# Opposition Brief — WJM Realty, Inc. v. State Roads Commission of the Maryland Highway Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0057%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1212 ## Text 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 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 /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