Opposition Brief — WJM Realty, Inc. v. State Roads Commission of the Maryland Highway Administration

i

Supreme Court, U.S. |

q FILED

MAY 16 1997

No. 96-1469

CLERK

IN THE wee

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

UNITED STATES OF AMERICA,

Petitioner,

V.

HERNAN RAMIREZ,

Respondent.

MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

The Respondent, Hernan Ramirez, requests leave to file the attached Respondent’s Brief

in Opposition to Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth

Circuit without prepayment of costs and to proceed in forma pauperis pursuant to Rule 39.1 of

this Court and 18 U.S.C. §3006A(d)(6). The Respondent was represented by counsel appointed

under the Criminal Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court

of Appeals.

RESPECTFULLY SUBMITTED this 16th day of May, 1997.

.

No. 96-1469

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

UNITED STATES OF AMERICA,

Petitioner,

Vv.

HERNAN RAMIREZ,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Michael R. Levine

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Respondent

QUESTION PRESENTED

Whether the two reviewing courts that found the officers’ predawn forced intrusion into

a sleeping family’s residence unreasonable under 18 U.S.C. Section 3109 correctly determined

that, under the totality of the circumstances, more specific evidence of danger is required where

the officers entered by damaging the homeowner’s property than if they did not.

TABLE OF CONTENTS

Page

CUTTTIGNE PETS nc cece ccc veseveesevsesasunecocccenwsesete i

TABLE CH ATTA cc ccc cece ce etbercrensvecserosseenveeees iv

Mery, of 2 t~) BrrrTrTTe ri 1

A. GaP TMD 2. cccsvcccdcsccscvcccnsdeoressessucoeses 1

B. The Decision Of The District Court ......... cece eee eee e ences 2

S. The Decision Of The Court Of Appeals ... 6... 6 cece ee ees 3

II. REASONS FOR DENYING CERTIORARI ... 2.1... eee eee eee eee 6

A. Certiorari Should Be Denied And The Court Should Decline To Hear The

Government's Challenge To The Ninth Circuit’s Approach Because The

Government Embraced This Approach In The District Court And Attacked

It Only After Losing In The Court of Appeals ..... 2.6... 6c eee eens 6

1. The Government's Embrace of the Test in the District Court

CES Ck cece es bhnt esa wees beaes lous 6

2. The Government's Failure to Attack the Test in the Court of

Appeals Until a Petition for Rehearing Constitutes a Waiver ....... 7

3. The Government's Failure to Present Its Primary Argument At Any

Time In the Court of Appeals Constitutes a Waiver............. 8

B. Certiorari Should Be Denied Because The Decision Below Follows

Longstanding Precedent And Does Not Create An Intercircuit Conflict ..... 9

& Certiorari Should Be Denied Because The Decision Below Is Not

Sufficiently Important to Warrant Review .........0 eee eee eeees 14

D. Certiorari Should Be Denied Because The Result Below Is Correct For

Reasons Independent Of The Issue Raised In The Petition ............ 15

1. There Was No Probable Cause To Issue The Warrant .......... 16

ii

2. The Warrant Was Void Ab Initio Because the Magistrate Had No

Jurisdiction to Issue a “No-Knock” Warrant ................ 17

3. Section 3109 Provides No Exception For Danger To The Officers

PCE EEE occ ccvevtescereseccceccceeeoes 21

a The Criteria Of Section 3109 Are Not Coextensive With

Those Of The Fourth Amendment ................... 22

DT tkvechen@- cheese stetoeoeenetéees6« 23

é. If Section 3109 Incorporates the Common Law at the Time

of the Framing, it Follows That the Section Contains No

Exception for Apprehension of Danger Because the

Common Law Contained No Such Exception........... 25

E. Certiorari Should Be Denied Because The Court Below Decided the Case

DET bu d@eb Oca ee beeseadsererccesdcecceavestececes 26

1. In Determining The “Reasonableness” Of A No-Knock Entry The

Courts Look To The Totality Of The Circumstances Surrounding

The Entry Including The Interests Of The Occupants In Privacy,

Safety, And The Integrity Of Property ......... 0.0050 eeues 30

2. Failure To Comply With The Knock-And-Announce Principle

Magnifies--Rather Than Reduces--The Officers’ Danger ........ 33

3. The Court Below Properly Requires More Specific Information

About A Suspect’s Dangerousness Before Permitting Officers To

Break Into A Family Residence And Terrorize Its Sleeping

Occupants By Smashing A Window ....... 2.6... 6 ee eens 33

SESE “a ee ee ee ae 34

CERTIFICATE OF SERVICE AND MAILING .... 1... ee eee 36

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES

American Tobacco Co. v. Patterson,

Sey ae SEED ho. Swacsetndenec sucedbeeetecrees sbinhecvicatonee 24

Barker v. Wingo,

SPC ot batnedodese + ¢4nd0u bhbes 6s od ob deaekebaceuaes 29

Becker v. United States,

ee ED wn apdec cade 6005-4 e0besn dé ews Ghekedcensined ue 24

Boag v. MacDougall,

ED <2 6-06 bb ba da.d bene 600 166 bens ba eedet eeu eeerrne 15

Freytag v. Commissioner of Internal Revenue,

ED Cn ckeWalen 4 ee ck beh end re eabans bese ek huwns 7

Gomez v. United States,

RE EE Ee re ee ee er ree mee 17

Granfinanciera, S.A. v. Nordberg,

Se ED goo cn cet netbéebe ee ed ads os bes cédnetek eeieunne 9

Imar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

iis J. cht bak cee eis daha 56d edhe e bs pauses eace 24

Jones v. United States,

(te La catdsehddébectaterbeecedaacdes bei eeeneeskian 30

Ker v. California,

tt aS ch. toe wae be aw eae One beee ban ébee cueacawad 22, 23

Maryland v. Buie,

rn Vd elec auteadeda dunes thet es be tune ieeicaen 34

Maryland v. Wilson,

PD. asbecinddtdeddeakoveesdes cb abuctcvesticewed es 30

oH

Res

McCray v. New York,

ED 1 dan coke dveders dbebdeder dd eedesessttecseavekee 14

Miller v. United States,

i EE <a coe bib eee en pee debe sewndh étieeeed 11, 22, 26, 27

Ohio v. Robinette,

rt Cn |) lace ieeess ceueecen ep eeteseeawesneeneens 30

Richards v. Wisconsin,

hs <a dc éeenedeeeeenecseeeresewas 13, 14, 21, 22, 30, 32

Sabbath v. United States,

DVL nn. bs d cbadbcddndeheaeweas beet ceeuhe us 4, 11, 22, 25, 27

Schenck v. Pro-Choice Network of Western New York,

Oh a Se EKER RECS EOSOCO SO 60668 0 640s 15

Smith v. Phillips,

SE ED. dnc cua cubeded Kd eh 066Gb tbe eds aobsareahboens 15

Steagald v. United States,

PE ES ckvc cpu nedecs cndach weodep Seeaneh cxedaaceusede 8,9

Tennessee Valley Authority v. Hill,

Ge es MED wc dcdcocncsdccdsccovesesecésteveseccenede dows 24

Terry v. Ohio,

A SO oc ng ecbeccbenedeoacdtabe cebeseneeségbahscdheas 33

United States v. Alvarez-Sanchez,

nn. . ode bens on0bbeeeeb eS nbnbeb thacteseuceens 8,9

United States v. James,

ED «ne wh debs coccedenesesedectéees eeeseceeenhena 24

United States v. Leon,

rrr Tr rriT TT errrrirrriiri sy St rr 17

United States v. Lorenzetti,

DP P< oc oe dees ee deg cetiwatepesdandbeeed het dudytées 14

Vv

United States v. Olano,

SG, PEED oc cc ccud 626ebe SOc ARON EE he eENSSs oh 66 eden cess i)

United States v. Ortiz,

GRE, CD woccveddstbacanee sence Uist rest deasse ciwensess 7

United States v. Wells,

oop) BR Rf | BRT TT TTT ETT 8

War v. Alaska,

to & " Fes ere ee oe eee eee 15

Wilson v. Arkansas,

SRE: Gk, BED sc a hicce ve ceduneheWebebesaa sc ¥ée se 4, 9, 13, 14, 23, 25

Youakim v. Miller,

SnD sg cstreehes Maewesbenes cedenatubeleearened 8

CIRCUIT COURT CASES

Bingman v. Ward,

100 F.3d 653 (9th Cir. 1996),

Ge. GE, BET D. GR. BER SOD oc ccc ccc ccc wc eccescccseseccecceses 17

Boardman v. Estelle,

957 F.2d 1523 (9th Cir.),

i rr ee 2 ne ebb sabe ete obawu es oe beeaun le s

Bonner v. Anderson,

ee ee. cakebseknbsb bubs seebeh beeeteesebeees 13

Cooper v. Scroggy,

EE, ED oo ccc cdccccccbeceeecsscaceseesencheees 29

Dorman v. United States,

rr en On. og on epndecehedebntedeeens cue te 11, 17, 31

Gilbert v. United States,

366 F.2d 923 (9th Cir. 1966) 2... 6. eee eee eee ee eees 15, 34

United States v. Ramirez,

i Gh ih te i eee eeoeeceeseeeeuseneceua 15, 34

United Sates v. Spinelli,

ache vee e keen bs oceeeeeebbctsaebet ew oubed 22

United States v. Arias,

923 F.2d 1387 (9th Cir.),

in cick sh. ob pGbue es be:b ee C6s UObe pe eeedes bweeeenes 15

United States v. Baker,

ee oa. Oe ed easabesethecsda weewasnane 23

United States v. Bates,

SOC, EEE vecuGdds svdscevess cs bonesotectucdncecen 13

United States v. Becker,

ee Ee Ge BD o cc cc ccredevsccceucenceesesceuese 2, 3, 5, 28

United States v. Brown,

§2 F.3d 415 (2d Cir. 1995),

cert. denied, 116 S. Ct. at 754 (1996) ... 2... ce eee 10, 11, 14, 17, 31

United States v. Bustamante-Gamez,

488 F.2d 4 (9th Cir. 1973),

ee ee ae ee 9, 10, 15, 28

United States v. Dahlman,

13 F.3d 1391 (10th Cir. 1993),

re i a wl ee eee ee Rese enebeee 12

United States v. Hudson,

re i. «ceca decdebadeevseobeonsbedeeka 15, 22, 34

United States v. Kane,

n,n cokes gece ebeebeks teseosstecsene 10, 22

United States v. Kemp,

MD «oo ccc thoes esedeceseseesecseeeebess 10, 13

United States v. Kennedy,

32 F.3d 876 (4th Cir. 1994),

re 2 i. oe eee es adeue bee tebessolacrs 12

Vii

United States v. Lalor,

996 F 2d 1578 (4th Cir.),

ee a as CPOE» 6.0140 vp cd Uhedebeeaeboobos cdukc Ls 12

United States v. Lucht,

18 F.3d $41 (Sth Cir. 1994),

PED on bt chuvedetubtbésbebaencecaeuliak: 30

United States v. McConney,

728 F.2d 1195 (9th Cir.) (en banc),

I i a a el el 10, 15, 28

United States v. McShane,

LUD ‘yn e cb 006 0.ab ius dh de uabeee Guccdectelaas 15, 34

United States v. Nolan.

PP ED. cnn 6scne have saebeubekedese de canteens 21

United States v. Perez,

I i a ae see . 15,34

United States v. Pratter.

nn ee Re eT ao Senden 21

United States v. Quiroz,

i ee ic drent nar diainde kil ee kde: deka te 8

United States v. Reed,

i Cn... obd sé beheees knns Uae balee Jes 15, 34

United States v. Ruminer,

es 6c dia oh cous bun bi dedh cue tukinicsi 14

United States v. ’

982 F.2d 906 (Sth Cir.),

GUM, GEE, BEOG. Ge. BED GITTED 2. cc ccc cccccnvcccccccccccececcece 23

United States v. Scott,

I a a 15, 34

United States v. Stewart,

I i ee 11, 22

Viii

United States v. Stiver,

9 F.3d 298 (3d Cir. 1993),

RR Lr gare are nah ee as 23

United States v. Stowe,

100 F.3d 494 (7th Cir. 1996),

cert. denied, 1997 WL 27218 (April 14, 1997) ... 2... 6 eee eee, 12

United States v. Turner,

926 F.2d 883 (9th Cir.),

ee ae es ts ok he bk ba ban cows 15, 34

United States v. Von Willie,

AE + ccksGiisbdeeonnets ebece sueeens oes ek 15, 34

DISTRICT COURT CASES

King v. Marmon,

re rr Ds + cn cee web vb bateb lt coebebsss see e's ll

United States v. Sims,

ER Ee le ee ee 24

STATE COURT CASES

People v. Gastelo,

67 Cal.2d 586,

iD Ae kdb epost 60.006 0660056606000 0 000 eee o's ceces 34

Read v. Case,

ee oe ee ea Maka 25, 26

State v. Bamber,

SPURNED GUUED > cvcccecevberebesbesecesdecescceneese 18, 19

State v. Ogden,

er ED +. ss cwnes couesebiveecedadéssesesevecs 12

Trosper v. State of Alaska,

- $s ft BPO T TP Tee rere r Tc rh ee eT Tee 12

U.S. CONSTITUTION

Pe RE «non 0 hectic ewe ekwe oes O0bw hee tl ed ahercasseeeubeen 2

STATUTES & RULES

Ge ED ok OMe Scheer ee ta avhans.wrerase eben i, 2, 4, 6, 11, 13, 21-23

Or. Rev. Stats. §§ 161.205(5),

OF Te re ee rt eee ee eer eer ee 28

OTHER

DEG: TU, TSE 0 0 60 cca bene sae dey V0 cibwee ss aed ewhess 19

SAP GRE, TE, Bs TEE. 6 5 0's hada dines wehwen es sees ecnnaeue 19

SP GE, FE. Se PTE 0 so ce ee siveccceaetsnvawewreuanes ANGE ORS 20

Pee, Ge, SUED <n a Race . has 6s 650.6056 6ecs'e vee en etn bin’ 19

Se Se. REED Ccetccn es nde cane Canetonstaeuteutoun 19, 20

PE, SR, PR ONETED vac ccc bands oacseleeeebacedes en sees canes 19

2 Wayne R. LaFave,

Ee EE ee BG Gs GED oo cececee ce cheeescetacevcesé 14, 28

Driscoll, Unannounced Police Entries and

Destruction of Evidence after Wilson v. Arkansas,

ED, Slee GE, PO I ED a ccs ev cadesecadéuGececeracewes 26

Drug Abuse Prevention and Control Act of 1970,

Pub.L. 91-513, 84 Stat. 1236

(codified at 21 U.S.C. § 879(b) (1970) (repealed) ......... eee ee eee 18

PUNE oc ew een ebaeeedereresesesecrccveseciecserdevnecn 19

Launock v. Brown,

2 B. & Ald. 592, 594,

SP I AG SUED bccee cms ccewctaeseseeewevcetscverecun 28

Mahomed v. The Queen,

4 Moore 239,

OPT CTE TEER T ECE TET EEL? 25

Mericli, The Apprehension of Peril Exception

to the Knock and Announce Rule--Part I,

16 Search And Seizure Law Report (July 1989) .. 0.1... . cece eee 26

Ratcliffe v. Burton,

3 Bos. & Pul. 223

I TI ST Se oe a ea wena ins 28

xi

I, STATEMENT OF THE CASE

A. Stipulated Facts.

The government’s statement of the case omits the following important facts to which the

parties stipulated in the District Court. (Pet. App. D, 42a-47a):

1. When Mr. and Mrs. Ramirez heard the breaking of glass, they thought they were

being burglarized, and “they feared for their safety and that of their child who had awakened and

was crying.” (Pet. App. D, 45a).

2. After hearing the shattering of the garage window, Mr. Ramirez ran to a closet,

obtained a pistol, and ran to the entrance of the garage where,“in a state of panic,” he fired

toward the ceiling “in an effort to scare away the intruders.” A fragment of metal struck one of

the officers in the face causing a slight wound. Jd.

3. The law enforcement officers returned fire and simultaneously shouted “police,

police.” “Realizing, for the first time,” that the intruders were police, Mr. Ramirez ran to the

living room, threw away the firearm across the floor, and threw himself down on the floor in a

prone position, “shaking from fright.” Jd.

4. Mr. Ramirez stated that “had he known that the police were trying to enter his

home, he never would have fired the weapon.” (Pet. App. D, 46a). Ultimately, Mr. Ramirez

and his wife, who was carrying their three-year-old child in her arms, walked out of the house

into police custody. Id.

5. “Despite a thorough search of the property, the officers did not find Shelby on the

premises.” (Pet. App. D, 46a).

6. During a post-arrest interview, Mr. and Mrs. Ramirez said they had not heard any

announcement by the police because they were asleep. They were awakened by the shattering of

glass and by other noises. Jd. Mrs. Ramirez told officers that she did not know that the police

were trying to enter her home and that “she believed that she was being burglarized and/or

attacked by intruders.” Jd.

7. After one of the officers broke the garage window, he thrust his firearm through

the window and waved it about “ready to shoot if necessary, but he had trouble with this

maneuver when the window’s curtain got in his way.” (Pet. App. D, 44a).

The government’s statement also contains the following errors:

l. Shelby escaped from custody on November 1, 1994 (see Affidavit of Deputy

Marshal Kauffman, Pet. 37a 4 2), not on November 2. (Pet. 3).

a Contrary to the government’s sateen, Mr. Ramirez did not tell the agents after

his arrest that a man resembling Shelby “had been” at his house two days earlier (Pet. 5); he told

them only that such a person “might have been” on his property two days earlier (Pet. App. D,

46a).

Except for the above-mentioned errors and omissions, Mr. Ramirez accepts the

government’s statement of facts.

B. The Decision Of The District Court.

The District Court rejected Mr. Ramirez’s argument that the warrant was not based on

probable cause, but granted his motion to suppress the firearms because the officers violated 18

U.S.C. § 3109 and the Fourth Amendment. The court relied on the Ninth Circuit’s long-standing

test for exigent circumstances restated in United States v. Becker, 23 F.3d 1537, 1540-41 (9th Cir.

2

1994). Following Becker’s reasoning, the District Court acknowledged that “mild exigency,”

such as knowledge that a person is dangerous, can justify immediate entry into a residence that

is done without destruction of property. (Pet. 32a). To justify destruction of property, however,

“more specific inferences of exigency are necessary.” Id.

Applying the approach in Becker, the District Court found that although there were specific

facts regarding Shelby’s propensity to attempt escape, his disdain for federal incarceration, and

his past willingness to use threats and violence as means of intimidation, “there was no

information that he was armed and dangerous at defendant’s home, or that he would present any

specific dangers to arresting officers if found there.” (Pet. 34a). The District Court concluded

that there were

insufficient exigent circumstances to establish that Shelby presented such a threat

to the force deployed to apprehend him the early morning of 5 November as to

justify abandoning the “simple and ancient requirement that the officers ought to

signify the cause of their coming, and to make request to open doors” before

destroying property during a governmental intrusion into a person’s home.

(Pet. 34a, citations omitted).

C. The Decision Of The Court Of Appeals.

The Court of Appeals affirmed the District Court in a 2-1 opinion. The majority began

its analysis by observing that “nowhere is the protective force of the fourth amendment more

powerful than when the sanctity of the home is involved.” (Pet. 5a, citations omitted). Citing

Becker, the Court observed that the Fourth Amendment helps protect “our homes--the centers of

our family life and our refuge from the rude world.” (Pet. Sa). The Court explained further that

the Amendment protects the “privacy, the safety, and the property” of our citizens. (Pet. 6a).

Turning to the knock-and-announce principle, the Court noted that in Wilson v. Arkansas,

115 S. Ct. 1914 (1995), this Court concluded that the principle “was woven quickly into the fabric

of early American law” and 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 search and seizure. (Pet. 6a-7a, quoting Wilson, 115 S. Ct. at 1917-18).

The appellate court then observed that the common law tradition finds expression in the

federal knock-and-announce statute, 18 U.S.C. § 3109, which allows an officer to break open a

door or window of a house to execute a warrant “if, after notice of his authority and purpose,”

he is refused admittance. “We insist upon this notice,” said the Court of Appeals, “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.” (Pet. 7a). The Court reiterated that “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....”/d. (quoting Becker, 23

F.3d at 1540).

Citing this Court’s admonition in Sabbath v. United States, 391 U.S. 585, 589 (1968), the

Court of Appeals explained that “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.” (Pet. 7a). Such a mistaken belief occurred here, said

the Court, a mistake that almost ended in tragedy:

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.

(Pet. 8a). The Court of Appeals said this near-tragedy occurred because, when the officers

executed the warrant, “they brushed aside the wisdom of history and elicited a response which,

if not strictly intended, should have been reasonably foreseen.” Jd. Elaborating, the Court asked

rhetorically, “what could they have expected when they broke into the home of a sleeping family

in the early hours of the morning?” (Pet. 14a). Ramirez “fired a gun at the ceiling of his own

home when unknown intruders were invading it.” (Pet. 16a).

The Court of Appeals readily agreed that exigent circumstances could justify breaking into

a house without notice, but noted that “mere incantation of that phrase” was not sufficient. It

was the Court's responsibility to determine “what kind of exigency it was.” (Pet. 8a). The Court

noted that in the case at bar, “an officer broke into the home through a window and was ready to

fire the weapon if he deemed it necessary to do so.” Citing Becker, the Court said that more than

a mild exigency was needed and that to justify physical destruction of property “more specific

inferences of exigency are necessary.” (Pet. 8a, quoting Becker, 23 F.3d at 1541).

In determining the kind of exigency that existed, the Court of Appeals reasoned that the

forty-five armed 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.” (Pet. 8a).

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.” Jd. The Court explained that “there [was] no

suggestion that the police presence was known, no confirmation that Shelby was on the premises

and, more importantly, no indication that Shelby was armed and would resist with deadly force.”

(Pet. 10a-11a). The Court reiterated that the officers “did not know that Shelby had a gun, nor

that he had access to one, nor that he would consider using one against them.” (Pet. 11a).

5

After a thorough review of the Circuit's cases, the Court of Appeals concluded by

observing that its review was “necessarily fact bound.” (Pet. lla). Acknowledging that police

“must have some leeway in balancing the demand of the knock-and-announce requirement against

other safety considerations,” the Court said that it was the Court’s duty to determine “whether

the police struck that balance properly.” The Court concluded by holding that the officers’ entry

violated both Section 3109 and the Fourth Amendment. (Pet.17a).

The dissenting judge disagreed with the majority’s result and claimed it was inconsistent

with other cases in the Circuit. However, he never attacked the soundness of the approach set

forth in Becker; nor did he assert that the approach conflicted with that employed in any other

Circuit.

II, REASONS FOR DENYING CERTIORARI

A. — Certiorari Should Be Denied And The Court Should Decline To Hear The

Government’s Challenge To The Ninth Circuit’s Approach Because The

Government Embraced This Approach In The District Court And Attacked It

Only After Losing In The Court of Appeals.

The government challenges the test used by the Ninth Circuit to determine whether exigent

circumstances justify an officer’s failure to comply with the knock-and-announce requirements set

forth in 18 U.S.C. § 3109 and embodied in the Fourth Amendment. For each of the three reasons

set forth below, the government has waived this challenge.

In the District Court, the government did not challenge the Ninth Circuit's approach about

which it now complains. On the contrary, the government relied upon the approach to support

its view that exigent circumstances justified dispensing with the knock-and-announce requirement.

6

(Gov. Mem., Lodged Doc. A).' Indeed, in oral argument before the District Court, the

government praised Becker, which had recently applied the test, as “very useful for the court

. . . in stating the standard which in this case must be specific inferences of exigency.” (Tr. Oral

Arg. 4/25/95 at 21, Lodged Doc. B, emphasis added). The government's embrace in the District

Court of the very test it now challenges here constitutes a forfeiture or waiver of the argument.

See e.g., Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 893 (1991) (Scalia, J.,

concurring) (“a party forfeits the right to advance on appeal a nonjurisdictional claim, structural

or otherwise, that he fails to raise at trial”); United States v. Ortiz, 422 U.S. 891, 898 (1975)

(where government said below it was satisfied with the governing case, the Court “decline[s]} to

consider this issue, which was raised for the first time in the petition for certiorari”).

2. The Government’s Failure to Attack the Test in the Court of Appeals Until a

Petition for Rehearing Constitutes a Waiver.

Similarly, in the Court of Appeals, the government never questioned the appropriateness

of the Circuit's long-standing test, but argued only that the District Court had misapplied it.

(Gov. Briefs, Lodged Docs. C & D). Only after the Ninth Circuit affirmed the District Court,

did the government attack the test for the first time in its petition for rehearing and suggestion for

rehearing en banc. (Pet. Reh’g, Lodged Doc. E).

Playing the game by the rules, losing the game, then complaining about the rules is classic

sandbagging. Cf. Freytag, 501 U.S. at 895 (Scalia, J., concurring) (“sandbagging” is the practice

of “suggesting or permitting, for strategic reasons, the trial court to pursue a certain course, and

later—if the outcome is unfavorable—claiming that the course followed was reversible error”). By

'Mr. Ramirez has lodged documents A-G with the Clerk of Court.

7

waiting until a petition for rehearing to challenge the Ninth Circuit's approach that it embraced

both in the District Court and in the Court of Appeals, the government clearly waived the

argument in the Court of Appeals. Boardman v. Estelle, 957 F.2d 1523, 1534 (9th Cir.), cert.

denied, 506 U.S. 904 (1992); see United States v. Quiroz, 22 F.3d 489, 490-91 (2nd Cir. 1994)

(same).

For the same reason, the government has waived the argument in this Court because the

Court ordinarily “does not decide questions not raised or resolved in the lower court.” Youakim

v. Miller, 425 U.S. 231, 234(1976); see United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n.5

(1994) (respondent’s Fourth Ameadment claim waived when not raised below and where no

exceptional circumstances); Steagald v. United States, 451 U.S. 204, 209-10 (1981) (government

loses right to contest standing when it failed to raise issue in the lower court). Waiver or

forfeiture is particularly appropriate here where the government’s conduct is tantamount to invited

error. Cf. United States v. Wells, 117 S.Ct. 921, 925 (1997) (under the “invited error” doctrine

a party may not complain of errors that he himself invited or provoked in the District Court unless

“pressed in or passed on” by the Court of Appeals).

In this Court, the government argues for the first time that the Ninth Circuit's test

erroneously makes property damage the determinant of how specifically officers must be able to

infer a risk of danger before they may make a no-knock entry (Pet. 9), and that the need to

damage property in making an unannounced entry “has no bearing on whether...law enforcement

interests are present.” (Pet.12). The government never raised this argument in the Court of

Appeals even in its petition for rehearing where it argued only that the District Court erred in

according “dispositive significance” to property damage. (Lodged Doc. E at 12). The proper

test, the government argued below, should consider property damage but only “as a single factor

in the ‘reasonableness’ balancing test required by the Supreme Court's decision” in Wilson v.

Arkansas, 115 S. Ct. 1914 (1995). (Doc. E at 12-13).

The government's failure to present to the Ninth Circuit the argument it raises here

constitutes a waiver. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39 (1989) (argument

waived because “respondent's present defense of the judgment, however, is not one he advanced

below”); Alvarez-Sanchez, 511 U.S. at 360 n.5; Steagald, 451 U.S. at 209-210.

In sum, it is often the government which is quick to argue that petitioners have waived or

forfeited issues and arguments by not raising them below. See e.g., Gov. Brief in United States

v. Olano, 507 U.S. 725 (1993), at 1992 WL 511970. The government having waived its

argument here, the Court should deny the government's petition.

B. Certiorari Should Be Denied Because The Decision Below Follows

Longstanding Precedent And Does Not Create An Intercircuit Conflict.

Conceding that the Ninth Circuit's approach has been a “long standing rule” in the Circuit

(Pet. 11), the government nevertheless claims that the approach conflicts with that employed in

the other Circuits. (Pet. 10). The government's argument is wrong; there is no conflict. The

government fails to cite a single case that has ever even questioned the Ninth Circuit’s approach,

much less rejected it.

The Ninth Circuit’s approach was apparently first enunciated twenty-four years ago in

United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970

(1974). The approach was reaffirmed by the Court en banc in United States v. McConney, 728

F.2d 1195 (9th Cir.), cert. denied, 416 U.S. 970 (1984). McConney defines exigent

circumstances as:

those circumstances that would cause a reasonable person to believe chat entry (or

other relevant prompt action) was necessary to prevent physical harm to the

officers or other persons, the destruction of relevant evidence, the escape of the

suspect, or some other consequence improperly frustrating legitimate law

enforcement efforts.

McConney, 728 F.2d at 1195.

In distinguishing between the kinds of exigency, the Court states as follows:

mild exigency is sufficient to justify simultaneous entry when entry can be

accomplished without physical destruction of property. United States v.

Bustamente-Gamez, 488 F.2d 4, 11 (9th Cir. 1973). Mild exigency may exist

where there is a likelihood that the occupants will try to escape, resist, or destroy

evidence. More specific inferences of exigency are necessary if entry may be

obtained only by the physical destruction of property.

Id., 728 F.2d at 1206 (some citations omitted).

Cases in many Circuits cite various propositions in Bustamante-Gamez and McConney with

approval, and none question the reasoning of either case.” Tellingly, the dissenting judge below,

in his lengthy and vigorous opinion, nowhere asserts that the approach taken by the majority

conflicts with that employed in any other Circuit. In fact, he cites Bustamante-Gamez himself for

the proposition that the knock-and-announce requirement is not inflexible. (Pet. 24a).

*See United States v. Brown, 52 F.3d 415 (2d Cir. 1995) (citing Bustamante-Gamez for

the purposes underlying the knock-and-announce rule including prevention of “needless

destruction of property”), cert. denied, 116 S.Ct. at 754 (1996); United States v. Kemp, 12 F.3d

1140, 1142 (D.C. Cir. 1994) (same); United States v. Kane, 637 F.2d 974 (3rd Cir. 1991) (citing

case for propositions that Section 3109 “reduces the potential for violence to both the police

officers and the occupants of the house” and prevents damage to private property that may be

needlessly destroyed in a forced entry).

10

Furthermore the approach of the Ninth Circuit is fully consistent with this Court's

precedents interpreting 18 U.S.C. § 3109. See Miller v. United States, 357 U.S. 301, 306-07

(1958) (knock-and-announce requirements contained in Section 3109 are “deeply rooted in our

heritage and should not be given a grudging application”); Sabbath v. United States, 391 U.S. at

589 (same).

The government asserts that “[iJn no other circuit” does it face an increased burden to

justify a no-knock entry “simply because property damage occurred in the course of the entry.”

(Pet. 10). This is incorrect. It is true that other Circuits do not use the precise “mild exigency”

language that the Ninth Circuit employs. The government cites no case, however, suggesting that

in determining the objective reasonableness of the officers’ decision to make an unannounced

entry, the reviewing court may not require more specific evidence of exigency to justify damage

to property. Indeed, the cases that have discussed the issue suggest the contrary. See United

States v. Stewart, 867 F.2d 581, 584 (10th Cir. 1989) (“the conclusion of exigency under these

facts must be especially clear ...where the destruction of physical property took place”); United

States v. Brown, 52 F.3d 415, 421 (2d Cir. 1995) (one of the “touchstones for determining the

existence of exigent circumstances. ..[is] the peaceful circumstances of the entry”), cert. denied,

116 S. Ct. at 754 (1996); Dorman v. United States, 435 F.2d 385, 393 (D.C. Cir. 1970)

(reasonableness of warrantless, unannounced entry into home to look for fugitive, depends partly

on whether entry made “peaceably”); King v. Marmon, 793 F. Supp. 1030, 1033 (D. Kansas

1992) (“courts have found that only a mild indication of exigency is required...if no physical

damage to the premises is necessary to enter, although more specific inferences of exigency are

necessary when physical disruption of property is required”).

11

Several state cases apply the same test. In State v. Ogden, 161 Vt. 336, 640 A.2d 6

(1993), the court affirmed a no-knock entry primarily on the ground that there was no destruction

of property. The court said “where the police have knocked and announced their identity and

purpose, an exigency may justify immediate entry if that entry can be accomplished without

physical destruction of property.” 161 Vt. at 340, 640 A.2d at 9-10 (citing McConney, 728 F.2d

at 1206); see Trosper v. State of Alaska, 721 P.2d 134, 135 (1986) (citing Bustamante-Gamez,

court holds that where there was no destruction of property only a “mild” exigency was required

to excuse noncompliance with the knock-and-announce principle).

The cases the government cites in support of its argument that a conflict exists are fully

consistent with the approach employed by the Ninth Circuit. Although these cases do not focus

on property damage, such focus was unnecessary given the very strong showing of inferences of

danger in virtually every case. See United States v. Stowe, 100 F.3d 494, 499 (7th Cir. 1996)

(defendant seen night before with large amount of crack and two loaded guns, had criminal record

and alias, and residence had steel doors), cert. denied, 1997 WL 27218 (April 14, 1997); United

States v. Dahiman, 13 F.3d 1391, 1394 n.3, 1398 (10th Cir. 1993) (defendant said he intended

to “shoot it out” with police rather than be arrested, had reached for gun during earlier arrest, and

was alerted to police presence by barking guard dog), cert. denied, 511 U.S. 1045 (1994); United

States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994) (defendant was narcotics trafficker in

midst of dea! with others with prior firearms convictions who were probably armed and had told

friend that if he was arrested it would be for “killing a cop”), cert. denied, 115 S. Ct. 939 (1995);

United States v. Lalor, 996 F.2d 1578 (4th Cir.) (defendant arrested with a firearm and drugs six

12

days earlier, had been “belligerent” and had made “derogatory remarks” about the police, and

was cocaine dealer), cert. denied, 510 U.S. 983 (1993).

The government's insistence that in the other Circuits damage to property is irrelevant to

the question of the reasonableness of a failure to comply with Section 3109 is puzzling in view

of this Court's statement in Wilson 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 search and seizure. 115 S. Ct. at 1917-18. It is also puzzling given the

government's concession that “one of the interests that underlie the knock-and-announce principle

is the avoidance of damage to property.” (Pet. 10, citing Wilson,115 S. Ct. at 1918-19 ); see

Richards v. Wisconsin, 117 S. Ct. 1416, 1421 n.5 (1997) (interest in avoiding property damage

“not inconsequential”). In fact, the ancient common law rule was justified in part by the belief

that announcement generally would avoid the “destruction or breaking of any house...by which

great damage and inconvenience might ensue.” Wilson, 115 S. Ct. at 1917-1918 (quoting

Semayne's Case, 5 Co. Rep. 91a, 91b, 91b, 77 Eng.Rep. 194, 196 (K.B. 1603) (emphasis added).

In any event, every Circuit agrees that prevention of damage to property is one of the three

fundamental interests safeguarded by Section 3109. The Sixth Circuit summarized the law as

follows:

As recognized by other Circuits addressing this issue, the interests protected by

§ 3109 include: (1) the reduction of potential for violence to both the police officer

and the occupants of the house into which entry is sought; (2) the needless

destruction of private property; and (3) a recognition of the individual's right to

privacy in his [or her] house.

United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996) (emphasis added); see Bonner v.

Anderson, 81 F.3d 472, 474 (4th Cir. 1996) (same); United States v. Kemp, 12 F.3d 1140, 1142

13

(D.C. Cir. 1994) (same); United States v. Brown, 52 F.3d 415, 421 (2d Cir.1995) (the three

interests “are not debatable”), cert. denied, 116 S. Ct. 754 (1996); United States v. Ruminer, 786

F.2d 381, 383 (10th Cir. 1986); see generally 2 Wayne R. LaFave, Search and Seizure § 4.8(a)

at 599 (3d ed. 1996) (“preventing the physical destruction of property” is one of the three “most

worthwhile” goals underlying the rule).

At most, the approach taken by the various Circuits differs from that taken by the Ninth

Circuit only in language or in emphasis. There is clearly no conflict of the kind that warrants a

grant of certiorari. Cf. United States v. Lorenzetti, 467 U.S. 167, 173 (1984) (where one

Circuit's interpretation of a statute was “squarely inconsistent” with another's, certiorari was

granted). Even if there were a conflict, the Court should not grant certiorari until the conflict is

more fully developed by the Circuit Courts. This is particularly true now that the Court has

reviewed two knock-and-announce cases within a short time: Richards v. Wisconsin and Wilson

v. Arkansas. The Court should wait until the Circuits have worked out the various ramifications

of these new cases. See McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, J.) (certiorari

denied where issues require “further study” in low<r courts “before it is addressed by this

Court”).

C. _Certiorari Should Be Denied Because The Decision Below Is Not Sufficiently

Important to Warrant Review.

As far as Mr. Ramirez is aware, until its petition for rehearing en banc in the instant case,

the government never before challenged the Ninth Circuit’s approach. On the contrary, for the

14

last twenty-four vears, the government has constantly relied upon it to argue that no-knock entries

should be upheld. Indeed, in those cases the government has almost always been successful.’

The government's past practice of embracing the approach it now attacks strongly suggests

that the government is simply unhappy with the result reached below. It is well settled, however,

that even if the decision below were incorrect, the Court does not grant certiorari merely to

correct an erroneous result.‘ Therefore, the government's petition should be denied.

D. Certiorari Should Be Denied Because The Result Below Is Correct For Reasons

Independent Of The Issue Raised In The Petition.

The judgment below may be defended “on any ground which the law and the record

permit.” Smith v. Phillips, 455 U.S. 209, 215 n. 6 (1982); see Schenck v. Pro-Choice Network

of Western New York, 117 S. Ct. 855, 870 n.12 (1997) (citing cases). In the instant case, there

are three such grounds: (1) there was no probable cause to issue the warrant; (2) the warrant was

*See, e.g., United States v. Hudson, 100 F.3d 1409 (9th Cir. 1996); United States v. Scott,

74 F.3d 175 (9th Cir. 1996); United States v. Perez, 67 F.3d 1371 (9th Cir. 1995); United States

v. Von Willie, 59 F.3d 922 (9th Cir. 1995); United States v. Reed, 15 F.3d 928 (9th Cir. 1994);

United States v. Ramirez, 770 F.2d 1458, 1461 (9th Cir.1985); United States v. Turner, 926 F.2d

883 (Sth Cir.), cert denied, 502 U.S. 830 (1991); United States v. Arias, 923 F.2d 1387, 1391

(9th Cir.), cert. denied (1991); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973),

cert denied, 416 U.S. 970 (1974); United States v. McConney, 728 F.2d 1195 (9th Cir.) (en

banc), cert. denied, 469 U.S. 824 (1984); United States v. Scott, 520 F.2d 697, 700-01 (9th Cir.

1975); United States v. McShane, 462 F.2d 5 (9th Cir. 1972); Gilbert v. United States, 366 F.2d

923 (9th Cir. 1966).

“As Chief Justice Rehnquist has admonished, “we must never forget that this Court is not

a forum for the correction of errors.” Boag v. MacDougall, 454 U.S. 364, 367 (1982) (Rehnquist,

C.J., dissenting); see Wart v. Alaska, 451 U.S. 259, 275 n.5 (1981) (Stevens, J., concurring)

(certiorari jurisdiction is “designed to serve purposes broader than the correction of error in

particular cases”).

15

void because the magistrate lacked jurisdiction to issue a “no-knock” warrant; and (3) Section

3109 contains no exception for danger to the officer.

1. There Was No Probable Cause To Issue The Warrant.

The result below is correct because, contrary to the conclusion of the District Court, there

was no probable cause to believe that Shelby was spending nights in the Ramirez home at all,

much less the nights of November 4 and 5. The Ninth Circuit said there “may well be some

doubt” about this matter, but did not decide the issue; it assumed probable cause existed. (Pet.

12a n. 1).

The affidavit in support of the application for the warrant does not establish probable cause

to believe that Shelby was sleeping at the residence. At most, the affidavit establishes that a man

resembling Shelby had been seen during the day of November 2 or 3 working “outside the

residence washing a car.” (Pet. 40a 4 6). When Deputy U.S. Marshal Kauffman went to the

property, he could only see someone whom he believed looked like Shelby. Even this tentative

identification was questionable at best because it was made from a distance of “approximately

1000 yards” (Pet. 40a), well over one-half a mile. According to the Court of Appeals, “the most

that was known” was that Shelby was on the property “two or three days earlier.” (Pet. 12a n.1).

The high probability was that Shelby, if he had been at the residence at all, was simply working

there during the daytime for one or two days. After all, he was a fugitive, and of necessity on

the run. This showing did not establish probable cause to believe Shelby was in the residence

during the predawn hours of November 5.

Furthermore, before shattering a window and forcing entry into a family residence in

predawn hours without the requisite announcement, the officers should have more than the bare

16

minimum of probable cause to believe the fugitive is in the residence; they should have a “strong

reason” to believe that the suspect is there. See Brown, 52 F.3d at 415; Dorman v. United States,

435 F.2d 385, 393 (D.C. Cir. 1970).

In sum, the Court below correctly affirmed the District Court's suppression of the

evidence. and certiorari should be denied.‘

The result below is correct because the magistrate lacked authority to issue a “no-knock”

warrant, therefore, the warrant was void ab initio. Cf. Gomez v. United States, 490 U.S. 858,

876 (1989) (where Congress did not authorize a magistrate to select a jury over objection, the

conviction is void regardless of lack of prejudice); Bingman v. Ward, 100 F.3d 653, 658 (9th Cir.

1996) (because magistrate may not “undertake the exercise of an authority which Congress has

expressly withheld,” contempt order vacated), cert. denied, 117 S. Ct. 1473 (1997).

In the District Court and in the Court of Appeals, the government argued that the officers’

belief in the existence of exigent circumstances was reasonable in light of the magistrate’s having

issued a “no-knock” warrant. (Lodged Doc. A at 11; Doc. C at 13). This warrant authorized

the officers to dispense with the knock-and-announce requirement when executing the warrant.

(Lodged Doc. F). Not surprisingly, the government does not renew that argument here. The

government no doubt realizes that it failed to advise the magistrate that he had no authority to

‘The government cannot rely on the good faith exception to the warrant requirement

pi ame nha mpeg deceit, temepescatee-t the

in applying for a “no-knock” warrant, which the government knew not authorized

by law. See Part D2, infra.

17

issue a “no-knock” warrant. Neither Rule 41 of the Federal Rules of Criminal Procedure, which

governs the issuance of search warrants, nor any other federal rule or statute authorizes such

warrants. In fact, Congress repealed any authority for such warrants.

In 1970, Congress enacted legislation authorizing the issuance of “no-knock” warrants in

drug cases when the magistrate found probable cause to believe that, if notice were given, the

safety of the executing officer would be endangered or the destruction of evidence would occur.

See Section 509(b) of the Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84

Stat. 1236, 1274 (codified at 21 U.S.C. § 879(b) (1970) (repealed)). Barely four years later,

however, Congress repealed the law. See Section 3 of Pub.L. 93-481, 88 Stat. 1455, 1455-56

(1974). According to one court, repeal was so quick because “Congress discovered” that no-

knock warrants created a “staggering potential for violence to both occupants and police.” State

v. Bamber, 630 So.2d 1048, 1058 (Fla. 1994).

Indeed, during the four-year period when no-knock warrants were issued, “horror stories

were legion.” Bamber, 630 So.2d at 1051 (quoting Garcia, The Knock and Announce Rule: A

New Approach to the Destruction of Evidence Exception, 93 Colum. L. Rev. 685 (1993)).

Over 100 newspaper articles reproduced in the Congressional Record, described

a repeated scenario: terrified citizens, thinking themselves targets of burglary or

more frightening acts, discovered that they were instead being searched by law

enforcement officers who had entered their home without notice. In an exhaustive

eight-week investigation by The New York Times, consisting of interviews with

victims of “no-knock” raids, reporters found that innocent Americans around the

country have been subject to dozens of mistaken, violent and often illegal police

raids by local, state and federal narcotics agents in search of illicit drugs and their

dealers.

18

Bamber at 1051 (quoting Garcia at 705 ); see 120 Cong. Rec. 22,886-88 (1974) (N.Y. Times

Article); 120 Cong. Rec. 26,874 (1974) (Wall St. J. Article); 119 Cong. Rec. 15,170-76 (1973)

(numerous articles and letters to Senator Ervin); 119 Cong. Rec. 23, 242-58 (1973).

Prepatory to the passage of the repealing legislation, House and Senate Committees

extensively documented the abuses brought about by four years of “no-knock” warrants. The

House Committee noted, for example, “several instances in which Department of Justice

enforcement agents in their eagerness to crush illicit drug trafficking have mistakenly broken into

the homes and apartments of dozens of innocent families, terrorizing the occupants and heavily

damaging property.” H. Report 93-1248, at 6, 8. The Committee also determined that law

enforcement agencies were showing “a lack of discretion and attention to alternative methods of

securing evidence on the part of the Department of Justice.” Jd. at 8; 120 Cong. Rec. 26,781

(1974). In 1974, the Senate voted to repeal the no-knock statute by a 2 tol margin. Garcia,

supra at 703.

Thus, the empirical evidence showed that rather than reducing violence, no-knock warrants

did the opposite: they “had in several instances resulted in serious injury and death of law

enforcement officers and civilians.” H. Report 93-1248 at 8; 120 Cong. Rec. 26,781 (1974). As

concisely put by Senator Sam Ervin,

I know of no provision of law which puts officers of the law in more jeopardy of

life and limb than...“no-knock” searches of the homes of our citizens. When

someone attempts to break into the dwelling house of the average citizen in the

night time, the average citizen is not going to wait to ascertain whether it is an

officer of the law or whether it is a burglar. He is going to resist to the utmost,

even to the taking of lives....It is ridiculous to say that breaking in without notice

serves as protection for the police officer. The contrary is true. He is more likely

to lose his life if he attempts to break in without notice.

19

120 Cong. Rec. 22,884 (1974) (emphasis added); see also Remarks of Representative Tim Lee

Carter, 120 Cong. Rec. 26,781 (1974) (“In the area which I come from, if a man knocks the door

down and goes in [without notice], he usually comes out feet first and the undertaker takes care

of him. A man’s house is his castle”).

Unfortunately, even today, noncompliance with the knock-and-announce rule continues to

cause needless death and tragedy among both police officers and civilians alike. Lodged with the

Court (Doc. G) are several newspaper articles describing needless tragedies that have occurred

in recent years, four of which are summarized below.°

Without referring either to the federal experience with “no-knock” warrants, or to the

contemporary accounts of tragedies, this Court recently suggested in obiter dictum that the

practice of some state courts to issue such warrants was “entirely reasonable” under some

*(1) The shooting of Juan Rocha-Gallegos seven times during a no-knock drug raid. Rocha-

Gallegos said he was awakened by the sound of the locks of his house being shot off, then jumped

out of bed when six people burst ti. ugh the door and shined flashlights on him. He was shot in

the chest, arms, and legs. (Denver Post, April 3, 1996, 1996 WL 6689450); (2) the death of

Accelyne Williams, a 75 year-old reverend, who died from a heart attack after a heavily armed

team of 13 officers, using a no-knock warrant, mistakenly burst into his second-floor apartment,

chased him to the bedroom, and wrestled him to the floor. The police later admitted that they had

barged into the wrong apartment. (The Boston Globe, January 27, 1995, 1995 WL 5924468); (3)

the near-fatal shooting of Donald L. Carlson, a Fortune 500 company executive, whose home was

broken into by a heavily armed force of federal agents looking for drugs. Aroused from a deep

sleep, Carlson wounded an officer as he fired in self-defense at persons he perceived to be

criminal intruders; he was himself wounded three times. No drugs were found. (San Diego Union-

Tribune, December 13, 1992, 1992 WL 4766590); (4) the death of multimillionaire Donald Scott

during a no-knock raid on his Malibu ranch by police looking for drugs. None were found.

Roused by his wife’s cries, after the task force burst into his home, and partially blinded by a

Cataract operation, the 61-year-old Scott rushed into the living room holding a revolver above

his head. The police said that instead of dropping the weapon as ordered, Scott lowered it in the

officers’ direction. Scott was shot twice in the chest and died. (San Francisco Chronicle,

November 2, 1992, 1992 WL 6287829).

20

circumstances. Richards, 117 S. Ct. at 1422 n.7. Clearly, by repealing the federal no-knock law,

Congress reached the opposite conclusion, and, at least with respect to Section 7'%9 and the

federal courts, unequivocally rejected the reasonableness of no-knock warrants.

In sum, the warrant issued in the instant case was void, and by affirming the suppression

of evidence, the court below reached the correct result. Therefore, certiorari should be denied.

Certiorari should also be denied because, by requesting the magistrate to issue a “no-knock”

warrant, the government asked the magistrate to perform an unlawful act, and the magistrate did

so. The Court should not reward the government’s conduct by granting the government's petition

here.

3. Section 3109 Provides No Exception For Danger To The Officers

Executing the Warrant.

The result below is correct because Section 3109 contains no exception for danger to the

officers executing the warrant. In enacting the statute, Congress balanced the interests and

determined that compliance with Section 3109 best safeguards the safety of both officers and

civilians. As stated by one court, “Congress could reasonably have concluded that a directive

such as Section 3109 would enhance the safety of law enforcement officials.” United States v.

Nolan, 718 F.2d 589, 596 n.10 (3rd Cir. 1983); see United States v. Pratter, 465 F.2d 227, 233

n.16 (7th Cir. 1972) (“strict compliance with the statute is a protection to the safety of the

arresting officers and to the effective accomplishment of their mission.”).

Mr. Ramirez acknowledges that the knock-and-announce requirement embodied in the

Fourth Amendment can “give way under circumstances presenting a threat of physical violence.”

21

Richards v. Wisconsin, 117 S. Ct. at 1420 (quoting Wilson, 514 U.S. at 936). This exception is

in addition to three others that have been previously recognized:

(1) where the persons within already know of the officers’ authority and purpose,

or (2) where the officers are justified in the belief that persons within are in

imminent peril of bodily harm, or (3) where those within, made aware of the

presence of someone outside (because, for example, there has been a knock at the

door), are then engaged in activity which justifies the officers in the belief that an

escape or the destruction of evidence is being attempted.

Ker v. California, 374 U.S. 23, 47 (1963) (Brennan, J., concurring and dissenting).

Importantly, while “danger to the officer” is an exception under the Fourth Amendment,

this Court has never held it is also an exception under Section 3109. See Sabbath, 391 U.S. at

591 (not necessary to decide the issue because facts do not show officer at risk); Miller v. United

States, 357 U.S. at 309 (court need not decide whether Section 3109 permits any exceptions for

exigent circumstances because necessary facts not present).

Mr. Ramirez also acknowledges that the Circuits reaching the issue, including the Ninth,

hold that compliance with the requirements of Section 3109 may be excused if the safety of the

executing officer is at risk.’ As shown below, however, none of these cases is correctly reasoned

because none has undertaken the appropriate statutory and historical analysis.

a. The Criteria Of Section 3109 Are Not Coextensive With Those Of The

Fourth Amendment.

Contrary to the government’s assumption (Pet. 11 n.3), the statutory and Fourth

Amendment criteria governing exceptions to the knock-and-announce requirements are not the

"See, e.g., Hudson, 100 F.3d at 1417 (9th Cir. 1996); United States v. Kane, 637 F.2d

974, 978 (3rd Cir. 1981); United Sates v. Spinelli, 848 F.2d 26, 28 (2d Cir. 1988); Stewart, 867

F.2d at 584.

22

same. Compliance with the Fourth Amendment standard is measured not by the specific

requirements of Section 3109, but only by what is “reasonable.” See Wilson, 115 S. Ct. at 1918

n.3 (“in Miller, our discussion focused on the statutory requirement of announcement found in

18 U.S.C. § 3109, not on the constitutional requirement of reasonableness”); Ker v. California,

374 U.S. 23, 38-41 (1963) (reasonableness standard of Fourth Amendment, rather than Section

3109, governs how state officers enter a suspect’s home); United States v. Baker, 16 F.3d 854,

856 (8th Cir. 1994) (entry by state officers governed only by “reasonableness” standard of Fourth

Amendment, not by statutory criteria of Section 3109).

Thus, the Fourth Amendment and statutory no-knock provisions “are not coextensive.”

United States v. Stiver, 9 F.3d 298, 301 (3d Cir. 1993), cert. denied, 114 S. Ct. 1115 (1994).

Some conduct authorized by Section 3109 may nonetheless violate the Constitution; conversely,

“some conduct permissible under the Constitution may be barred by Section 3109.” Stiver, 9

F.3d at 302; see United States v. Sagaribay, 982 F.2d 906, 910 (Sth Cir.) (although search

violated Section 3109, it was still reasonable under the Fourth Amendment), cert. denied, 114 S.

Ct. 160 (1993).

b. The Plain Words of Section 3109 Contain No Exception for Officer Safety.

In Section 3109, Congress provided that in executing a search warrant at a residence, an

officer may force entry by breaking open a door or window in only three limited circumstances:

(1) if, after notice of his authority and purpose, he is refused admittance, (2) when necessary to

liberate himself, or (3) when necessary to liberate a person aiding him in the execution of the

warrant. Conspicuously absent is any exception for officer safety. From this absence, it is

reasonable to infer that Congress intended no such exception.

23

Traditional rules of statutory construction support this view. In interpreting a statute, the

Court looks first to the plain meaning of the words used by Congress. As the Court has

explained:

As in all cases involving statutory construction, our starting point must be the

language employed by Congress, and we assume that the legislative purpose is

expressed by the ordinary meaning of the words used. Thus, absent a clearly

expressed legislative intention to the contrary, that language must ordinarily be

regarded as conclusive.

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (citations and quotations omitted);

accord United States v. James, 478 U.S. 597, 604 (1986). The language of Section 3109 is quite

clear. The enumerated exceptions do not include an exception for apprehension of danger to the

officers. Had Congress intended to create such an exception, it would have said so. See United

States v. Sims, 231 F. Supp. 251, 257-58 (D. Md. 1964) (risk of danger to officer if he complies

with Section 3109 does not excuse officers’ breaking into hotel room by use of pass key because

Section 3109 contains no such exception). Under such circumstances the rule of “exclusio

alterius” applies.*

Furthermore, Congress is “presumed to know the law.” Jmar Seguros y Reaseguros, S.A.

v. M/V Sky Reefer, 115 S. Ct. 2322, 2336 (1995) (Stevens, J., dissenting). By 1917, when

"See Becker v. United States, 451 U.S. 1306, 1309 (1981) (On Application for Stay,

Rehnquist, J.,) (“[tJhe language of Rule 62(d) seems clear, and the enumerated exceptions do not

include tax summons enforcement proceedings. Expressio unius est exclusio alterius”); Tennessee

Valley Authority v. Hill, 437 U.S. 153, 188 (1978) (“In fact, there are no exemptions in the

Endangered Species Act for federal agencies, meaning that under the maxim expressio unius est

exclusio alterius, we must presume that these were the only “hardship cases” Congress intended

to exempt”).

24

Section 3109 was enacted, courts had recognized an exception for officer safety.’ Congress

nevertheless did not mention this exception in Section 3109 although Congress expressly included

other exceptions. This omission provides further support for the conciusion that Congress

intended no exception for officer safety.

In addition, Congress’ repeal of the federal no-knock legislation only four years after its

enactment, as described at pages 17-20 above, reinforces the conclusion that Congress did not

intend an exception for apprehension of danger to exist. In repealing this legislation, Congress

implicitly declared that compliance with the requirements of Section 3109 best assures the safety

of the officers and civilians alike.

c. If Section 3109 Incorporates the Common Law at the Time of the

Framing, it Follows That the Section Contains No Exception for

Apprehension of Danger Because the Common Law Contained No Such

Exception.

The Court has suggested that Section 3109 incorporates the common law’s knock-and-

announce principle as well as its common law exceptions at the time of the framing of the Fourth

Amendment. See Wilson, 115 S. Ct. at 1918 n.3; Sabbath, 391 U.S. at 591 n.8 (“exceptions to

any possible constitutional rule relating to announcement and entry have been recognized... and

there is little reason why those limited exceptions might not also apply to Section 3109, since they

existed at common law, of which the statute is a codification”).

*See Read v. Case, 4 Conn. 166, 170 (1822)(plaintiff who “had resolved...to resist even

to the shedding of blood...was not within the reason and spirit of the rule requiring notice.”);

Mahomed v. The Queen, 4 Moore 239, 247, 13 Eng.Rep. 293, 296 (P.C. 1843) ("[wJhile he was

ae ee to be pleased to open it for

If so, the conclusion that Section 3109 does not contain an exception for officer safety is

strengthened, because at the time of the framing, the common law provided no such exception.

With respect to English common law, there are “no indications” that it “ever evolved an exception

to the knock and announce rule based upon a reasonable apprehension of peril by the peace

officer.” Mericli, The Apprehension of Peril Exception to the Knock and Announce Rule--Part

I, 16 Search And Seizure Law Report (July 1989) at 132.

With respect to America, there are “no reported cases in America before 1791 discussing

any exigent circumstances exception to announcement.” Driscoll, Unannounced Police Entries

and Destruction of Evidence after Wilson v. Arkansas, 29 Colum. J.L. & Soc. Probs.1 (Fall,

1995) at 26 (emphasis added). The first time a danger-to-the-officer exception was recognized

in America was in 1822 in Read v. Case, 4 Conn. 166, 170 (1822). There the court held that

a plaintiff who “had resolved...to resist even to the shedding of blood...was not within the reason

and :>/rit of the rule requiring notice.” Jd.

At the time of the framing, therefore, about 40 years before Read was decided, the

common law did not recognize an apprehension-of-danger exception to the knock-and-announce

requirement. Therefore, Section 3109 contains no such exception, and the Court below reached

the correct result.

E. Certiorari Should Be Denied Because The Court Below Decided the Case

Correctly.

In Miller, the Court explained that “[f]rom earliest days, the common law drastically

limited the authority of law officers to break the door of a house to effect an arrest.” Jd. at 313

(emphasis added). The Court explained further:

26

Every householder, the good and the bad, the guilty and the innocent, is entitled

to the protection designed to secure the common interest against unlawful invasion

of the house....Because the petitioner did not receive...notice before the officers

broke the door to invade his home, the arrest was unlawful and evidence seized

should have been suppressed.

Miller, 357 U.S. at 313-14.

In light of the principle that animates Miller, the government's insistence that property

damage must play no part in the determination of whether the officers acted in an objectively

reasonable manner in deciding to make a forced entry into a residence in the early morning is

wrong.'® It constitutes not only a crabbed view of the knock-and-announce principle enacted by

Congress, but also a “grudging application” of the statute of the kind forbidden by Miller and

Sabbath. Prevention of damage to property is a fundamental interest served by the knock-and-

announce principle. Thus, the government’s argument that property damage is irrelevant to the

question whether the government has complied with Section 3109 makes no sense.

The law is concerned with prevention of property damage not merely for the sake of the

property itself, but also because of the fear that a homeowner, upon hearing the shattering of a

window or the breaking down of a door, will mistakenly believe his residence is being invaded

by criminals and will take action to defend himself and his family. See Miller, 357 U.S. at 313-14

n.12 (compliance with Section 3109 “is also a safeguard for the police themselves who might be

mistaken for prowlers and be shot down by a fearful householder.”). This is precisely what

occurred in the case at bar. Indeed, as recognized in Miller, one of the principal objectives of the

The government makes an alternative argument that property damage should at most be

considered a single factor in the reasonableness inquiry, but should not act as a “switch” that

elevates the level of evidence of dangerousness required to dispense with a prior announcement.

(Pet. 17 n.7).

27

common law’s knock-and-announce requirement was to protect the arresting officers from being

shot as trespassers,

...for if no previous demand is made, how is it possible for a party to know what

the object of the person breaking open the door may be? He has a right to consider

it as an aggression on his private property, which he will be justified in resisting

to the utmost.

Launock v. Brown, 2 B. & Ald. 592, 594, 106 Eng. Rep. 482, 483 (K.B. 1819); see Ratcliffe v.

Burton, 3 Bos. & Pul. 223, 230, 127 Eng.Rep. 123, 126-27 (K.B. 1802) (“such conduct

must...provoke [] resistance”).

The same rationale obtains today. As stated by one commentator,

an unannounced breaking and entering into a home could quite easily lead an

individual to believe that his safety was in peril and cause him to take defensive

measures which he otherwise would not have taken had he known that a warrant

had been issued to search his home.

2 Wayne R. LaFave, Search and Seizure (2d ed. 1987) § 4.8(a) at 272 (quoting State v. Carufel,

112 R.I. 664, 314 A.2d 144 (1974)); see Or. Rev. Stats. §§ 161.205(5), 161.219(2), 161.225

(homeowner may used deadly force to protect persons and property if reasonably necessary).

Thus, contrary to the government’s suggestion (Pet. 17-18 n. 7), even a “minor amount” of

property damage constitutes a basis for finding an unannounced entry unlawful.

The approach of the Ninth Circuit, as set forth in Bustamante-Gamez, McConney, and

Becker is merely a particular application of the very test that the government urges is the law; that

is, under the totality of circumstances, did the officers reasonably believe that entry without notice

was necessary to prevent harm to the officers or other persons, to prevent the fugitive’s escape,

or to prevent destruction of evidence. (Pet. 9). As recently restated by the Ninth Circuit:

Exigent circumstances are those circumstances that would cause a reasonable

person to believe that entry was necessary to prevent physical harm to the officers

or other persons, the destruction of relevant evidence, the escape of the suspect,

or some other consequence improperly frustrating legitimate law enforcement

efforts. In particular, we have held that “mild exigency” is sufficient to justify

simultaneous or immediate entry when entry can be accomplished without any

physical destruction of property. Mild exigency exists where there is a likelihood

that the occupants of the dwelling will try to escape, resist, or destroy evidence.

McConney, 728 F.2d at 1206.

Hudson, 100 F.3d at 1417 (some citations omitted).

In describing some of “those circumstances” which inform the reasonableness inquiry, the

Ninth Circuit quite properly considers the presence or absence of property damage an important

factor. Furthermore, it is entirely appropriate for the Court of Appeals to reason that more

specific inferences of danger are necessary to justify property damage during an unannounced

entry into a family residence at a time when all the occupants are asleep. When a court engages

in a balancing test, as the court below did here, not only does nothing preclude the court from

determining that if one particular important factor exists, there should be more of another factor,

but rather, this balancing of factors is an inherent part of the weighing process. Cf. Barker v.

Wingo, 407 U.S. 514, 530-31 (1972) (in determining whether right to speedy trial is violated, a

lengthy delay acts as “triggering mechanism” requiring consideration of other factors); Cooper

v. Scroggy, 845 F.2d 1385, 1390-91 (6th Cir. 1988) (in considering whether confession

involuntary under totality of circumstances, evidence of physical abuse carries great weight and

raises presumption of involuntariness which other factors must overcome).

In Richards v. Wisconsin, the Court stated that the Fourth Amendment's knock-and-

announce requirement is excused if an officer can show a “reasonable suspicion” that danger will

ensue if the officers give notice of their presence. The Court said that this showing “is not high,”

but it nevertheless must be met. 117 S. Ct. at 1422. Even assuming that this minimal

constitutional standard applies to this Section 3109 case, the result reached by the Court of

Appeals is consistent with that standard.

In Richards, the Court did not suggest that in evaluating “reasonableness” the courts must

consider only the executing officer’s state of mind with respect to his safety. On the contrary,

“reasonableness” is measured “in objective terms by examining the totality of the circumstances.”

Ohio v. Robinette, 117 S. Ct. 417, 420 (1996) (emphasis added). Thus, a proper inquiry

necessitates a consideration of “all the circumstances” surrounding the event. /d. at 421 (quoting

Florida v. Bostick, 501 U.S. 429, 439 (1991)). The “touchstone of our analysis under the Fourth

Amendment is always the reasonableness in all the circumstances of the particular governmental

invasion of a citizen’s personal security,” Maryland v. Wilson, 117 S. Ct. 882, 884 (1996)

(emphasis added).

With respect to no-knock entries under the federal statute in particular, the Court has

emphasized that “a claim under 18 U.S.C. § 3109 depends upon the particular circumstances

surrounding the execution of the warrant.” Jones v. United States, 362 U.S. 257, 272 (1960)

(citing Miller, 357 U.S. at 301, emphasis added); see United States v. Lucht, 18 F.3d 541, 549

30

(Sth Cir. 1994) (in reviewing the reasonableness of a no-knock entry under the statute, courts

must consider “the particular facts regarding the premises to be searched and the circumstances

surrounding the execution of the warrant”), cert. denied, 513 U.S. 949 (1994).

For example, courts should consider, among other things: (1) whether the home is

occupied by an innocent, sleeping family as opposed to a force of vigilant, armed thugs, (2)

whether the entry is to be during the day or in the pre-dawn hours of the morning when the

occupants will be sleeping, (3) whether or not children are likely present , (4) whether or not the

occupants are likely to be frightened and mistakenly believe they are being attacked by criminals,

(5) the degree of likelihood that the fugitive sought is actually on the premises, and if he is,

whether he is armed and prepared to shoot at the police, (6) whether the officer must enter at all,

(7) whether entry can be achieved by means of a ruse, and, most importantly, (8) whether the

officer will enter peacefully through an unlocked door or whether he will enter violently, by

means of kicking in the door or breaking a window. Cf. Brown, 52 F.3d at 421 (listing other

factors); Dorman 435 F.2d at 392-393 (setting forth similar list of circumstances that should be

considered when determining reasonableness of unannounced, warrantless entry). In the case at

bar, the Ninth Circuit considered the totality of circumstances mentioned above, and its holding

was “necessarily fact-bound.” (Pet. 11a).

The government seeks to minimize the individual’s interest in his property, arguing that

it is less fundamental than the interest in avoidance of unnecessary surprise. (Pet. 10). The

government cites no authority for this proposition because the law is to the contrary. As shown

above at pages 13-14, preventing damage to property is one of three equally valid purposes

31

underlying the knock-and-announce principle. Moreover, in Richards, this Court rejected a

similar argument. There the Court admonished as follows:

...{ T]he individual interests implicated by an unannounced, forcible entry should

not be unduly minimized....[T]he common law recognized that individuals should

have an opportunity to themselves comply with the law and to avoid the destruction

of property occasioned by a forcible entry. These interests are not inconsequential.

Richards v. Wisconsin, 117 S. Ct. at 1421 n.5 (citations omitted).

Finally, the government concedes that excessive or “wholly unnecessary” destruction of

property by law enforcement officers in the execution of a warrant “may violate the Fourth

Amendment's reasonableness standard, whether or not officers knock and announce before entry.”

(Pet. 13-14). This concession seriously undermines the government's position because, as

observed by the Court of Appeals, Mr. Ramirez’s property “was needlessly damaged.” (Pet. 8a).

To justify its actions, the government argues that breaking the garage window

simultaneously with entry was a reasonable way “to draw the occupants” away from the doors of

the residence. (Pet. 17). This makes no sense for two reasons. First, reasonable law

enforcement officers would hardly divert a dangerous fugitive to the garage, the very place where

guns were supposed to be.'' Second, as found by the Court of Appeals, and as confirmed by the

wisdom of 700 years of common law, this kind of gratuitous property damage was bound to

"The government appears to have its signals mixed. In the Court of Appeals, the

government argued the exact opposite; there the government suggested that the agents acted wisely

because they were preventing the occupants from gaining access to the firearms in the garage

(Lodged Doc. C at 7, Doc. D at 1-2). The government’s contradictory arguments highlight the

sheer speculation in which the government engages to justify the officers’ unreasonable actions

here.

32

provoke a violent reaction by a homeowner who would act to defend his family and his property.

(Pet. 7a-8a).

2. *. r . ™

The government argues that the Ninth Circuit's approach has dangerous consequences and

“threatens to jeopardize the safety” of officers executing warrants. (Pet. 10). For the reasons set

forth in Part D2, it is clear that the opposite is true. The very real dangers of no-knock forced

entries are apparent from Congress’ disastrous experiment with, and speedy repeal of, the no-

knock law, the experience of 700 years of common law, and the continuing tragedies recorded in

contemporary newspaper accounts. Failure to comply with the strict requirements of the knock-

and-announce principle has caused, and continues to cause, many more death to both officers and

civilians than the reverse.

The government argues that the Ninth Circuit’s methodology is wrong because it is

unreasonable to demand specific information as to dangerousness because “such specific

inferences are ordinarily unavailable to officers.” (Pet. 14). This argument is wrong for two

reasons.

First, the “central teaching of this Court’s Fourth Amendment jurisprudence...is a demand

for specificity in the information upon which police action is predicated.” Terry v. Ohio, 392

U.S. 1, 21 n.18 (1968). In justifying the particular intrusion, the police officer “must be able to

point to specific and articulable facts which, taken together with rational inferences from those

33

facts, reasonably warrant the intrusion.” Jd. at 21; see Maryland v. Buie, 494 U.S. 325, 334,

336-37 (1990) (specific and articulable facts must be shown to authorize the police to look for

others present in a home); People v. Gastelo, 67 Cal.2d 586, 588-89, 432 P.2d 706, 708 (1967)

(specific showing must always be made to justify forcible entry). Requiring specific inferences

of danger is particularly appropriate here where officers terrorize a sleeping family by breaking

a window in pre-dawn hours, causing the homeowner to believe that his home is being invaded

and to take wholly predictable actions to defend himself, his wife, and his child.

Second, the long history of government success under the approach that it now attacks

belies the assertion that specific inferences of danger are ordinarily unavailable to the officers. The

Ninth Circuit’s cases are rife with instances of the availability of such inferences to the police.”

CONCLUSION

Ironically, the danger to the officers in the instant case arose not from Shelby, who was

not on the premises, but rather from the officers’ unreasonable failure to comply with the simple

and ancient requirement that the officers “ought to signify the cause of their coming, and to make

"See e.g., United States v. Hudson, 100 F.3d 1409, 1417 (1996) (defendant recently sold

drugs to informant, had prior conviction for drugs and observed with guns and drugs in bedroom);

United States v. Scott, 74 F.3d 175, 176 (9th Cir. 1996) (defendant observed with weapon in his

hand); United States v. Perez, 67 F.3d 1371, 1384 (9th Cir. 1995) (defendant “had shot and killed

a suspected informant” and said he would “go down shooting”); United States v. Von Willie, 59

F.3d 922, 926 n.3 (9th Cir. 1995) (defendant armed and dangerous); United States v. Reed, 15

F.3d 928, 934 (9th Cir. 1994) (officer knew defendant likely armed and might escape and

slammed door in officer's face); United States v. Turner, 926 F.2d 883 (9th Cir.) (defendant

overheard to say that he kept gun for use against police), cert denied, 502 U.S. 830 (1991);

United States v. Ramirez, 770 F.2d 1458, 1461 (9th Cir.1985) (police knew from teletype that

suspects in a kidnaping and murder investigation were to be considered armed and dangerous);

United States v. McShane, 462 F.2d 5, 6 (9th Cir. 1972) (defendant armed and previously

convicted of shooting at an officer); Gilbert v. United States, 366 F.2d 923, 931 (9th Cir. 1966)

(armed and alleged to have killed police officer).

34

request tc open doors” before destroying property and causing terror to a sleeping household.

In the words of the court below, “[hjad Ramirez been less reasonable [by firing at the intruder

at the window instead of at the ceiling), the officer at the window might have been killed; had

Ramirez heen less wise, he or his family might have been killed.” (Pet. 8a). Senator Sam Ervin

could have had this case in mind when he said:

When someone attempts to break into the dwelling house of the average citizen in

the night time. the average citizen is not going to wait to ascertain whether it is an

officer...or...a burglar. He is going to resist to the utmost, even to the taking of

lives....It is ridiculous to say that breaking in without notice serves as protection

for the police officer. The contrary is true.

See page 21, supra.

Because the Ninth Circuit reached the proper result, and for all the other reasons set forth

above, the Court should deny the government's request for certiorari.

RESPECTFULLY SUBMITTED this 16th day of May, 1997.

ies

R. Levine

for Defendant-Appellant

35

No. 96-1469

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

UNITED STATES OF AMERICA,

HERNAN RAMIREZ,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CERTIFICATE OF SERVICE AND MAILING

I, Michael R. Levine, counsel of record and a member of the Bar of this Court, certify that

pursuant to Rule 29.2, service has been made of the within MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS and RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI on the counsel for the petitioner by depositing in the

United States Post Office, in Portland, Oregon on May 16, 1997, first class postage prepaid, a

certified true. exact and full copy thereof addressed to:

Walter Dellinger

Acting Solicitor General

Departmen of Justice, #5614

10th & Constitution, N.W.

Washington, D.C. 20530

Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk

of the United States Supreme Court, by depositing them in a United States Post Office Box,

addressed to 1 First Street, N.E.. Washington, D.C., 20543, for filing on May 16, 1997, with

first<lass postage prepaid.

DATED this 16th day of May, 1997.