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

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JUN “upreme Court, U. $,

aed Pitas

MAY 16 1997

No. 96-1469 CLARK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

UNITED STATES OF AMERICA,

Petitioner,

HERNAN RAMIREZ,

Respondent.

DOCUMENTS A-G

LODGED IN SUPPORT OF 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

TABLE OF CONTENTS

Title Document

Government's District Court Memorandum in Opposition to

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Government’s Opening Brief in the Ninth Circuit ... 2.6... . 0. cece eee

Government’s Reply Brief in the Ninth Circuit ...... 2.0... ccc eee eee eee

Government's Petition for Rehearing and Suggestion for

NE 60.4.6 60 we wees SUG RS ae CEN 664 06h be eek teks bees a 68

KRISTINE OLSON ROGERS

United States Attorney

District of Oregon

OSB #73254

STEPHEN F. PEIFER

Assistant United States Attorney

888 S.W. Fifth Avenue

Suite 1000

Portland, OR 97204-2024

(503) 727-1000

OSB #74252

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

CR No. 94-379-HA

UNITED STATES' MEMORANDUM

)

. Vv. )

) IN OPPOSITION TO DEFENDANT'S

)

HERNAN RAMIREZ, MOTION TO SUPPRESS EVIDENCE

Defendant.

The United States of America, by and through Kristine Olson

Rogers, United States Attorney for the District of Oregon, and

Assistant United States Attorney Stephen F. Peifer, submits this

memorandum in opposition to defendant's motion to suppress

evidence.

I. INTRODUCTION

In the pre-dawn hours of November 5, 1994, several dozen law

enforcement officers converged on defendant's house in rural

Boring, Oregon, to execute a federal search warrant for the

person of Alan Lawrence Shelby. A federal and state fugitive,

Shelby had slipped from his handcuffs and struck a deputy sheriff

to escape while en route to testify on an associate's behalf in

Tillamook County. Shelby had a long history of escapes, violent

conduct, and criminal convictions, and had vowed that he would

not serve time in a federal prison.

The U.S. Marshal obtained a warrant for Shelby's arrest and

conducted an area-wide manhunt that led them to defendant's

house. The marshal sought and obtained authorization from the

issuing magistrate to serve the search warrant at night and to do

so without compliance with the knock-and-announce requirement,

based on Shelby's demonstrated dangerousness.

Special “SERT” and “SWAT” teams of state and county officers

surrounded the house. From the front of the residence, Oregon

State Police officers shouted their identity and purpose to the

ecsupante via bullhorns and ordered them to come outside.

Clackamas County Sheriff's officers went to the attached garage,

shouted “Sheriff--Search Warrant," and broke a garage window.

(The plan was to secure the garage first because officers had

information that defendant kept drugs and guns there.) Defendant

responded by firing at the officers from the garage, striking one

in the face, causing them to return fire and force defendant from

the building.

After advice and waiver of rights, defendant admitted he had

fired at the officers, that he owned the gun he used as well as

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

Special Agent George Kim used that information, along with an

officer's observation of a gun inside the house, to obtain a

second federal search warrant (attached as Exhibit A). It

permitted agents to reenter the house later the same day to

Page 2 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

retrieve that gun and a second one hidden in a box as defendant

had described.

A thorough search of the entire premises failed to turn up

the fugitive Shelby. When Kim showed defendant and his young son

a picture of Shelby, they both confirmed he had been at the

location a few days earlier.

II. DISCUSSION

Defendant seeks suppression of the firearms on three

grounds: (1) the alleged failure of the first search warrant's

affidavit to establish probable cause that Shelby was in

defendant 's house; (2) failure to comply with the knock-and-

announce requirements of 18 U.S.C. § 3109, and (3) improper

execution of the warrant in violation of the Fourth Amendment.

A. The Probable Cause Issue

The law has long recognized a preference for warranted

rather than warrantless searches, and thus the magistrate's

determination of probable cause is paid great deference by

reviewing courts. Spinelli v. United States, 393 U.S. 410, 419

(1969); United States v. Ventresca, 380 U.S. 102, 109 (1965).

Affidavits are to receive a reading based on reason and common

sense, without the application of a hypertechnical standard of

review.

- « « [T)he Fourth Amendment's commands, like all

constitutional requirements, are practical and not

abstract. If the teachings of the Court's cases are to

be followed and the constitutional policy served,

affidavits for search warrants must be tested and

interpreted in a commonsense and realistic fashion.

They are normally drafted by nonlawyers in the midst

Page 3 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

and haste of criminal investigation. Technical

requirements of elaborate specificity once exacted

under common law pleadings have no place in this area.

A grudging or negative attitude toward warrants will

tend to discourage police officers from submitting

their evidence to a judicial officer before acting.

Id., 380 U.S. at 108.

According to Illinois v. Gates, 402 U.S. 213, 236 (1983),

after-the-fact scrutiny by courts of the sufficiency of an

affidavit should not take the form of de novo review. Rather,

the duty of a reviewing court is simply to ensure that the

magistrate had a “substantial basis" for the probable cause

finding. Id. (quoting Jones v. United States, 362 U.S. 257, 271

(1960)); United States v. Di Cesare, 766 F.2d 890, 896 (9th Cir.

1985). Probable cause does not demand a showing that the belief

be correct or more likely true than false. United States v.

Murray, 751 F.2d 1528, 1532 (9th Cir. 1985). A practical, non-

technical probability that contraband or other criminal evidence

(or, in this case, the fugitive Shelby) will be found in a

particular place is all that is required. Texas v. Brown, 460

U.S. 730 (1983); United States v. Seybold, 726 F.2d 502, 503-504

(9th Cir. 1984).

Under these standards, the search warrant affidavit

contained more than adequate probable cause to believe Alan

Lawrence Shelby was present in defendant's property, including

inside his house, on November 5. A confidential, reliable

informant told SA Kim that he had seen a man named “Alan” at the

residence who made the approximate statement, "I had to knock out

Page 4 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

a guard.” The informant made the connection between “Alan” and

Shelby when he read an article about the escape. Kim already

considered the informant reliable based on earlier correct

information he had provided, including facts that had led to the

arrest of another fugitive felon.

Kim drove the informant near the house, and they saw a man

they believed to be Shelby washing a car outside defendant's

house. Kim found the man to be “very similar” to a photograph of

Shelby, and the informant said he was the same man he had

previously seen at the residence (who was named "Alan" and said,

in effect, he had had to “knock out a guard"). Kim was close

enough to see what “Alan” was wearing and that he was “clean

cut.”

Deputy U.S. Marshal Wayne Kauffmann, the affiant for the

search warrant, drove by the residence as well. In addition to

viewing the house and numerous outbuildings on the 10-acre

parcel, Kauffmann saw a man resembling “Alan“ come out of the

house, but because of the distance he could not make a positive

identification. Like Kim, however, Kauffmann was close enough to

make out the man's clothing and "clean cut" appearance.

Viewed in a common-sense and realistic fashion under the

totality of the circumstances, the affidavit established a

“substantial basis" for the magistrate to find that Alan Lawrence

Shelby probably would be found in defendant's house. The

reliable informant's first-hand information about "Alan," who

said, in effect, that he had knocked out a guard, coupled with

Page 5 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

ait a ae

—

the corroborative observations of Kim and Kauffmann, persuasively

established Shelby's presence at the location shortly before the

warrant issued. The magistrate reasonably inferred from the

facts that Shelby likely was staying there, so he would be found

in the residence itself.

Defendant's argument against probable cause is the same

timeworn, hypertechnical approach to search warrant analysis that

federal courts have uniformly rejected. To posit, as defendant

does, that the remark about having to “knock out a guard” might

refer to playing touch football is directly contrary to the

requirement that affidavits be interpreted in a commonsense and

realistic fashion. The same is true of his criticisms of the

affidavit for not listing "Alan's" identifying characteristics

and not establishing his identity with a higher degree of

certainty. Probable cause does not demand certainty or

correctness, only a “substantial basis for belief." That

standard was more than adequately met here, and this court should

not disturb the magistrate's finding.

The evidence, however, is admissible irrespective of whether

probable cause supported the warrant. Under the “good faith"

rule of United States v. Leon, 468 U.S. 897 (1984), and

Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Fourth

Amendment exclusionary rule is inapplicable when officers have

acted in reasonable reliance on a judicially issued warrant.

There are only four circumstances under which the good faith

exception does not apply, and none of those circumstances is

Page 6 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

present here: (1) if the warrant is based on a “bare bones"

affidavit "so lacking in evidence of probable cause as to render

official belief in its existence entirely unreasonable"; (2) if

the warrant is based upon deliberate or reckless material

misrepresentations by the affiant; (3) if the issuing magistrate

has wholly abandoned the required neutral and detached judicial

role; or (4) if the warrant's particularization of the place to

be searched or the items to be seized is "so facially

deficient .. . that the executing officers cannot reasonably

presume it to be valid." Leon, 468 U.S. at 923; see United

States v. Michaelian, 803 F.2d 1043, 1046 (9th Cir. 1986).

Defendant has not alleged, and cannot prove, any of these

factors.

B. The Knock-and-Announce Issue

Officers serving a search warrant at a house ordinarily must

announce the authority under which they are acting and the

purpose of the call. If they are refused admittance to the

premises after the announcement, they may enter forcibly.

18 U.S.C. § 3109; United States v. Woodring, 444 F.2d 749

(9th Cir. 1971). Courts relax these requirements, however, when

exigent circumstances make observance of the statute

inappropriate. See United States v. Turner, 926 F.2d 883, 886-87

(9th Cir.) cert. denied, 502 U.S. 830 (1991). Here the officers

announced their identity and purpose but, for safety reasons,

broke the garage window before waiting for the occupants to

respond.

Page 7 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

The most recent case on the subject in the Ninth Circuit is

United States v. Becker, 23 F.3d 1537, 1541 (9th Cir. 1994),

where the court held that "mere unspecific fears" about peril to

officers does not justify relaxation of the rule. Becker

discussed a two-tiered approach to exigency. Citing United

States v. McConney, 728 F.2d 1195, 1206 (9th Cir. 1984)

(en banc), the court stated that “even mild exigency, like

knowledge that a person is dangerous, can justify immediate entry

where that can be done without any physical destruction of

property." Becker, 23 F.3d at 1540. See also United States v.

Arias, 923 F.2d 1387, 1391 (9th Cir. 1991). To justify physical

destruction of property (as occurred here), "(mjore specific

inferences of exigency are necessary." Becker, 23 F.3d at 1541

(quoting McConney, 728 F.2d at 1206).

Ninth Circuit decisions have demonstrated the types of

circumstances that do not justify forced entry. In United States

v. Mendonsa, 989 F.2d 366, 370-71 (9th Cir. 1993), there was

insufficient exigency based merely on the occupant's prior armed

robbery conviction, a little noise inside the house, and the

“inherently dangerous job of arresting drug dealers." Officers

in United States v. Moreno, 701 F.2d 815, 817-18 (9th Cir. 1983),

vacated on other grounds, 469 U.S. 913 (1984), feared destruction

of evidence just because there was “always” a danger in drug

cases. That was not an adequate reason for forced entry, the

court held. Although officers in United States v. Fluker, 543

F.2d 709, 717 (9th Cir. 1976), believed an occupant owned a gun

Page 8 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

and there was a general fear that narcotics might be destroyed,

there was insufficient exigency. Finally, in Becker, there was

no exigency based on a generalized fear that the homeowner might

be dangerous and that a methamphetamine laboratory might be on

the premises.

The highly specific facts indicating dangerousness in the

present case stand in sharp contrast to the "generalized fears"

outlined in the above decisions. As set forth in detail in the

search warrant affidavit, fugitive Alan Lawrence Shelby had a

history of escapes and assaultive behavior. A few days earlier,

he had escaped from a deputy sheriff by slipping out of

nentuatie. otrikine the deputy and knocking him down. Shelby was

serving long federal sentences for manufacturing methamphetamine

and use of a firearm during a crime, concurrently with a state

sentence for armed robbery at the Oregon State Penitentiary.

Shelby had accurately predicated he would escape from a transport

van if given the opportunity and vowed "not [to] do federal

time."

In 1991 Shelby struck a corrections officer in the face and

kicked out a jail door. While fleeing the jail, he assaulted a

woman, stole her vehicle, and then rammed a police vehicle.

While awaiting trial on narcotics and weapons charges in Eugene,

Shelby attempted a jailbreak by constructing a rope from torn bed

sheets and breaking a window.

He had threatened to kill witnesses and police officers

associated with his incarceration. Also, Shelby had used a

Page 9 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

hammer to brutally torture people. A major methamphetamine

manufacturer, he had access to large caches of weapons. Although

not detailed in the affidavit, the officers also knew Shelby's

long criminal record included several convictions for armed

robbery.

For these specific and detailed reasons, the officers

considered Shelby to be an extreme danger to their safety. There

was every reason to believe he would not submit peaceably to

their authority but would, as usual, react violently. "Armed and

dangerous" seriously understates his status and the peril faced

by law enforcement officers in recapturing him. Also, the

aetiiawe had infereekion that defendant sold drugs and kept drugs

and guns in the garage, which his later violent reaction

confirmed. The officers thus had a highly persuasive basis for

non-compliance with the knock-and-announce rule.

In addition to his argument under 18 U.S.C. § 3109,

defendant contends the officer's actions were unreasonable under

the Fourth Amendment. There is no authority for the proposition

that the federal constitution provides broader protection or a

stricter knock-and-announce rule than that of § 3109. In fact,

the law may be the reverse. See Ker v. California, 374 U.S. 23,

38-41 (1963) (reasonableness standard of Fourth Amendment, rather

than the federal statute, governs how state officers enter a

suspect's home); United States v. Bustamante-Gamez, 488 F.2d 4, 9

(9th Cir. 1973) (“to some extent," the requirements of § 3109

“have been incorporated into the Fourth Amendment"), cert.

Page 10 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

denied, 416 U.S. 970 (1974). At any rate, the same demonstrated

exigencies that sufficed to excuse § 3109 compliance also met the

Fourth Amendment reasonableness test.

Finally, the magistrate-judge's endorsement of a “no-knock"

clause in the warrant, while not explicitly authorized by

statute, in no way illegitimized the officers' conduct. If

anything, the endorsement manifested their good faith in

submitting the matter to judicial analysis prior to the warrant's

execution. It certainly did not affect the legality and

constitutionally of the entry, which passes muster under the

objective exigency test as discussed above.

Cc. Jnapplicability of the Exclusionary Rule

The government's primary position is that the search warrant

was a lawful one based on probable cause and that a specific

showing of exigency excused compliance with the knock-and-

announce rule. Even assuming, arguendo, that either of these

positions is incorrect, it does not follow that the court must

exclude evidence of the two firearms forming the basis for

defendant's indictment. Rather, defendant's intervening act of

shooting from his house renders the exclusionary rule

inapplicable to the firearms since they were not "fruit of the

poisonous tree."

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963), the

seminal case in the field, described the limitations of the

exclusionary rule:

We need not hold that all evidence is “fruit of the

Page 11 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

poisonous tree" simply because it would not have come

to light but for the illegal actions of the police.

Rather, the more apt question in such a case is

whether, granting establishment of the primary

illegality, the evidence to which instant objection is

made was come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be

purged of the primary taint.

There is a body of law holding that, when a person subjected

to an allegedly illegal search or arrest responds with force

against the officers, resulting evidence is not fruit of the

poisonous tree. See 4 La Fave, Search and Seizure: A Treatise on

the Fourth Amendment § 11.4(j) (2d ed. 1987 and 1994 Supp.).

Here, the discovery and ultimate seizure of the firearms (under a

second search warrant) resulted from defendant's use of force

against the officers, not from any exploitation of what defendant

asserts was illegal activity.

Several federal cases illustrate this point. In United

States v. King, 724 F.2d 253 (lst Cir. 1984), the court assumed,

without deciding, that the officers committed some illegality in

attempting to search defendant, but he responded by shooting at

them. “We believe the shooting was an independent intervening

act which purged the taint of the prior illegality," the court

stated. Id., 724 F.2d at 256. King cited favorably United

States v. Bailey, 691 F.2d 1009 (llth Cir. 1982), cert. denied,

461 U.S. 933 (1983), and United States v. Nooks, 446 F.2d 1283

(Sth Cir.), cert. denied, 404 U.S. 945 (1971), where the courts

admitted evidence discovered when an illegal stop was interrupted

by a defendant's flight. "In each case the search was in

Page 12 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

progress when flight occurred. In each case the court held that

the tiight constituted an intervening act which provided probable

cause for the ultimate search." King, 724 F.2d at 256.

Unit Stat Vv. Waupek r, 973 F.2d 1533 (10th Cir. 1992),

reachec the same result for a different reason. Defendant in

that case pointed a gun at the police after they had illegally

enterec his premises. The court held:

We conclude that Mr. Waupekenay did not have a

legitimate reasonable expectation of privacy when he

initiated criminal activity--assault--in the presence

of the police officers within the trailer. Once Mr.

wWaupekeney was aware that the police officers were

present in his home and were observing him, he could

mot have had a reasonable expectation of privacy for

my actions initiated subsequently to that time in

ir presence. He obviously intended for the police

see him aim a semi-automatic weapon at them. Thus

coulc not have had a legitimate expectation of

ivacy in that action [citation omitted).

* * * *

Our decision is consistent with the holding of

many other courts, state and federal, that have

considered situations in which a defendant seeks to

suppress evidence relating to his or her violence or

threatened violence toward police officers subsequent

to an unlawful search or seizure or a warrantless

entry. In assault, resisting arrest, disorderly

conduct, and weapons related trials, these courts have

uniformly rejected motions to suppress arising from

skirmishes comparable to the one at issue in the

instant case... . [citations omitted).

ig., 973 F.2d at 1537. In addition to King and Nooks, the court

in Waupekenay cited 13 other state and federal cases supporting

its holding in similar contexts.

Among the many state court opinions on this issue, State v.

Villarreal], 152 Ill. 2d 368, 178 Ill. Dec. 400, 604 N.E. 2d 923

Page 13 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

(1992), deserves mention. The Illinois Supreme Court held that

defendants were precluded from resisting police officers’ attempt

to enter a house to arrest a third party, regardless of whether

the police actions would have been legal. The exclusionary rule

cannot be applied to suppress actions directed against the

police, even when the police illegally enter a defendant's hone

to arrest another person, the court held. Id., 604 N.E. 24 at

927.

Here, defendant responded to the officers by shooting at

them from his home. His intervening action created an

independent basis for what followed, namely, his removal from the

nett, his questioning (with admissions of gun ownership and

felon status), and seizure of the firearms pursuant to a second

search warrant. Even if there were arguable illegality in the

initial police conduct, all the intervening events occasioned by

defendant's armed resistance (including the seizure of the guns)

are not subject to the exclusionary rule.

III. Conclusion

For the above reasons, the court should deny defendant's

motion to suppress.

DATED this dd’ day of February, 1995.

Respectfully submitted,

KRISTINE OLSON ROGERS

United States Atterney

sistant Unit States Attorney

Page 14 UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE

jun 13 9% ,

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF OREGON

B 3 UNITED STATES OF AMERICA,

4 Plaintiff,

Cr. No. 94-379-HA

5 versus April 25, 1995

6 HERNAN RAMIREZ, Portland, Oregon

7 Defendant.

i) Transcript of Motion to Suppress

. BEFORE: THE HONORABLE ANCER L. HAGGERTY, UNITED STATES

12 DISTRICT COURT JUDGE

s 13

14 APPEARANCES OF COUNSEL

15 For the Plaintiff: AUSA Stephen Peifer

16 For the Defendant: Michael Levine

20 Reported by: Liz Meacham

620 S.W. Main Street, #225

21 Portland, Oregon 97205

(503) 326-3113

Stenographically reported, computer-aided transcription

~—

Aprii 25, 1995

PROCEEDINGS

MR. PEIFER: Good morning, Your Honor. This is

United States versus Hernan Ramirez, Cr. 94-379-HA.

Defendant is now present before the Court with counsel,

Michael Levine.

Your Honor, this is the time set for a

hearing on defendant's motion to suppress. The parties

have submitted a stipulation of facts regarding the

knock-and-announce issue, both the statutory and

constitutional aspects of it. We thought it would be

better to do that than to present lengthy testimony,

considering the number of people involved and the amount of

time it would take for the Court.

THE COURT: I've read the parties' stipulation of

facts. I've read the motion to suppress with the

accompanying memorandum in support, as well as the United

States' memorandum in opposition to the motion to suppress.

And I believe I have the reply from Mr. Levine, as well,

and I've read through those.

And I believe the Court understands the

issue as whether, by the officer's breaking of the window,

the destruction of property, is that a sufficient basis to

then say that the government has not complied with the

knock and announce?

MR. LEVINE: Partially, Your Honor. Not quite.

Going to that, the manner of execution -- let me just back

up for a moment and state, as the Court is aware, there are

really two motions before the Court, in a sense. One is

that there is insufficient --

THE COURT: Probable cause for Mr. Shelby.

MR. LEVINE: Probable cause to enter to pursue

Mr. Shelby. And then the second issue, which the Court --

let's focus on that since the Court has inquired on that.

The breaking and the entering being

simultaneous, if you will, with the announcement -- that's

the stipulation in essence -- that, under United States

versus Becker -- there's no question that that on its face

does not comply with a knock-and-announce statute.

What that does, now, is require the

government to show exigent circumstances. And with the

break -- it's kind of a shifting line, according to the

law, at least as I read it. When there's a breaking of

property or a destruction of property, as there was in this

case, the Court says there has to be a higher -- a more

specific detailed accounting of exigent circumstances.

I might just point out Becker, I think, is

the most recent case, and the leading case now in the

circuit. But it points out that the mere incantation by

the government of the phrase “exigent circumstances" -- and

I'm quoting here, “does not dissolve -- does not dissolve

the shield that our law provides."

I mean, there's always some degree of

exigency any time law enforcement officers are looking for

anybody. That can't justify the breaking and entering into

a home.

So the question is, in this specific case is

the specific articulation of exigency in this particular

case sufficient, as a matter of law, to justify a -- what

amounts to a wholesale breaking and entering into the

property and particularly into the garage, which is where

the -- which is part of the property? It's an attached

garage.

For the Court's convenience, I've simply

blown up, with the government's permission -- we've blown

up the diagram, the exhibit. It's identical. But the

entry occurs here at the garage window. But this is a

standard attached garage to many residences, a door here

into the garage. So, for all intents and purposes, this is

the residence.

I think that -- I think, clearly, this was

inappropriate. We have here a Saturday morning in the

early morning hours, when agents know or must know, have to

know, that the residents will be asleep. We have a husband

and wife and a three-year-old child asleep in the master

bedroom. And we have what ensues, exactly what one would

expect to ensue when agents don't comply with the law. We

have what almost was a true tragedy.

But I think it was best expressed by Sam

Irvine in my motion. I quoted from Sam Irvine when he was

talking about why the Congress abolished the no knock. The

agents talk about exigent circumstances and fear for their

safety as justifying a breaking with a simultaneous

announcement. That's what they claim in this case.

But what does Sam Irvine say? "I know of no

provision of law which puts officers of the law in more

jeopardy of life and limb than a provision which undertakes

to authorize no-knock searches of the homes of our

citizens. When someone" -- and this is the key statement.

"When someone attempts to" -- and I'm quoting now from my

motion at page 12. “When someone attempts to break into

the dwelling hcuse 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's a

burglar. He is going to resist to the utmost, even to the

taking of lives, the unwarranted intrusion into his house

by someone who attempts to enter without notice, without

identifying himself, without revealing his status as an

officer of the law, and who attempts to enter by force like

common burglars. It is ridiculous to say that breaking in

without notice serves as a protection for the police

officer. The contrary is true."

Now, the courts have held that -- while this

statement refers specifically to breaking without any

notice, the courts have essentially held -- at least Becker

and “sendonza and the other cases -- that simultaneous entry

and announcement is the same evil. There's no difference,

because it's -- if a home owner hears breaking and someone

shouting, it's impossible to make out, as it was in this

case, what exactly is being shouted, particularly at 6

o'clock in the morning on a Saturday morning.

Your reaction is -- if anyone's ever

listened to bullhorns or tried to listen to bullhorns,

they're virtually unintelligible most of the time. Even in

the stipulated facts, one of the officers, who's right by

the garage, he couldn't hear the bullhorning that was going

on in the front. And the stipulation -- on the stipulation

of facts, this is all happening simultaneously, the

bullhorning in front, the officers shouting as they're

breaking the garage window, "Search war int, search

warrant."

The point is you should do this in advance

unless -- unless the government can establish and prove

that circumstances were such -- they were of such an

emergency nature, of such an exigent circumstances that the

agent should not have to announce at all; they can simply

break in, if you will, or break in and simultaneously

announce. No doubt there are circumstances like that, but

this case does not rise to that.

Now, the government says, "We have

information that Shelby is an escape risk." And we don't

dispute that. “We have information that Shelby knocked out

a guard." And we don't dispute that. We've stipulated to

that. “We have information that he has said he did not

want to do federal time." We've stipulated to that.

Still, when you take all that together, that

does not mean that 40 or 50 agents have to break into a

residence to arrest Mr. Shelby. If anything, if he is as

dangerous and -- if he is as dangerous as they claim, it's

the exact opposite. They're inviting themselves to be shot

to death, it seems to me, by doing that.

And I don't want to -- I'm not

second-guessing how police operate. But we have only to

look at recent traumatic events all over the country, Your

Honor, where there's been an excess, I'm sorry to say, of

inappropriate entering by police officers, these task

force ~~ inappropriate, causing terrible destruction. And

the problem can be avoided by siuply following

knock~and~-announce principles.

We have no information that Shelby has ever

shot at a federal -- has ever shot at any police officer,

much less at a federal police officer. Nothing, not a

shred of evidence to that effect. No information that

Shelby had a weapon with him, no information that Shelby,

for that matter -- that's the first part of my -- first

part of my motion, that -- was spending the night in the

residence.

Now, in Mendonza, in Becker they looked to

the fact that the evidence -- that the person they sought

wasn't in the residence or the evidence they sought wasn't

in the residence as sort of a vindication of the fact that

there was no exigent circumstances. And I'm going to do

that, too. Shelby wasn't in the residence.

Now, in one sense that's irrelevant, because

you're looking at the state of the mind before. But it

also corroborates the fact that officers are wrong.

They're wrong. And we have -- with respect to drugs, we

have an informant and firearms. We have an informant

saying, "There's oanneet,* -- and that's the word in the

stipulation, "There's supposed to be firearms in the

garage." That -- that is not, to me, a statement that

ought to provide the Court with a sense of there are

firearms in the garage which justify exigent circumstances,

and there might be drugs. I forget the exact -- "There

possibly are drugs in the garage," and there were supposed

to be firearms. That is not a exigent -- that does not

give rise to exigent circumstances.

The proper thing for the police to have done

in this case would have been surround the residence. We

had plenty of officers, plenty of fire power, as we can see

by the fuselage (sic) that was -- that Mr. Ramirez was met

with. Surround the residence, announce on the bullhorn

Simply, as they did, but wait and have the residents have a

chance to get out of bed and answer the door, find out what

is happening, and come out with their hands up.

THE COURT: Okay. Even assuming everything you

say is correct up to this point --

MR. LEVINE: Yes.

THE COURT: -- the stipulation does not, as I see

it, take away the good faith belief that the officers

thought they were executing a valid warrant, under Leon.

So if you look at that as an issue, there was nothing

seized as part of this initial entry. Nothing was seized.

The gun was left there. They did, in fact, get one

statement from Mr. Ramirez to the fact that he had the gun

and that he was a prior felon.

MR. LEVINE: Yes.

THE COURT: They then come back, apply for, and

receive additional search warrants.

MR. LEVINE: Yes.

THE COURT: Go back and actually seize the gun

that you're seeking to suppress.

MR. LEVINE: Yes.

THE COURT: That's all you're seeking to

suppress, is that gun.

MR. LEVINE: That's right, the firearn.

THE COURT: So if the officers in good faith were

executing a valid warrant for Mr. Shelby, how do you then

conclude that the subsequent seizure of the gun was

unreasonable?

MR. LEVINE: All right. There are two parts to

your argument. First of all, with respect to good faith,

there's nothing in the stipulation respecting the officers'

state of mind. There's no -- there's no concession in

here, and I don't think there's any fact -- I -- there's

certainly nothing in here wherein the defense concedes the

good faith, and there's nothing in here respecting

officers' state of mind.

The only thing that's in bere is what the

officers learned or heard or was told to them. That's a

separate inquiry. There's nothing in the stipulation that

goes to good faith.

Second, if there -- good faith. Even if the

Court were to find good faith, and the Court can't find it

from this stipulation, there's just no facts in that

regard, from my judgment.

THE COURT: But there was a warrant that was

issued by the Court.

MR. LEVINE: Yes. But the burden -- the burden

of proving good faith is a burden on the government,

according to the United States versus McKelly. The Court

will have to take -- the Court will have -- if the

government wants to proceed with a good faith argument,

which it did in its motion, I believe that the -- we'll

have to take evidence on that.

We may have -- unless Mr. Peifer has another

suggestion. I don't -- it was not covered -- certainly is

not covered in this stipulation. The law of good faith is

discussed in the motions.

But, moving to the law, it's my position

that the good faith -- good -- one of the exceptions in

Leon to the good faith principle is where the affidavit

lacks the indicia -- is lacking the indicia, even minimal

indicia, of probable cause.

And I have submitted, for the same reasons

that I've just argued, that there's simply no probable

cause, even the indicia of probable cause, to believe that

Mr. Shelby was spending the night in this residence on

November 4th and 5th, midnight being -- bringing it over to

ee ee

the 5th. There was no probable cause that Mr. Shelby was

in this residence, which brings me to the first motion.

What is the probable cause to believe that

Shelby is actually in this residence on the night of

November the 5th? What do they have? They have the day --

on November the 3rd, an informant calls up the marshals and

says, "I was introduced to a man named Allen." Okay. “And

I overheard approximately -- this Allen say approximately,

‘I had to knock out a guard.'"

That's their evidence of probable cause,

that Allen Shelby, the escaped fugitive, who said that on

Thursday, is now sleeping in this house on Friday.

Now, of course, they have more. The agent

comes up, Agent Kim, comes up the next day, November the

4th. And they look from away, a thousand yards away,

apparently -- apparently. They don't say. There's nothing

in the stipulation -- whether it's through binoculars or

not.

But they look, and they see someone who's

very similar, they say, to -- very similar to the picture

of Ailen Shelby, washing a car. Washing a car. It's not

exactly in front of the residence. We don't know exactly

where. Washing a car. I'm sorry. I think it's by the

shop area is where they see him washing a car right here by

ra hews o-

Now, when -- where does one make the leap of

logic that if someone is washing a car during the day, that

he is, therefore, spending the night in the home owner's

residence? That defies common sense. It defies logic.

There are all kinds of people that wash cars. There are

guests, there are friends, there are people. This is a

shop area. What is the evidence that he's in the

residence? None. That he's spending the night in this

residence? None.

If we allow the officers to make that -- to

make that leap, then anybody's house is subject to search

because someone was seen outside washing a car.

Now, I believe at one point somewhere in the

affidavit there's a statement that Shelby was seen walking

out -- to be fair, walking out the front door of the house.

But that's during the day. People go into a house to get

water, to work. All kinds of workmen do that all the time.

Even assuming this is Mr. Shelby, assuming this is

certainly Mr. Shelby, I would argue there's no probable

cause to believe that he's spending the night.

The agents have to do a little more work, it

seems to me, before they could go to a magistrate and say,

“We've seen Shelby out here. He's sleeping in the

residence."

And with respect to whether it is Shelby,

even, we have a statement that he looks very similar to the

picture. Well, why does very similar-looking to a picture

mean that that's probably him, particularly when you look

at what isn't in the affidavit?

We know the description of Mr. Shelby. We

know the specific, detailed physical description of

Mr. Shelby. It's right in the affidavit. It's right on

the warrant. He's 5 foot 9, he's got blond hair, he's

got blue eyes. Is there any statement in the affidavit

that the man they saw was 5 foot 9, blond hair, blue eyes?

No.

Now, how do you normally describe people?

That's the first thing you do, is give a physical

description. And, as I argue in my motion, Your Honor,

agents properly draft affidavits to bring the strongest

light -- to put the evidence in the strongest light to the

magistrate. That's understandable. They want to persuade

a magistrate that there's probable cause. They are going

to put in every shred of evidence that will persuade this

magistrate that this is the man.

The fact that they didn't put in the

description, I submit, is an inference you should draw

against the government that the person they saw did not fit

the description of Allen Shelby. He was not 5 foot 9.

Because, Your Honor, if they put in, “We saw a man who was

6 foot 6," the magistrate's going to go, "Well, this isn't

Allen Shelby." So they didn't put that in.

It's very -- it's easy to say -- and people

look alike, very similar. What does that mean? But

without the physical description, it seems to me that their

case for probable cause to believe that Allen Shelby was on

the residence -- was at this residence is deeply

undermined.

But there's more. They make a -- they make

a point in the affidavit twice, saying, "Mr. Allen Shelby

was clean cut." The person they saw -- the person they saw

was clean cut and was wearing blue overalls or a blue

jumpsuit -- a blue jumpsuit. That's the person they saw.

But the description of Allen Shelby, when

last seen, says nothing about his being clean cut, says

nothing about his wearing a blue jumpsuit or overalls. The

only description was the 5 foot 9, blue eyes, blond hair,

which they repeated, and there's nothing about that with

respect to the individual here.

So, Your Honor, I don't think the good faith

argument can succeed on two grounds. I don't think there's

a good faith belief that the person is Allen Shelby, number

one. But even if he is, even you can say there's a good

faith belief that that person was Allen Shelby, there's no

good faith belief that that Allen Shelby was spending the

‘vo

night, November the 5th, in this residence, not a shred of

evidence. And it's not fairly inferable from any of the

evidence.

And it is true that the agents got the -- a

second warrant, but that's exactly what happened in Becker.

In Becker there was an original warrant that was issued,

ang then the agents went and retrieved a second warrant

based on what they saw. So the fact that there are two

warrants is really immaterial.

The question is, is what's going into the

second warrant a fruit of an illegal first warrant, either

an illegal first warrant that's been issued or an illegal

first warrant that's been executed? I've argued that it's

illegal for both reasons independently. But if the Court

finds that, of course, either that the issuance of the

first warrant was unlawful or that the execution of the

first warrant was unlawful, then the fruits of that warrant

are suppressible and cannot be used as facts to provide

probable cause for issuance of the second warrant.

Now, the government made some -- made an

argument that, while the shooting -- they admit that the

shooting came in response to the first warrant. But then

they say, once the -- once Mr. Ramirez shot, that that-

provided -- that that was an intervening -- an intervening

act, which in itself provides -- if I understand the

argument, provides probable cause.

Well, the cases they cite don't stand for

that. They do cite various cases where there are

intervening acts, but none of those cases stand for the

proposition that where a home owner, in defense of his wife

and his child, shoots what he perceives to be a marauding

band breaking into his home, that that justifies the

marauding band to later get a second warrant based on the

gun shot. That would defeat the whole purpose of the

Fourth Amendment, it seems to me.

The agents can't say, "Well, look what

happened," and use that as grounds for going and getting a

warrant. They created, if you will, their own exigency.

And I'd be happy to answer any other

questions the Court has.

THE COURT: Let's hear from Mr. Peifer.

MR. PEIFER: Yes, Your Honor. First, on the

issue of probable cause, the Court has to look at the

affidavit from a common sense, nontechnical standpoint,

giving deference to the magistrate in this case, Judge

Ashmanskas, who had the opportunity to review it and draw

reasonable inferences from it. And the standard is a

substantial basis to believe that Mr. Shelby was there, not

proof beyond a reasonable doubt, not something that we

would argue to a jury.

There was ample support for probable cause

in this case. Mr. Levine sort of brushes aside the fact

that this confidential, reliable informant stated that

someone by the name of Allen stated in his presence, while

on Mr. Ramirez's property, that he had to knock out a

guarc. It isn't just the identification of the -- the

visible identification of Mr. Shelby. It's the fact that

he identified himself as Allen and said he had to knock out

@ guard, which is the -- one of the most -- the operative

point involved in his -- his escape from custody just a few

Gays before that.

The informant and Agent Kim saw a man that

they identified as Mr. Shelby from a distance, that they

seid -- according to the affidavit, they believed it was

Mr. Shelby, and they said it was very similar to what they

knew Mr. Shelby to look like. Also, Deputy U.S. Marshal

Kaufman, from a distance, drove by and saw a man resembling

Shelby come out of the house -- come out of the house.

So we have the issue, first, of whether it’

is Mr. Shelby. And I would submit to the Court there's

very strong evidence to believe that it was Mr. Shelby,

primarily based upon his own statements as well as the

identification by the agent and the confidential, reliable

informant.

And, secondly, would he be there at the

premises? Now, we have somebody who's there once before

when the informant was in his presence, heard him speak,

and then he's still there when the agent drives by with the

informant, and he's still there when the Deputy U.S.

Marshal drives by. So we have a period of time by which

the Court could infer that it wasn't just a quick

in-and-out visit. It was somebody who was there at the

premises for a period of time.

On the good faith exception -- and the Court

doesn't have to reach the good faith exception if you find

probable cause. And I would submit that there's strong

evidence of probable cause here. But if you do need to

reach the good faith issue, all four of the elements of the

burden that the government has to prove have been met here,

to exclude the exceptions to the good faith exception.

First of all, this was not a bare bones

affidavit. The Court, I think, knows, from years of

experience, what a bare bones affidavit would look like,

and this simply isn't one. It has a substantial basis to

believe Shelby was there. There are no misrepresentations

in this affidavit. If there had been misrepresentations,

Mr. Ramirez could have filed his motion to contradict the

affidavit. There's been no claim that the confidential,

reliable informant should not be believed, and there's been

no evidence and no claim made by anybody that anything in

the affidavit is not worthy of belief.

Secondly, there's no violation of the

requirement for a neutral and detached magistrate. I think

Mr. Levine is stretching it when he says that the

government has to present live testimony by which the Court

has to conclude that these elements are not present here.

There's no -- there's absolutely no evidence on the face of

this affidavit and the warrant to conclude that there was a

violation of a neutral and detached magistrate requirement.

And, fourth, the particularization

requirement was met. All you have to do is look at it to

see that it's very well described.

Now, the issue of knock and announce.

Mr. Levine says that this is a situation where the officers

created their own exigency, and that's really a fiction in

this case. They didn't create the presence of Mr. Shelby.

They didn't create Mr. Shelby's long history of violence,

his history of escape, his history of armed robbery,

weapons possession, all the things that I'll itemize in a

moment. They didn't create those things. They didn't

create the information that, as it turned out, there was a

firearm in that garage, because it was fired by

Mr. Ramirez. They didn't create that out of whole cloth.

And they certainly didn't create their exigency by breaking

that window simultaneously with their announcement t! at --

the exigency preexisted the entry by the officers.

The Becker case is very useful for the

Court, not only in stating the standard, which in this case

must be specific inferences of exigency to justify the

breaking, but Becker's also useful to show you what isn't

good enough to show specific inferences of exigency,

because it not only discusses its own facts in Becker but

other cases. And, by and large, those cases have to do

with just a generalized fear that, because of the nature of

a person's criminal activity, because they happen to be

involved in drugs, or they happen to have been convicted of

something in the past, that alone without any specific

itemization of what it is, does not rise to the level of

exigency for purposes of knock and -- of noncompliance with

knock and announce.

Now, here we had very specific information

regarding Mr. Shelby. In 1991 he struck a corrections

officer in the face. He kicked out a jail door. He

assaulted a woman while escaping. He stole her car, and he

rammed a police vehicle. That was in °91.

In 1992, when he was being held for the

federal drug charge in Eugene awaiting trial, he attempted

a jail break with a broken window and rope being made from

some bed sheets.

In 1994, which is the incident which led to

his being a fugitive in this particular case, he struck a

Deputy Sheriff while he was en route to testify in

Tillamook County, Oregon. He was able to Slip out of his

handcuffs, struck the deputy, and fled. So there we have

three documented cases of violent escape or attempted

escape by force involving this Mr. Shelby.

It's undisputed that he said he would not do

federal time. Here we have a person -=- not only does he

have a long history of escapes, but he's made it very clear

that he's not going to federal prison.

The affidavit also says that he threatened

to kill witnesses and police officers associated with his

incarceration, again, consistent with his nature and his

track record. He had used a hammer to torture people. He

was a major methamphetamine manufacturer, and he'd been

convicted of using a firearm in connection with that

federal drug conviction.

He also -- and the Court would expect this,

but there's specific reference here -- he had access,

through his methamphetamine connections, to a large number

of weapons. He owed a great deal of prison time on the

state and federal level. He owed 240 months on his federal

conviction out of Eugene. So there's a great incentive on

his part to follow through on his threat that he would not

do federal time.

Ee ©

And we also have the information from the

confidential informant who said, according to the

affidavit, that there was possible possession of drugs and

firearms in the garage. This explains why the officers did

what they did.

Mr. Levine would have the Court believe that

this was just stupid on the officers’ part to do this, but

actually it was a very well-reasoned, well-planned,

intelligent approach. Because if Mr. Shelby is there, the

last thing they want to do is comply to the letter with

knock and announce, knock on the door, wait awhile before

they actually enter, because that would have given

Mr. Shelby, or anybody else in the premises, time to react.

What they did was they went to that garage

window and broke it out simultaneously with the

announcement, in order to make sure that they were covered,

where they expected to find guns in the house. And that's

exactly what happened, because Mr. Ramirez fired off two

rounds from his gun as a result of that entry.

So that was a very reasonable approach on

the officers' part, and I think they would have been

derelict if they'd done it any other way. They would have

been derelict if they'd gone in and just broken down the

door, because that would have created an even worse

exigency in terms of the situation, and they would have

been even more derelict if they had -- as Mr. Levine says,

if they'd complied with the knock-and-announce requirement.

6.2 ae

The Court also has before it an alternative

argument. And the Court doesn't need to reach this, but

it's there if the Court needs it. And that's the

alternative argument that, even assuming there was a

violation of knock and announce that couldn't be excused by

some exigency, we have the intervening act of Mr. Ramirez

firing off rounds at the police or, as he characterizes it,

firing up into the ceiling to scare them off. Well, they

can hardly be expected to believe that he was simply trying

to warn them under the circumstances when one of the

deputies was hit in the eye with a piece of metal.

Under those circumstances, you have a break

in the chain which, under the law, would terminate the

application of the exclusionary rule at that point. And

that's why I cited a number of cases from a number of ;

different jurisdictions which demonstrate how this rule

applies, that whether it's an illegal search or an illegal

arrest, that when the defendant or the person being

searched, the person being arrested, reacts violently, then

the exclusionary rule doesn't apply at that point, because

that is conduct on the part of the defendant himself which

the officers not only have a right to respond to, they have

an obligation to respond to.

And here they did respond appropriately.

They went ahead and executed the warrant. They saw the gun

in the living room where Mr. Ramirez had thrown it. Then

they got another warrant. And, as the Court has referenced

that, that was a follow through on their exercise of good

faith in this case.

THE COURT: Could they have seized the gun right

then and there without the second warrant?

MR. PEIFER: I think that they could have,

because it was in plain view. It wasn't -- it was probably

an exercise of extreme caution on their part not to seize

it. But it was in plain view during the execution of the

warrant when they were looking for Mr. Shelby. They didn't

have to move anything to find it. But they did get another

warrant. And that was certainly, as the Court noted, a

further exercise of good faith on their part.

So we actually have three elements of good

faith shown in this case. We have the warrant itself, the

initial warrant, which obviously was signed by Judge

Ashmanskas under the protection of the warrant requirement.

They asked Judge Ashmanskas to authorize a no-knock entry.

Now, there is no -- and Mr. Levine is right.

There is no statutory provision for this, but they ran it

past the Court. They gave him the facts and asked for a

judicial opinion. It's not controlling, but it does show

that they were acting in good faith. They didn't just go

and do it on their own without running it past the Court.

And, thirdly, they went and got a second search warrant,

instead of, as the Court noted, simply following through on

what they had actually seen, which showed further good 4

faith.

But I want to make clear to the Court that

the good faith exception does apply here, but it's not

necessary to reach that, and it's not necessary to reach

the exclusionary rule argument either, that this is a case

where there was ample probable cause, and there was every

good reason to not comply technically with the

knock-and-announce requirement.

And on that regard, there was a technical

violation of the knock-and-announce requirement. They did

not wait after announcing before they broke and entered.

All it was was the garage window instead of the door, which

is normally what happens in a search situation. But --

we're not quarreling with that as being a violation, but

it's not the kind of egregious violation that could have

occurred in this case but didn't.

When you have 45 law enforcement officers

surrounding a house, you can imagine what they could have

done if they wanted immediately to enter, but they didn't

do that. They took a very measured, careful approach to

ee ae

the matter and complied with the law every step of the way.

Thank you.

THE COURT: Anything further, Mr. Levine?

MR. LEVINE: Yes, Your Honor. I don't think it

shows good faith to ask a magistrate for something that the

magistrate has no authority to do. The officers should

have told the magistrate, "We're asking you for authority

to enter without knocking and announcement, but there's no

statutory authority for you to make this." They didn't

tell the magistrate -- to enter that order. They didn't

tell the magistrate that. I don't see why -- how that

evidences good faith.

Second, the agents did not overhear -- the

informant did not overhear the person named Allen say, "I

had to knock out a guard." It's quite clear in the

affidavit that what the informant heard was approximately

that statement. That's in the affidavit. Now, that is a

fundamentally important word, Your Honor, because that

means, as I've argued, that the informant is not reporting

the exact words that this Allen said.

But that's critical, because the way it's

phrased here, “I had to knock out a guard," that's quite

one thing if those were the exact words spoken. But if

they were not the exact words spoken, and the word

“approximately” says those were not the exact words spoken,

what you really have here is you don't know what -- you

don't know what was suid by Allen. Was it something about

a guard or something -- did he use the word "hard," or did

he -- how was the phraseology?

The government is presenting this as if

these are the exact words and arguing that to the Court,

and that's not the case, by their own affidavit.

THE COURT: Let me ask you the same question I

asked Mr. Peifer.

MR. LEVINE: Yes.

THE COURT: Once the officers are inside and

executing a warrant for Mr. Shelby, they see the gun laying

in the living room on the floor, can they seize it?

MR. LEVINE: Well, I don't know what theory they

would seize it. It's not a crime at this point. There's

no -- it's not a crime for a person to possess a gun. They

never charged him -- they've never -- I suppose if they

were to charge him -- it's a crime for an ex-felon to

possess a gun, but there's no knowledge at this point that

he's an ex-felon. That doesn't come until they interview

Mr. Ramirez.

THE COURT: I thought at the scene he indicated

he, in fact --

MR. LEVINE: Oh, I'm sorry. Are you talking

about -- well, yes, but the timing of when they -- they

don't actually come into the house until the second

warrant. They tear gas -- all of the facts are not in the

stipulated facts, but what happens is -- correct me if I'm

wrong ~~ the -- after the -- after the shots are fired,

there's no further effort at entry. There's ultimately

more bullhorning and ultimately Mr. Ramirez's wife and his

child come out of the house.

The agents don't enter the house. They

proceed to tear gas the house for quite a lengthy period of

time, because apparently they believe that Mr. Shelby is --

might be in the house. So there's about a two-hour delay.

Though Mr. Ramirez is interviewed by Mr. Kim after he comes

out of the house and explains what happened and why he

shot, and it's that -- at that time, I believe, that Agent

Kim learns that Mr. Ramirez is a felon.

So the entry -- the entry into the house

does not occur until the second warrant. Now, the agents

may believe that there's a gun in the house, since

Mr. Ramirez fired a gun, and he also tells them that there

was a gun in the house. There's no question that they

have ~~ they have a belief at that point, right from

Mr. Ramirez and right from the fact that a gun was fired,

that there's a gun in the house. But it wasn't a question

of their going in and seeing the gun.

THE COURT: That's not the way I understood the

evidence.

MR. LEVINE: Maybe I have it wrong.

MR. PEIFER: It's in the second search warrant

affidavit, which has been incorporated into the entire

stipulation, that deputy -- or Detective Green, of the

Clackamas County Sheriff's Office, described the gun that

was found. Of course, this is before Agent Kim got the

second warrant. So that was -- that was done prior to that

time and incorporated into the search warrant.

MR. LEVINE: Well, even if -- even if -- even if

I have the series of events wrong, even if they saw --

maybe they went in initially and did a quick run-through

and saw the gun on the floor, the Court has asked me

whether they could seize it. Again -- again, I -- they

couldn't seize it because it's ex-felon in possession,

because they still don't know he's a felon unless Kim had

communicated to them that he was a felon. There's no

evidence of that.

If they were charging him with assault on an

officer, I suppose a firearm could be evidence of that

crime, and they could seize the gun as -- but there never

were any charges brought against Mr. Ramirez, and there

haven't been to this day. So I think the answer is no,

generally speaking, to the questien.

With respect to the period of time that

elapsed that Mr. Shelby was on the property -- but this --

this still adds -- still does not suggest that

Mr. Shelby -- the fact that he was seen two days on the

property does not mean that he's on the residence.

Workers, people who are working, laborers, are often on

people's property. They simply go home at night and come

back to the property during the daytime. We don't assume

that laborers are sleeping in the bedroom or in the

residence.

The firearm was not in the garage. The

firearm was in the utility -- was taken from the utility

room, which is next to the garage, but it's not in the

garage, as -~ the informant had said supposedly they were

kept in the garage. That proved not to be the case at all.

THE COURT: Well, the Court will take the matter

under advisement, and I'll issue an opinion. I don't

recall. Is there a pending trial date in this case?

MR. PEIFER: Yes, Your Honor. I don't have it.

MR. LEVINE: I don't believe there is.

MR. PEIFER: No, there is a date in May. I think

it's the third week in May.

THE COURT: It won't take us long. Thank you

very much.

(Hearing concluded)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-30158

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

HERNAN RAMIREZ,

Defendant-Appellee.

UPON APPEAL FROM THE JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

THE HONORABLE ANCER L. HAGGERTY

No. CR 94-379-HA

BRIEF OF THE PLAINTIFF-APPELLANT

KRISTINE OLSON

United States Attorney

District of Oregon

STEPHEN F. PEIFER

Assistant United States Attorney

888 S.W. Fifth Ave., Suite 1000

Portland, OR 97204-2024

Telephone: (503) 727-1000

Attorneys for Plaintiff-Appellant

STATEMENT OF THE CASE

A. Jurisdiction, Timeliness and Custody Status

The district court had jurisdiction in this criminal case by

Virtue of 18 U.S.C. § 3231, while this court's appellate

Jurisdiction arises under 18 U.S.C. § 3731, governing

interlocutory appeals by the United States.

The district court on May 4, 1995, entered an order

suppressing evidence (CR 34; ER 71).' The government filed a

timely notice of appeal on May 11, 1995, including a

certification on appeal by the United States Attorney (CR 37-38;

ER 73-74).

Defendant has been released on conditions during the

pendency of this appeal.

B. Summary of Proceedings

The grand jury indicted defendant for felon in possession of

firearms, in violation of 18 U.S.C. § 922(g)(1), based upon his

prior convictions of rape by force and violence, burglary of a

residence while armed with a firearm, and unlawful use of force

upon a peace officer (CR 10; ER 1-2). Defendant filed a motion

to suppress evidence, based on alleged lack of probable couse fer

the search warrant and non-compliance with the knock-and-announce

requirement (CR 19-20; ER 3-27). The parties submitted the

matter on written stipulated facts (CR 31; ER 51-55), memoranda

of law (CR 20, 25, 32; ER 5-27, 28-50, 56-61), and oral arguments

' “CR® refers to the Clerk's Record; "ER" refers to the

Government's Excerpt of Record; "RT" refers to the Reporter's

Transcript of Proceedings. -

(RT 2-31). In ordering suppression of evidence, the district

court denied defendant's motion on the contention that the search

warrant was unsupported by probable cause, but agreed with

defendant that violation of the knock-. d-announce requirement

necessitated suppression (CR 34-35; ER 62-70). This

interlocutory appeal by the government followed.

STATEMENT OF FACTS

The facts adduced for the suppression hearing consisted of

(1) the initial search warrant for defendant's residence and its

supporting affidavit by Deputy U.S. Marshal Wayne Kauffuann (CR

20, Exh. A; ER 20-17); (2) the second search warrant for

defendant's residence and its supporting affidavit by Special

Agent George Kim of the Bureau of Alcohol, Tobacco and Firearms

(CR 25, Exh. A; ER 42-49), and (3) a written stipulation of facts

by the parties (CR 31; ER 51-55). The stipulation and the search

warrant documents set forth the following undisputed facts on the

knock-and-announce issue:

In the pre-dawn hours of Saturday, November 5, 1994,

defendant, his wife Cynthia, and his three-year-old son

Christopher were asleep in the residence at 23170 Bohna Park Road

in rural Boring, Oregon. The residence has three bedrooms

(including a master bedroom), a living room, kitchen, and an

attached garage. (A diagram of the property is attached as

Appendix A.) This property covers several acres and includes, in

addition to the residence, (1) a large workshop building, located

about 195 feet south of the main residence (Diagram "E" in

Appendix A); (2) a large travel trailer located about 75 feet

west of the workshop (Diagram "F"); (3) a small utility trailer,

Located about 75 feet from the southwest corner of the residence

Diacram "D"); and (4) a small travel trailer, located

immediately adtacent te the east side of the garage (Diagram "C")

ER 51-52).

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

converged on the property to execute a federal search warrant for

the person of Alan Lawrence Shelby. A federal and state

ugitive, Shelby had slipped from his handcuffs and struck a

uty sheriff to escape while en route to testify on an

associate's behalf in Tillamook County (ER 52). Shelby had a

history of escapes, violent conduct, and criminal convictions and

had vowed that he would escape again and would not serve time in

a federal prison (ER 22, 52). Agents obtained information from a

person termed a confidential, reliable informant, that indicated

that Shelby had been present on the defendant's property. Other

information from the same informant indicated that the defendant

himself was possibly involved in drugs, which he kept in the

garage. The informant also indicated there were supposed to be

several guns in the garage (ER 52).

Shelby's first violent escape was in 1991, when he hit a

jailer in the face and kicked out a jail door. He then assaulted

a woman, stole her car, and rammed a police vehicle. More

recently, while awaiting trial on narcotics and weapons charges,

Shelby had attempted a forcible escape by making a rope from bed

sheets and breaking a window. He had also threatened to kill

witnesses and officers associated with his incarceration and had

brutally tortured others in the past with a hammer (ER 22). As a

major methamphetamine manufacturer, Shelby had access to large

caches of weapons (ER 23).

The U.S. Marshal sought authorization from the issuing

magistrate to serve the search warrant for Shelby at night and to

do so without compliance with the knock-and-announce requirement

set forth in 18 U.S.C. § 3109. The marshal prepared the warrant

with the appropriate language, and the magistrate signed it (ER

52).

Special "SWAT" teams of state, county, and city officers

surrounded the property. The Portland Police SWAT team was

responsible for clearing and securing the large workshop

building, the large travel trailer, and the small utility

trailer. The Clackamas County Sheriff's SWAT team was be

responsible for securing the garage area of the residence through

the east side window and for securing the travel trailer on the

east side of the driveway immediately adjacent to the two-car

garage (Diagram "C") (ER 52).

Officers entered the unlocked and empty travel trailer in

the driveway. While this was occurring, other officers passed

the location of the travel trailer to other parts of the property

(ER 52-53).

Thereafter, Deputy Barnum broke out the glass of the garage

window. While he did so, Sergeant VeraCruz shouted several

times. “Sheriff's Office, Search Warrant," at the window.

Veracruz then began to "gunport" the window, that is, aiming and

moving his gun through the window ready to shoot if necessary,

but he had trouble when the window's curtain got in his way (ER

ut the same time as this activity at the garage

wincow, an Oregon State Police officer was talking through a

le loud speaker system located at the front of the house.

Serceant Lowe, while at the garage window, was unable to hear

"at was being announced by the OSP officer because of Veracruz'

ye..ine. OSP Lieutenant Geistwhite, however, was present in

f£ the house next to Detective Lockwood and heard him

announce over the loudspeaker:

State Police--search warrant. Attention

inside 23170 SE Bohna Park. This is the

State Police. All occupants inside 23170 SE

Bohna Park, you are instructed to come out

the front door now. Do not resist. Have

hands on heads. You will not be harmed.

Inside the residence, defendant and his wife were awakened

by outside néises. Neither could determine what the noises were.

Defendant then heard the breaking of glass, and he and his wife

thought they were being burglarized. Both he and his wife feared

for their safety and that of their child who had awakened and was

crying. After hearing the glass breaking, defendant ran to the

laundry room closet, obtained a pistol, and ran to the entrance

of the garage area. Ina state of panic, defendant fired toward

the ceiling in an effort to scare away the intruders. A fragment

(ot

of metal struck VeraCruz in the face causing a slight wound (=R

53).

The law enforcement officers returned fire and

simultaneously shouted “police, police." Realizing, for the

first time, that law enforcement officers were outside and trying

to enter his residence, defendant ran to the living room, threw

away the firearm across the floor, and threw himself on the floor

in a prone position, shaking from fright. Defendant states that,

had he known that the police were trying to enter his home, he

never would have fired the weapon. Ultimately, defendant and his

wife, who was carrying their child in her arms, walked out of the

house and into police custody. Despite a thorough search of the

property, the officers did not find Shelby on the premises (ER

53-54).

About 6:35 a.m., ATF Agent George Kim interviewed defendant.

After advice and waiver of Miranda rights, defendant admitted he

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

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

said that he had been awakened by noises outside his house and

heard the sound of breaking glass. He said he shot up in the air

to scare away people he thought were trying to burglarize his

home. Because they were asleep, defendant said, neither he nor

his wife had heard any announcement of identity by the officers.

Shown a picture of Shelby, defendant said that a man with that

appearance might have been present on the property two days

earlier (ER 54).

Mrs. Ramirez also said that she did not know that the police Alternatively, any arguable illegality by the police did not

were trying to enter her home and that she believed she was being require application of the exclusionary rule because of

PERG ESS Cee, Qe OE ere. Che 7 defendant's intervening act of responding with gunfire. His own

Agent Kin used the internation Surniohes by Gefendent, slong violent conduct justified police entry, discovery of the firearn,

with a searching officer's observation of the gun on the living and a second search warrant, thereby purging any alleged taint

room floor, to obtain another search warrant (attached to the from non-compliance with the knock-and-announce rule.

government's memorandum in opposition of defendant's motion to ARGUMENT

suppress, and incorporated into the stipulation) (ER 42-59, 54). THE DISTRICT COURT ERRED IN SUPPRESSING

Executing the second warrant, agents reentered the house later AND-ANNOUNCE RULE. = ,

the same day and retrieved the pistol on the living room floor | A. Standard of Review

and @ second one located in a box as defendant had described (CR Suppression for alleged failure to comply with the knock-

31; ER $1-55). | eattiuiikdeiblias requirenent is reviewed de novo as a question of

SEMMARY OF ARGUMENT | law. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.

Specitic, articuiable casts crested exigent ciseunstances | 1994). Underlying factual findings are reviewed for clear error.

ang justified the officers' non-compliance with the statutory and Id.

constitutional knock-and-announce rule. There was probable cause B. Di ,

to believe a dangerous escaped federal felon was hiding inside Defendant sought suppression of the firearms found in his

Gefendant's house. The fugitive had committed several prior house on three grounds: (1) the alleged failure of the first

forcible escapes, hed vowed thet he would never serve tine in a search warrant's affidavit to establish probable cause that the

federal prison, and had access to firearms. Further, there was fugitive Shelby was in defendant's house, (2) failure to comply

TORSER CO RSLISTS CaEPERsent HINSSTS Rage Coupe ans guns 6a Nie with the knock-and-announce requirements of 18 U.S.C. § 3109, and

CAENGS. GASES SEPRITTENEES, FS WES SRUSURETTS ONS seneul (3) improper execution of the warrant in violation of the Fourth

OOS SRD SECISNED SS HE OES CRS ee" TP Gaye wena Amendment's knock-and-announce rule. The district court rejected

BSECES GLISUERG CHS SSSUPENTS CO HSSPSRS CO Ts GANSENONEENS OF defendant's probable cause argument but suppressed on the ground

that there was insufficient exigency to justify the officers’

: breaking a garage window before complying with the knock-and-

? 8

announce rule. The court erred in that holding. Further, the

court erred in rejecting the government's alternative argument

that, even assuming unlawful conduct, the exclusionary rule

should not apply because of defendant's intervening gunfire.

a. Exigent Circumstances Justified the Officers’ Breaking

the Garage Window Before Waiting for the Occupants to

Respond to the Announcement.

Officers serving a search warrant at a house ordinarily must

announce the authority under which they are acting and the

purpose of the call. If they are refused admittance to the

premises after the announcement, they may enter forcibly.

18 U.S.C. § 3109; United States v. Woodring, 444 F.2d 749

(9th Cir. 1971). Courts relax these requirements, however, when

exigent circumstances make observance of the statute

inappropriate. See United States v. Turner, 926 F.2d 883, 886-87

(9th Cir.), cert. denied, 502 U.S. 830 (1991). Here, the

officers announced their identity and purpose but, for safety

reasons, did so as they broke the garage window and thus did not

wait for the occupants to respond. Their actions were

nonetheless reasonable and lawful under all the circumstances.

The most recent case in the Ninth Circuit on the subject of

forced entry is United States v. Becker, 23 F.3d 1537, 1541 (9th

Cir. 1994), where the court held that “mere unspecific fears"

about peril to officers do not justify relaxation of the rule.

Becker discussed a two-tiered approach to exigency. Citing

United States v. McConney, 728 F.2d 1195, 1206 (9th Cir. 1984)

(en banc), the court stated that "even mild exigency, like

knowledge that a person is dangerous, can justify immediate entry

where that can be done without any physical destruction of

Property." Becker, 23 F.3d at 1540. See also United States v.

Arias, 923 F.2d 1387, 1391 (9th Cir. 1991). To justify physical

destruction of property (as occurred here), "(mjore specific

inferences of exigency are necessary." Becker, 23 F.3d at 1541

(quoting McConney, 728 F.2d at 1206).

Ninth Circuit decisions have further demonstrated the types

of circumstances that do not justify forced entry. In United

States v. Mendonsa

+ 989 F.2d 366, 370-71 (9th Cir. 1993), there

wWaS.insufficient exigency based merely on the occupant's prior

armed robbery conviction, a little noise inside the house, and

the “inherently dangerous job of arresting drug dealers."

court held that feared destruction of evidence, just because

there was “always" a danger in drug cases, was not an adequate

reason for forced entry. Although officers in United States v.

Fluker, 543 Fe2d 709, 717 (9th Cir. 1976), believed an occupant

owned a gun and there was a general fear that narcotics might be

destroyed, there was insufficient exigency. Finally, in Becker,

there was no exigency based on a generalized fear that the

homeowner might be dangerous and that a methamphetamine

laboratory might be on the premises.

The highly specific facts indicating dangerousness in the

present case stand in sharp contrast to the "generalized fears"

and skimpy facts outlined in the above decisions. The district

court correctly stated in its probable cause holding that there

was ample reason to believe the fugitive Alan Lawrence Shelby was

present at defendant's house. As set forth in detail in the

search warrant affidavit (ER 20-27), Shelby had a history of

escapes and assaultive behavior. A few days earlier, he had

escaped from a deputy sheriff by slipping out of handcuffs,

striking the deputy and knocking him down. Shelby was serving

long federal sentences for manufacturing methamphetamine and use

ofa firearm during a crime, concurrently with a state sentence

for armed robbery at the Oregon State Penitentiary. Shelby had

accurately predicted he would escape from a transport van if

given the opportunity and vowed he would "not do federal time”

(ER 22).

In 1991 Shelby struck a corrections officer in the face and

kicked out a jail door. While fleeing the jail, he assaulted a

woman, stole her vehicle, and then rammed a police vehicle.

While awaiting trial on narcotics and weapons charges in Eugene,

Shelby attempted a jailbreak by constructing a rope from torn bed

sheets and breaking a window (ER 22). He had threatened to kill

witnesses and police officers associated with his incarceration.

Also, Shelby had used a hammer brutally to torture people. A

major methamphetamine manufacturer, he had access to large caches

of weapons (ER 22-23).

For these very specific and detailed reasons, the officers

considered Shelby to be an extreme danger to their safety. There

was every reason to believe he would not submit peaceably to

their authority but would, as usual, react violently. “Armed and

dangerous" understates his status and the peril faced by law

enforcement officers in attempting to recapture him. Also, the

officers had information that defendant himself kept drugs and

guns in the garage, which his later violent reaction confirmed

(ER 52). The officers thus had a highly persuasive basis for

non-compliance with the knock-and-announce rule. This case

presents precisely the type of exigent circumstances contemplated

by Becker to justify forced entry without waiting for dangerous

occupants to respond to the officers' announcement.

In addition to his argument under 18 U.S.C. § 3109,

defendant contended -- and the district court agreed -- that the

officers' actions were unreasonable under the Fourth Amendment.

There is no authority for the proposition that the federal

constitution provides broader protection or a stricter knock~and-

announce rule than that of § 3109 in federal cases, and the

district court did not so hold. Rather, it appeared to treat

them as synonymous (ER 70, 71).

In the recent case of Wilson v. Arkansas, 115 S. Ct. 1914

(1995), the Court held that whether officers knock and announce

their presence and authority before entering a dwelling, as

required by common law, is a factor to be considered in

determining the reasonableness of a search under the Fourth

Amendment. While confirming the incorporation of the common-law

rule into the Fourth Amendment, the Court nonetheless stressed

the age-old exception that “the presumption in favor of

announcement would yield under circumstances presenting a threat

of physical violence." Id., 115 S. Ct. 1918-19 (citations

omitted). That, of course, was precisely the situation presented

here, and the officers responded reasonably by breaking out the

window simultaneously with their announcement to the occupants.

Without cataloging all the relevant countervailing factors, the

Supreme Court in Wilson simply held that, “although a search or

seizure of a dwelling might be constitutionally defective if

= officers enter without prior announcement, law enforcement

interests may also establish the reasonableness of an unannounced

entry." Id. at 1919. Here, the same demonstrated exigencies

that sufficed to excuse § 3109 compliance also met the Fourth

Amendment reasonableness test.

The magistrate's endorsement of a “no-knock" clause in the

first warrant, while not explicitly authorized by statute, in no

way illegitimized the officers' conduct. If anything, the

endorsement manifested their good faith in submitting the matter

to judicial analysis prior to the warrant's execution. It

certainly did not affect the legality and constitutionality of

the forced entry, which passes muster under the objective

exigency test discussed above.

2. In the Alternative, Defendant's Intervening Gunfire

Makes Application of the Exclusionary Rule

Inappropriate.

The government's primary position, both on appeal and in the

district court, is that a specific showing of exigency excused

compliance with the knock-and-announce rule. Even assuming,

arguendo, that position is incorrect, it does not follow that the

court must exclude evidence of the two firearms forming the basis

for defendant's indictment. Rather, defendant's intervening act

of firing his weapon renders the exclusionary rule inapplicable

to the firearms since they were not "fruit of the poisonous

tree."

“” Wong Sun vy. United States, 371 U.S. 471, 487-88 (1963), the

seminal case in the field, described the limitations of the

exclusionary rule:

We need not hold that all evidence is "fruit

of the poisonous tree” simply because it

would not have come to light but for the

illegal actions of the police. Rather, the

more apt question in such a case is whether,

granting establishment of the primary

illegality, the evidence to which instant

objection is made was come at by exploitation

of that illegality or instead by means

sufficiently distinguishable to be purged of

the primary taint.