whether or not it is heard.”), vacated on other grounds, 469

U.S. 913 (1989).

2 F.., United States v. Von Willie, 59 F.3d 922 (9th Cir.

1995); United States v. Scott, 74 F.3d 175 (9th Cir. 1996);

United States v. Reed, 15 F.3d 928 (9th Cir. 1994).

23a

castles from being invaded by brutal criminals. When

police track down “a major Methamphetamine manu-

facturer[, who] has had access to large caches of

weapons” and a history of torture and other violent

conduct, they are entitled to take precautions. A

castle, little though it be, often looks like a fortress

from the outside; police cannot know what’s lurking

within. It’s easy enough, sitting in our well-guarded

offices, and with the benefit of hindsight, to issue

pronouncements about what the police should or could

have done, but this provides little useful guidance to

police in the field who must make difficult judgments

in unknown territory and subject to unpredictable

developments. What if the police had adopted the

majority’s rosy view of Shelby and had politely tapped

at the door and asked if he would come along, but

Shelby had seized the guns in the garage, taken the

Ramirez family hostage and precipitated a shoot-out?

No doubt, we would then have issued a similarly smug

opinion, this time lecturing the police that they were

not free to ignore the words and warnings of their

CRI, and affirming the payment of compensation to

— Ramirezes or anyone else harmed in the alterca-

ion.

My guess is that, had any of us been in charge of

this operation—had we been responsible for the lives

and safety of dozens of law enforcement officers and

the family sleeping inside—we would have done just

what the police here did. To have done less would have

been foolhardy (my colleagues’ high-fallutin’ rhetoric

notwithstanding); to have done more would have been

excessive. The police properly balanced the home-

owner's privacy and property interests against the

dictates of security. See Wilson v. Arkansas, 115 S.

24a

Ct. 1914, 1918 (1995) (“The Fourth Amendment’s

flexible requirement of reasonableness should not be

read to mandate a rigid rule of announcement that

ignores countervailing law enforcement interests.”);

United States v. Bustamante-Gamez, 488 F.2d 4, 10

(9th Cir. 1973) (It has never been suggested that

the [no-knock] requirement is an inflexible one; both

at common law and in the constitutional context

the courts have acknowledged that the interests [pro-

tected by the rule] may give way to other considera-

tions.”), cert. denied, 416 U.S. 970 (1974). They de-

serve to be congratulated, not chastened and ridi-

culed.

2. Even had the no-knock search been illegal, this

would provide no grounds for suppression of the

evidence pertaining to Ramirez. In reaching the

contrary conclusion, the majority raises conflicts

with two other of our cases, United States v. Jones,

608 F.2d 386 (Sth Cir. 1979), and United States v.

Garcia, 516 F.2d 318 (9th Cir.), cert. denied sub nom.

Martinez- Lopez v. United States, 423 U.S. 934

(1975). In Jones, the police arrested the defendant on

suspicion of a Los Angeles area burglary and found a

motel room key on him; they then searched the room

and discovered evidence of an unrelated burglary at

San Francisco’s Presidio. Although the initial arrest

was illegal, evidence obtained from the motel room

was not excluded because exclusion could have had no

deterrent value. We held it “crucial” that the police

were not investigating the Presidio burglary when

they illegally found the evidence, because “[d]eter-

rence can have its effect only when it can be said that

an object of the illegal conduct was the securing of

the evidence sought to be suppressed.” Id. at 391

25a

(quoting Allen v. Cupp, 426 F.2d 756, 759 (9th Cir.

1970)). Here, the police weren’t out to catch a felon in

possession; they didn’t even know Ramirez owned the

house, much less that he was a felon.“ The object of

the supposedly illegal search was the arrest of Alan

Shelby for escape; police couldn’t possibly be deterred

by the threat of exclusion of evidence relating to a

completely different person and crime. Cf. Allen, 426

F. 2d at 759 (exclusion when illegal police conduct in-

advertently reveals evidence would merely “make

tasting the fruit more difficult, but would not dimin-

ish its temptation”).

The majority leaps over the deterrence question

with a single bound: “{TJhere can be little doubt that

suppression would serve to dissuade the police from

this kind of unnecessary invasion of people’s homes.”

Maj. op. at 9469. This is contrary to Jones and other

cases where we have held that suppression can

provide no deterrence when police officers, through

* Ramirez apparently was fond of pseudonyms. Utility re-

cords indicated a “Hernan Rios” lived at 23170 S.E. Bohna

Park Rd. ER. at 24. The CRI, however, said the owner went

by “Angel” or “Havannah.” Jd. DMV records showed an

“Angel Rios” had a driver’s license in the name “Angel

Estrada.” Jd. Even after the raid, the police weren’t sure

who Ramirez was. The affidavit for the second warrant seeks

to search “the premises occupied by Herman Ramirez aka

Hernan Ramirez, Angel Estrada.” Id. at 44.

Ramirez’s criminal record was also unknown to the police

before the search. After the search, Ramirez told police that

his birthday was May 8, 1957, and he had been convicted of

burglary in 1981. Jd. at 45. Only then did a check of police

records reveal a Hernan or Herman Ramirez who was born on

May 8, 1955 and was convicted of rape in 1978 and burglary

with a firearm in 1982. Id. at 46.

26a

“investigatory serendipity,” stumble across evidence

of a crime of which they we.e previously unaware.

See United States v. Bacall, 443 F.2d 1050, 1056 (9th

Cir.) (it’s “erucial to a determination of taint” that

police didn’t suspect the defendant of the crime for

which their illegal activity produced evidence), cert.

denied, 404 U.S. 1004 (1971); Durham v. United

States, 403 F.2d 190, 196 (9th Cir. 1968) (“The price is

too high and the advantage too uncertain to make it

reasonable to suppose that law enforcement officers

will be encouraged to indulge in unlawful searches,

knowing that what they find will be suppressed, in the

hope of obtaining admissible evidence as remote and

fortuitously acquired as this.”).

The majority creates yet a third conflict, this time

with United States v. Garcia. Garcia was stopped at

an illegal checkpoint but then sped off and was

captured; police searched the car and found marijuana.

We declined to suppress. The suspect’s intervening

act, we held, gave police new grounds for probable

cause that were untainted because police didn’t intend

to provoke the response. Garcia, 516 F.2d at 320 (“By

ordering [the defendant] to stop, the officer could

hardly have intended him to flee.”). Here, police de-

veloped new grounds for searching Ramirez’s house

when he fired his gun. Following Garcia’s rationale,

Ramirez’s use of the gun was evidence untainted

by the (supposed) earlier illegality, unless police

intended to provoke the response. It’s ludicrous to

suppose the police broke the garage window hoping to

provoke those inside to shoot at them. The majority

claims, inexplicably borrowing a deliberate ignorance

instruction from substantive criminal law, that the

police “willfully blinded themselves to [the] possi-

27a

bility” of Ramirez’s response, maj. op. at 9470 (citing

United States v. Jewell, 532 F.2d 697, 700-04 (9th

Cir.), cert. denied, 426 U.S. 951 (1976)). But, accord-

ing to Garcia, the test isn’t willful blindness, it is

intent. Far from intending that the occupants of the

house shoot at them, the police here tried to prevent a

shoot-out by covering the area where they thought

the guns were stored. Because Ramirez’s interven-

ing act was not “the intended result of illegal police

conduct,” Garcia, 516 F.2d at 319 (emphasis added), it

attenuates the alleged taint from the no-knock entry.

«E „ „ „ *

Opinions like this lend support to the notion that

the Ninth Circuit is not a single court but a series of

disaggregated panels whose judges are guided by

their predilections rather than precedent. Because I

cannot join in this wholesale flouting of circuit

authority. I dissent.

28a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

U.

HERNAN RAMIREZ, DEFENDANT

[Filed: May 4, 1995]

OPINION

HAGGERTY, Judge:

Defendant was indicted for being an ex-felon in

possession of firearms. Defendant moves to suppress

evidence regarding his possession of the weapons at

issue because such evidence was obtained as a direct

result of the execution of a warrant that (1) lacked

sufficient probable cause, and (2) was unreasonably

executed. A hearing was conducted on 24 April 1995,

at which oral argument was presented regarding the

motion. This court denies the motion to suppress as

to the issue of insufficient probable cause, but grants

the motion as it pertains to the execution of the war-

rant.

BACKGROUND

Counsel have stipulated to most facts surrounding

the issuance of the two warrants involved in this case,

and the subsequent arrest and charging of defendant.

In the early morning of 5 November 1994, several

dozen law enforcement officers encircled defendant’s

home in Boring, Oregon, to execute a federal search

warrant seeking fugitive Alan Lawrence Shelby.

Shelby had escaped custody while enroute to testify

in a matter in Tillamook County. The United States

Marshal obtained a warrant for Shelby’s arrest, and

conducted a manhunt that led to defendant’s home.

On 5 November 1994, law enforcement officers sur-

rounded defendant’s residence, identified themselves

over bullhorns, and ordered the residence’s occupants

to come outside. At the same time, officers outside

the home’s garage shouted “Sheriff - search war-

rant,” and broke a garage window. Defendant fired a

gun from inside his home, prompting a hail of return

fire from the officers. Defendant was forced from his

residence and, after advice and waiver of rights,

acknowledged that he was a convicted felon, and that

he owned the gun he had fired as well as another

weapon. This information, coupled with an officer’s

observation of a weapon inside defendant’s home, was

used to obtain a second search warrant permitting

officers to re-enter defendant’s home later that day to

retrieve the weapons. Fugitive Shelby was not found

at the residence during either search. Defendant,

however, was arrested and charged with being a

convicted felon in possession of weapons in violation

of 18 U.S.C. § 922(g¢)(1).

ARGUMENTS

Defendant challenges the validity and execution of

the first warrant regarding the search for Shelby.

That warrant’s execution provided the grounds for

the second warrant pertaining to defendant’s wea-

pons, and led directly to the seizure of those weapons.

Defendant contends that the seizure of the weapons

must be suppressed because the first warrant seeking

Shelby lacked sufficient probable cause and was im-

properly executed.

1. Probable Cause

Defendant first contends that the affidavit sub-

mitted in support of the warrant for Shelby was

insufficient to justify a conclusion that Shelby was

probably on defendant’s premises at the time it was to

be searched. A magistrate’s role is to determine

whether, given all the circumstances set forth in the

supporting affidavit, there is a fair probability that

what is being sought will be found in a particular

place. Illinois v. Gates, 462 U.S. 213, 238 (1983). The

magistrate determines this by considering the total-

ity of the circumstances, and a court reviewing this

decision must ask whether the magistrate had a sub-

stantial basis for concluding that sufficient probable

cause existed to issue a warrant. Id.

This court is satisfied that the magistrate had

a substantial basis for finding probable cause to

believe that the fugitive being sought would be found

at defendant’s residence. The affiant stated that a

confidential, reliable informant reported that he had

seen a man named “Alan” at the residence, and that

“Alan” had uttered words to the effect that “I had

31a

to knock out a guard.“ During his escape, Shelby

had slipped from his handcuffs and had assaulted an

officer.

The informant had provided correct information

previously, leading to the arrest of another fugitive,

and, when driven to defendant’s residence by an offi-

cer, the informant identified a man who was washing a

car in the driveway as “Alan.” The officer with the

informant found the man to be similar in appearance

to a photograph of Shelby.

The affiant also stated that he had made a second

reconnaissance of defendant’s residence, and that a

man resembling Shelby had emerged from the home

during his surveillance. Because of distance, how-

ever, a positive identification could not be made.

This affidavit established a substantial basis upon

which the magistrate could reasonably conclude that

under the totality of the circumstances, there was

probable cause to believe that Shelby would be found

at defendant’s residence. Defendant’s motion to sup-

press is denied as it pertains to the claim that the

affidavit failed to establish probable cause.

2. Execution of the Shelby Warrant

Defendant also contends that the execution of the

first warrant violated his Fourth Amendment rights

and did not comply with 18 U.S.C. § 3109. That

statute 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

32a

himself or a person aiding him in the execution of

the warrant.

See also United States v. Mendonsa, 989 F. 2d 366 (9th

Cir. 1993).

There is no factual dispute that the officers in

this case failed to adhere to the knock and announce

requirements described by 18 U.S.C. § 3109 when

they “announced their identity and purpose but,

for safety reasons, broke the garage window before

waiting for the occupants to respond.” Government’s

Memorandum in Opposition at 7.

The Ninth Circuit recently stated that the Fourth

Amendment’s “concern for the privacy, the safety,

and the property of our citizens continues and is

reflected in knock and announce requirements” such

as those established in 18 U.S.C. § 3109. United

States v. Becker, 23 F.3d 1537, 1540 (9th Cir. 1994). In

Becker, the court acknowledged that mild exigency,

such as knowledge that a person is dangerous, can

justify an immediate entry that is done without physi-

cal destruction of property. Id.

To justify a warrant entry that is accompanied by

physical destruction of property, however, more spe-

cific inferences of exigency are necessary. Id. at

1541. The government acknowledges that the offi-

cers’ entry into defendant’s home included the physi-

cal destruction of defendant’s garage window. The

government contends that highly specific facts known

about Shelby, which were reported to the magistrate,

establish adequate inferences of exigency as required

by Becker. Shelby was known to have assaulted a dep-

uty in making his escape a few days before the war-

rant was executed. He had been convicted of manufac-

turing methamphetamine, using a firearm during a

33a

crime, and armed robbery. He was reported to have

stated that he would “not do federal time.” In 1991

Shelby struck a corrections officer and kicked a jail

door. During an escape he assaulted a woman, stole

her vehicle, and rammed a police car. Shelby was also

reported to have made threats to kill witnesses and

officers during his incarceration, and prior to his im-

prisonment, to have tortured other persons with a

hammer. He was also thought to have access to large

caches of weapons.

This information regarding Shelby was reported in

the affidavit supporting the request for a warrant to

search defendant’s property, and the affiant requested

that “the court grant a no-knock warrant exception.”

Ex. A, attached to Defendant’s Memorandum in Sup-

port of the Motion to Suppress. Additionally, the

government discloses that the officers had informa-

tion pertaining to the defendant himself that height-

ened their concerns. Defendant was believed to be

selling drugs and storing drugs and guns in his gar-

age.

This Court is satisfied, as was the magistrate, that

there were sufficient exigent circumstances to have

allowed immediate entry into defendant’s residence

where entry could be obtained without physical de-

struction of property. Becker, 23 F.ed at 1540; United

States v. McConney, 728 F.2d 1195, 1206 (9th Cir.

1984) (en banc) (opening of an unlocked screen door

was found permissible because of exigent circum-

stances). The officers’ knowledge of Shelby’s violent

past justified an immediate, no-knock entry into

defendant’s residence.

Knowledge of Shelby’s violent past and defendant’s

suspected drug activity, however, was insufficient to

meet the stricter standard required by Becker when

34a

officers physically destroy property while gaining

entry into a residence. As the Ninth Circuit recog-

nized in Becker, neither knowledge of a possible

occupant’s prior convictions for armed robbery, nor

of the possible possession of a weapon, provides suffi-

cient exigency to justify breaking into a house. Nor

is the danger inherent in pursuing drug dealers

sufficient to justify an immediate entry that is

accompanied by destruction of property. Becker, 23

F. 3d at 1541.

Although there were specific facts known regard-

ing Shelby’s propensity to attempt escape, his disdain

for federal incarceration, and his past willingness to

use threats and violence as a means of intimidation,

there was no information that he was armed and

dangerous at defendant’s home, or that he would pre-

sent any specific dangers to arresting officers if

found there. There are insufficient exigent circum-

stances to establish that Shelby presented such a

threat to the force deployed to apprehend him in the

early morning of 5 November as to justify abandon

ing the “simple and ancient requirement that the

officer[s] ‘ought to signify the cause of [their] coming,

and to make request [sic] to open doors’” before de-

stroying property during a governmental intrusion

into a person’s home. Becker, 23 F.3d at 1541.

Defendant had legitimate privacy, property and

safety interests which were entitled to protection

under the Fourth Amendment. The law officers’

decision to compromise those interests by choosing

instead to destroy property while intruding suddenly

into defendant’s home, although prompted by a knowl-

edge of Shelby’s past, was not sufficiently supported

by circumstances suggesting that the fugitive posed

35a

a particular danger to others during this attempted

apprehension.

CONCLUSION

Because the specific inferences of sufficient exi-

gency which must accompany the physical destruc-

tion of property during an unannounced entry are

lacking in this case, defendant’s motion to suppress

must be granted as to this issue. There is no dispute

that the basis for the second search warrant of

defendant’s home, and the subsequent seizure of the

weapons, were direct consequences of the manner in

which the first warrant was executed. For the rea-

sons stated above, this court concludes that the

manner of this execution was improper, and the sub-

sequent “fruit” of the improper execution is tainted

and must be suppressed.

Defendant’s motion to suppress is denied as to the

contention that the initial search warrant was

unsupported by probable cause. The motion to sup-

press is granted, however, as it pertains to the law

officers’ violation of the protections afforded defend-

ant under the Fourth Amendment and 18 U.S.C. §

3109. The seizure of the weapons found in defendant’s

possession, which resulted directly from an improper

warrant execution during the early morning of 5

November 1994, is suppressed.

Dated this 4 day of May, 1995.

/s/ ANCER L. HAGGERTY

ANCER L. HAGGERTY

United States District Judge

36a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

V.

HERNAN RAMIREZ, DEFENDANT

Filed: May 4, 1995

ORDER

HAGGERTY, Judge:

Defendant’s motion to suppress (doc. # 19) is denied

in part and granted in part. The motion is denied as

to the contention that the initial search warrant was

unsupported by probable cause. The motion to sup-

press is granted, however, as it pertains to the law

officers’ violation of the protections afforded defend-

ant under the Fourth Amendment and 18 U.S.C. §

3109.

The seizure of the weapons found in defendant’s

possession which resulted directly from the improper

warrant execution during the early morning of 5

November 1994, is suppressed.

IT IS SO ORDERED.

Dated this 4 day of May, 1995.

/s/ ANCER L. HAGGERTY

ANCER L. HAGGERTY

United States District Judge

37a

APPENDIX C

AFFIDAVIT

I, Wayne Kauffmann, being duly sworn do hereby

depose and say:

1. Jam a Deputy U.S. Marshal and have been so em-

ployed for 5 years.

2. On November 2, 1994, the U.S. Marshals Service in

Portland, Oregon, received information that a pris-

oner named Alan Lawrence Shelby had escaped from

the Tillamook County Sheriff on November 1, 1994.

Alan Shelby had slipped out of his handcuffs during

transport and assaulted a Deputy Sheriff by knocking

him down. Shelby then fled on foot and has not been

seen since.

3. I then reviewed the file on Alan Shelby and obtain-

ed the following facts.

A. That Alan Lawrence Shelby was sentenced

on Criminal Case Number: CR.91-60195-1 charging

Conspiracy to Manufacture, Possession with Intent

to Distribute and Distribution of Methamphetamine,

in violation of 21 USC 841(a)(1) and 846, and the

charge of Use of a Firearm During a Drug Crime, in

violation of 18 USC 924(c).

B. That Alan Lawrence Shelby was sentenced on

August 31, 1992 by the Honorable Michael R. Hogan,

United States District Judge for the District of

Oregon, for a period of 188 months on count 1 of the

38a

Indictment, and 60 months consecutive on count 2 of

the Indictment.

C. That Alan Lawrence Shelby had a history vio-

lent escapes in his criminal history.

D. That Alan Shelby made statements in the past,

overheard by OSCI officers that he planned to escape

from a transport van when he had a chance. Shelby

also stated that he “will not do federal time”.

E. That Alan Shelby was serving a concurrent

Federal Sentence with his State Sentence at the

Oregon State Penitentiary.

F. That Tillamook County Sheriff took temporary

custody of Alan Shelby and transported him to the

Tillamook County Courthouse.

G. That Alan Shelby escaped from custody as he

stated he would.

H. That Alan Shelby attempted escape in 1991 by

striking a corrections officer in the face and kicking

out the door of the jail. Shelby ran from the jail and

assaulted a woman in a parking lot and stole her

vehicle. During the escape attempt, Shelby rammed a

police vehicle with the stolen vehicle.

I. That while awaiting trial in Eugene on Nar-

coties and Weapons charges, Shelby attempted to

escape from the Lane County Jail by constructing a

rope made from torn bed sheets and breaking a

window.

J. That Alan Shelby has made threats to kill wit-

nesses and police officers associated with his

incarceration.

39a

K. That Alan Shelby has brutally tortured others

in the past with a hammer.

L. That Alan Shelby was a major Methamphe-

tamine manufacturer and has had access to large

caches of weapons.

4. Based on this information, a task force was

established which consisted of the following agencies:

U.S. Marshals, FBI, Oregon Department of Correc-

tions and the Tillamook County Sheriff's Office. A

press release was sent to the media requesting all

information on Shelby be given to the U.S. Marshals

Task Force. Numerous leads were established in the

Eugene area.

5. On November 3, 1994, I received information from

George Kim, a Special Agent with the Bureau of

Alcohol, Tobacco and Firearms (AFT). Agent Kim

had received information from a Confidential Reliable

Informant (CRI) regarding the fugitive, Alan Shelby.

This CRI has given very reliable information to the

AFT in the past, including information that led to the

arrest of a fugitive felon. The CRI stated that the

CRI had seen a person believed to be Alan Shelby at a

residence located at: 23170 S.E. Bohna Park Rd;

Boring, Oregon. The CRI also overheard “Alan”

make a statement approximating the following: “I had

to knock out a guard”. At the time the statements

were made, the CRI thought nothing about it. The

next day, the CRI read an article describing the

escape, and relayed the information to Agent Kim.

6. Agent Kim then took the CRI out near the house

which is located on the Clackamas County line in

Boring, Oregon. Agent Kim and the CRI saw a man

40a

who they believed to be Alan Shelby, outside the

residence washing a car. Agent Kim described the

man they saw was very similar to the photograph of

Alan Shelby. The CRI also stated that this man was

the same person the CRI had seen previously at the

residence. Agent Kim said this person was very clean

cut and wearing what appeared to be a blue jumpsuit

or coveralls.

7. I then drove out to this residence with other

Deputy U.S. Marshals. The residence is located in a

rural area on about 10 acres of property. I was able to

view the residence from a nursery approximately 1000

yards away. The residence appears to be a light

colored tan brick single family house with a circular

driveway. There are numerous outbuildings which

include at least 2 travel trailers, a large blue shed,

and a smaller green shed. I saw a man come out of the

house wearing what appeared to be dark blue sweats,

and very clean cut. From the distance, I couldn’t

make a positive I.D. but I believe it was the same

person described by agent Kim.

8. The CRI stated that the person who resides at

23170 S.E. Bohna Park Rd. is known as Angel or

Havannah. A PGE power check lists the subscribers

as Hernan Rios and Cynthia Rios. I also received

information from DMV that Angel Rios has an

Oregon Drivers License under the name Angel

Estrada.

9. The latest description information from law

enforcement sources describe Alan Lawrence Shelby

as a white male, date of birth of 03-23-66, 5 feet, nine

inches tall, 160 pounds, with blue eyes and brown hair.

4la

10. Based on this information, I believe Alan Shelby

is currently hiding at the residence at: 23170 S.E.

Bohna Park Rd. Boring, Oregon. I also believe Alan

Shelby is an extreme danger to law enforcement

officers and thereby request the court grant a no-

knock warrant exception. I also request that the

court grant permission for night time service on this

warrant.

11. Based on this information, I request the permiss-

ion for a search warrant on the residence located at

23170 S.E. Bohna Park Rd. for the body of Alan

Lawrence Shelby.

10. Shelby is currently the subject of an arrest

warrant in this district for the federal charge of

Escape in violation of 18 U.S.C. Section 751 arising

out of the incident described above.

11. Because this application involves information

given by a Confidential Informant, I respectfully re-

quest that the Court keep this document sealed until

the Court grants its disclosure at the appropriate

time.

Subscribed and sworn before me

this 4 day of November , 1994.

/s/) WAYNE KAUFFMANN

WAYNE KAUFFMANN

Deputy U.S. Marshal

/s/ DONALD C, ASHMANSKAS

DONALD C. ASHMANSKAS

U.S. Magistrate

42a

APPENDIX D

[Defense Counsel’s name and address omitted]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

*.

HERNAN RAMIREZ, DEFENDANT

STIPULATION OF FACTS FOR MOTION TO

SUPPRESS ON GROUNDS OF ILLEGAL EXECUTION

OF SEARCH WARRANT

With respect only to the defendant’s argument that

evidence should be suppressed because the warrant

was executed in violation of the Fourth Amendment

and the federal no-knock statute,’ the United

States of America, through Assistant United States

Attorney Stephen F. Peifer, and Hernan Ramirez,

through his attorney, Michael R. Levine, hereby

stipulate to the following facts:

This stipulation is not relevant to defendant’s argument

that the evidence should be suppressed on the grounds that

there was no probable cause to search to the defendant’s home

for Mr. Shelby. To decide that question, the Court must look

only to the facts set forth in the affidavit to the warrant.

43a

In the pre-dawn hours of Saturday, November 5,

1994, Hernan Ramirez, his wife Cynthia, and his

three-year-old son Christopher were asleep in the

residence at 23170 Bohna Park Road in rural Boring,

Oregon. The residence has three bedrooms (including

a master bedroom), a living room, kitchen, and an at-

tached garage. A diagram of the property is attached

as Exhibit A. This property covers several acres and

includes, in addition to the residence, (1) a large work

shop building, located about 195 feet south of the

main residence (Diagram “E” in Exhibit A); (2) a

large travel trailer located about 75 feet west of the

workshop (Diagram F“); (3) a small utility trailer,

located about 75 feet from the southwest corner of

the residence (Diagram “D”); and (4) a small travel

trailer, located immediately adjacent to the east side

of the garage (Diagram “C”).

At about 6:15 a.m., about 45 armed law enforcement

officers converged on the property to execute a fed-

eral search warrant for the person of one Alan Law-

rence Shelby. A federal and state fugitive, Shelby had

slipped from his handcuffs and struck a deputy sheriff

to escape while en route to testify on an associate’s

behalf in Tillamook County. Shelby had a history of

escapes, violent conduct, and criminal convictions and

had vowed that he would not serve time in a federal

prison. Agents obtained information from a person

termed a confidential, reliable informant, that indi-

cated that Shelby had been present on the defendant’s

property. (Further facts contained in the search

warrant affidavit, attached to defendant’s memoran-

dum in support of his motion to suppress are hereby

incorporated into this stipulation). Other information

from the same informant indicated that the defendant

was possibly involved in drugs, which he kept in the

44a

garage. The informant also indicated there were

supposed to be several guns in the garage.

The U.S. Marshal sought authorization from the

issuing magistrate to serve the search warrant for

Shelby at night and do so without compliance with the

knock-and-announce requirement set forth in 18

U.S.C. § 3109. The Marshall prepared the warrant

with the appropriate language, and the Magistrate

signed it.

Special “SWAT” teams of state, county, and city

officers surrounded the property. The Portland

Police SWAT team was responsible for clearing and

securing the large work shop building, the large

travel trailer, and the small utility trailer. The

Clackamas County Sheriff’s SWAT Team would be

responsible for securing the garage area of the

residence through the East side window and for

securing the travel trailer on the east side of the

driveway immediately adjacent to the two car garage

(Diagram C“).

Officers Lowe, McCuiston, and Thackson entered

the unlocked and empty travel trailer in the driveway.

While this was occurring, members of the Portland

State SERT team passed the location of the travel

trailer to other parts of the property.

Thereafter, Deputy Barnum of the Portland Police

broke out the glass of the garage window. While he

did so, Sergeant VeraCruz shouted several times,

“Sheriffs Office, Search Warrant,” at the window.

VeraCruz then began to “gunport” the window, that

is, aiming and moving his gun through the window

ready to shoot if necessary, but he had trouble when

the window’s curtain got in his way.

At about the same time as this activity at the

garage window, an Oregon State Police officer was

45a

talking through a portable loud speaker system

located at the front of the house. Sergeant Lowe,

while at the garage window, was unable to hear what

was being announced by the OSP officer because of

VeraCruz’s yelling. OSP Lieutenant Geistwhite,

however, who was present in front of the house next

to Detective Lockwood as Lockwood announced over

the loudspeaker:

State Police—search warrant. Attention inside

23170 SE Bohna Park. This is the State Police.

All occupants inside 23170 SE Bohna Park, you

are instructed to come out the front door now. Do

not resist. Have hands on heads. You will not be

harmed.

Inside the residence, Mr. Ramirez and his wife

were awakened by outside noises. Neither could

determine what the noises were. Mr. Ramirez then

heard the breaking of glass, and he and his wife

thought they were being burglarized. Both he and his

wife feared for their safety and that of their child who

had awakened and was crying. After hearing the

glass breaking, Mr. Ramirez ran to the laundry room

closet, obtained a pistol, and ran to the entrance of the

garage area. In a state of panic, Mr. Ramirez fired

toward the ceiling in an effort to scare away the

intruders. A fragment of metal struck Veracruz in

the face causing a slight wound.

The law enforcement officers returned fire and

simultaneously shouted “police, police.” Realizing,

for the first time, that law enforcement officers

were outside and trying to enter his residence, Mr.

Ramirez ran to the living room, threw away the

firearm across the floor, and threw himself on the

floor in a prone position, shaking from fright. Mr.

46a

Ramirez states that had he known that the police

were trying to enter his home, he never would have

fired the weapon. Ultimately, Mr. Ramirez and his

wife, who was carrying their child in her arms, walk-

ed out of the house and into police custody. Despite a

thorough search of the property, the officers did not

find Shelby on the premises.

About 6:35 a.m., ATF Agent George Kim inter-

viewed Mr. Ramirez. After advice and waiver of

Miranda rights, Mr. Ramirez admitted he had fired

the weapon, that he owned the gun he used as well as

another one in the house, and that he was a convicted

felon. He said that he had been awakened by noises

outside his house and heard the sound of breaking

glass. He said he shot up in the air to scare away

people he thought were trying to burglarize his home.

Because they were asleep, Mr. Ramirez said, neither

he nor his wife had heard any announcement of

identity by the officers. Shown a picture of Shelby,

Mr. Ramirez said that a man with that appearance

might have been present on the property two days

earlier.

Mrs. Ramirez also said that she did not know that

the police were trying to enter her home and that she

believed she was being burglarized and/or attacked by

intruders.

Agent Kim used the information furnished by Mr.

Ramirez, along with a searching officer’s observation

of the gun on the living room floor, to obtain another

search warrant (attached to the government’s memo-

randum in opposition to defendant’s motion to

suppress, and hereby incorporated into this stipula-

tion). Executing the second warrant, agents re-

entered the house later the same day and retrieved

47a

the pistol on the living room floor and a second one in

a box as Mr. Ramirez had described.

SO STIPULATED BY THE PARTIES:

/s/ MICHAEL R. LEVINE

MICHAEL R. LEVINE

Attorney for Mr. Ramirez

/s/

A.U.S.A. STEPHEN F. PEIFER

for the Government

DATED: April 20,1995 DATED: 1/20/95

48a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CiRCUIT

No. 95-30158

D.C. No. CR-94-00379-1-ALH

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

U.

HERNAN RAMIREZ, DEFENDANT-APPELLEE

(Filed: Nov. 15, 1996]

ORDER DENYING PETITION FOR REHEARING

AND REJECTING SUGGESTION FOR

REHEARING EN BANC

Before: REINHARDT. KOZINSKI, and FERNANDEZ,

Circuit Judges.

The panel has voted to deny the appellant’s petition

for rehearing and to reject the suggestion for rehear-

ing en banc. Judge Kozinski would grant the petition

for rehearing and accept the suggestion for rehearing

en bane. Judge Kozinski’s dissent is amended to

delete the penultimate sentence.

The suggestion for rehearing en banc was circu-

lated to the judges of the court, and no judge request-

ed a vote for en banc consideration.

The petition for rehearing is DENIED and the

suggestion for rehearing en banc is REJECTLD.