# Appendix — 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%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1212

## Text

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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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Transcript of Argument im the District Court 2... ccc eee eeeeens
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

a

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

~~

—

oe

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

Ee

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.
8
i) Transcript of Motion to Suppress
10
oa
1l
. 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
17
18
19

20 Reported by: Liz Meacham
620 S.W. Main Street, #225
21 Portland, Oregon 97205
(503) 326-3113

24

Stenographically reported, computer-aided transcription
25

~—

ta

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

4
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

5
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

24

25

6
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

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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.

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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

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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.

10

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

11
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
12

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-

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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,

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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

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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

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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

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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.

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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

19
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

=)

J

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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 --

21
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

22
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 ©

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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

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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.

25

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

26
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

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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,

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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

29
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

30
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

a

31
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)

f)

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

5

(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
a

(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.

10

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).

11

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

12

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.

13

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.

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

14

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 (11th 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
progress when flight occurred. In each case the court held that
the flight constituted an intervening act which provided probable

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

United States v. Waupekenay, 973 F.2d 1533 (10th Cir. 1992),

reached the same result for a different reason. Defendant in
that case pointed a gun at the police after they had illegally

entered 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.
Waupekenay was aware that the police officers
were present in his home and were observing
him, he could not have had a reasonable

15

expectation of privacy for any actions

initiated subsequently to that time in their
presence. He obviously intended for the

police to see him aim a semi-automatic weapon
at them. Thus he could not have had a
legitimate expectation of privacy in that
action.

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 . .

Id., 973 F.2d at 1537 (citations omitted). 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, Illinois

v. Villarreal, 152 Ill. 2d 368, 604 N.E.2d 923, 178 Ill. Dec. 400
(1992), deserves mention. The Illinois Supreme Court held that

defendants were precluded from resisting the 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 home to arrest another person. [d,, 604 N.E. 2d at

927.

16

Here, defendant responded to the officers by firing his
pistol from his home. His intervening action created an
independent basis for what followed, namely, his removal from the
house, 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.

CONCLUSION
For the above reasons, the district court's order

suppressing evidence should be reversed and the case remanded for

trial. SAK
DATED this / day of August, 1995.

Respectfully submitted,

KRISTINE OLSON
United States Attorney
District of Oregon

17

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

REPLY 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-Appellee

Re ET eee

LIST OF AUTHORITIES CITED ......-+.-eeece

ARGUMENT NO. I . . . . . . . . . . . * . . —

ARGUMENT NO . II . . . . . . . . . . . . . . .

CONCLUSION . . * * * . * . . * . . . . . . . .

ii

ARGUMENT NO. I
LIST OF AUTHORITIES CITED
THEIR BREAKING A-WINDOW TO OBTAIN ENTRY TO
CASES CITED Fage ANNOUNCED THEIR PRESENCE.

Dalia United States, 441 U.S. 238 (1979) - - - + + e+ e+ 2 + 3 Both defendant and the district court err in their
Illinois v. Gates, 402 U.S. 213 (1983) «© + + + e+ es ee we 5 contention that the officers lacked sufficient information to
Ton vy. Uni , 362 U.S. 257 (1960) . . »« » © © © © © + G justify breaking the garage window Simultaneously with their
Massachusetts v. Sheppard, 468 U.S. 981 (1984) .+.+++-+- 8 announcement of presence. Unlike United States v. Becker, 23
Spinelli v. United States, 393 U.S. 410 (1969) .-. + +++ -s . | F.3d 1537, 1541 (9th Cir. 1994), where "there was no specific
Texas v. Brown, 460 U.S. 730 (1983) - +--+ +++ ++seees & information that Becker himself was armed or dangerous," here the
United States v. Recker, 29 Sabra ont CMe Wink ees GN information amply demonstrated both.
i ! | 166 F.24 890 Alan Lawrence Shelby was an escapee who had already engaged
Fe COE SO 6 ee ee ee re swe 8k Le in violence in effecting his most recent escape; he had a prior
United States v. Leon, 468 U.S. 897 (1984) . «© «© ee e 2 « 8,9 record of using violence in escaping; he was serving time for a
United States v.Hichaslian, 90? 7-2" ogy Cee RE Ropar sO oneeN firearms offense and a dangerous drug crime; he had a reputation

, 751 F.2d 1528 for violence against people who got in his way; through his

United States v. Murray
(9th cir. 1985) - . = * . . _ > a _ =o > — > _ — > oO * . > 7 _ 6

United States v. Seybold, 726 F.2d 502 (9th a a
United States v. Ventresca, 380 U.S. 102 (1965) « - +--+ += -* =

methamphetamine connections, he had access to firearms; and, last

but not least, he had boasted that he would not do time in a*

federal prison. Also, there were grounds to believe defendant
U.S. CONSTITUTION CITED ; kept guns and drugs in the attached garage, the focus of the

sie a a alae a eee ede ae eo 8 3,4,8 officers’ concern. Against this background, it borders on the

absurd to contend that the officers were not in specific danger

and that they could only enter the house unannounced if they
found an open door or window.

Defendant and the district court seem to rest their position
on the absence of an eyewitness actually seeing Shelby in
possession of a firearm. Becker certainly imposes no such

1
ii

I "specific
requirement, however. Instead, Becker requires P

infarmation” to believe an occupant is armed or dangerous. Id.

at 1841. The information at hand more than met that burden. A

reasonable person could easily infer from the specific

inf that Shelby was dangerous, armed, and likely to

—— 5 le Te |
ormation

respond with violence to any attempt to arrest hin.

Under the circumstances, securing the garage first was a

. he
sensible plan fully supported by reason and common sense T

¢ficers reasonably feared a violent response, and they took

limited measures to meet that threat. What were their

alternatives? One alternative could have been to knock,

and wait for a response, which could well have been

announce,

Shelby firing at them in the dark. Another alternative could

have been searching (probably in vain) for an unlocked door,

entering unannounced, and facing a fate worse that what actually

sceurrec. Or, they could have broken down doors with perhaps an

even worse result.

In fact, the officers' intrusion was minimal. Again in
contrast to Becker, they did not break down any doors or engage

in extensive destruction of property as part of their plan.
Instead, they broke a single window in the garage. (Later,

unplanned damage occurred only in response to defendant's

gunfire.)
The district court's decision is perplexing. Under its

decision,
dangerous situation in executing a warrant may open an unlocked

officers who have strong reason to believe they face a

door and enter a house, but they may not break open a window,
much less break down a door. That rule does not protect the
officers, because it is fortuitous whether they will find an open
door, and it does little to further the Fourth Amendment rights
of the occupants, because in both cases the officers have entered
the house without knocking and announcing their presence.

The Supreme Court has ruled that "it is generally left to
the discretion of the executing officers to determine the details
of how best to proceed with the performance of a search
authorized by a warrant -- subject of course to the general
Fourth Amendment protection ‘against unreasonable searches and
seizures.'" Dalia v. United States, 441 U.S. 238, 257 (1979).
The officers' actions here were entirely reasonable in view of
the demonstrated and serious threat to their safety in arresting

a dangerous, even crazed, felon.

Defendant's act of shooting from his house at the officers
supplied an intervening event that broke the chain of causation
between the asserted Fourth Amendment violation and the receipt
of the guns. The government's position regarding this issue is
fully discussed in its opening brief and need not be restated
here. Defendant's principal reply is that, because he did not
know he was shooting at the police, there was no attenuation of
the alleged taint. That really misses the point, however.

3

The pertinent issue is whether there was an independent
intervening act that, in effect, justified the subsequent police

onduct of entering defendant's house and obtaining a second

~
~ ues

search warrant for the guns. What defendant knew, thought, or
intended does not change the fact that he initiated gunfire which
broke the earlier chain of causation between the asserted Fourth
Amendment viclation and the receipt of the guns.

Purthermore, the asserted police error in this case, even
more than in the typical case of a knock-and-announce violation,
had no causal link to the receipt of evidence. That is because
the court below (following the magistrate who authorized an
anannounced entry) found that an unannounced entry was justified;
it was merely the breaking of the garage window as part of that
entry that was not. The exclusionary rule should not apply to
such an alleged violation, particularly when the police are met
with gunfire.

Stated another way, the privacy interests protected by the
knock-and-announce rule were validly compronised, as both the
district court and the magistrate indicated, with a warrant that
itself authorized a no-knock entry. The only violation was to

the property interests served by the rule (j.e., the broken pane

of glass). There is no causal connection between the property
violation and the fruits of the search, except in the most

attenuated sense, most especially after defendant himself

initiated the gunfire.

ARGUMENT NO. IIL

THE DISTRICT COURT CORRECTLY HELD THAT THERE
WAS PROBABLE CAUSE SUPPORTING THE SEARCH
WARRANT FOR THE FUGITIVE AT DEFENDANT'S

Defendant's alternative argument, that the initial search
warrant lacked probable cause to believe the fugitive Shelby was

present at defendant's house, was correctly rejected by the

district court.

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

and haste of criminal investigation. Technical
requirements of elaborate specificity once exacted

under common law pleadings have no place in this area.

A yy or negative attitude toward warrants will
end to discourage police officers from submitting

t
their evidence to a judicial officer before acting.

Id., 380 U.S. at 108.

According to I}linois 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,
5

the @uty of a reviewing court is simply to ensure that the

mecistrate 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.

1885). 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 vy. Brown, 460

U.S. 7230 (1983); United States v. Seybold, 726 F.2d 502, 503-504
Sth Cir. 19864).

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, 1994. A confidential, reliable
informant told ATF Special Agent Kim that he had seen a man named
"Alan" at the residence who made the approximate statenent, "I
had to knock out 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 1l0-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 quaré, coupled with
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

4ia in the district court (ER 10), 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 ts
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.
CONCLUSION
For the above reasons and all those discussed in the
government's opening brief, the suppression order of the district
court should be oe and the case remanded for trial.
+
DATED this [Gt day of October, 1995.
Respectfully submitted,
KRISTINE OLSON

United States Attorney
District of Oregon

Uy,

States Attorney

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Appellant
v.
HERNAN RAMIREZ,

Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PETITION FOR REHEARING
WITH SUGGESTION FOR REHEARING EN BANC

STATEMENT OF COUNSEL
In this case, a divided panel held that police officers

violated the Fourth Amendment and the federal knock-and-announc

a warrant to search for a violent, potentially armed, escaped
convict. By any standard, the officers acted reasonably, and the
majority erred by second guessing the officers’ determination,
which had been validated by a federal magistrate judge in a "no-
knock" warrant, that they faced circumstances allowing them to
dispense with the requirement that they announce their presence
before entering the dwelling. Rehearing en banc is warranted not
only to correct the majority’s erroneous decision, but also
because, as both the majority and the dissent acknowledged, this
Court’s cases do not provide consistent guidance on the question

when sufficient exigency exists to justify dispensing with the

announcement requirement.
QUESTION PRESENTED
Whether police officers violated the Fourth Amendment and 18
-€.¢. § 3108 by breaking a window of the defendant’s garage while
executing & “no-knock" warrant to search for a violent and
potentially armed escaped convict.
STATEMENT
-. ne Assicavit ang the No-Knock Warrant: On November 1,
~5S4, while em route to testify at a state criminal trial, Alan
wawrence Shelby, a prisoner serving time for federal Grug and
srearms viclations and on a state armed robbery conviction,
Simppes out of -his handcuffs, assaulted a Geputy sheriff, and
escapes. On November 4, 1984, Deputy U.S. Marshal Wayne Kauffmann

app.:ec for @ warrant to search defendant Ramirez’s residence for

She.dby. The affidavit in support of the application recounted that
& previously reliable confidential informant had seen a person

Dbe.ievec to be Shelby at Ramirez’s residence in Boring, Orescon.
Tne eificavit stated that the person had been introduced to the
sniormant es "Alan" and had stated, "I had to knock out a guard" in
the informant’s presence. According to the affidavit, after
receiving this information, an Kauffmann and an ATF agent had
separately driven by Ramirez’s residence and seen a man resembling
Shelby. ER 23-26.

The affidavit also recounted that Shelby "had a history of
violent escapes" and that he had stated that he would not "‘do

federal time.‘" According to the affidavit, Shelby had attempted

oe .

to escape from custody in-1991 “by striking a corrections officer
in the face and kicking out the door of the jail. Shelby ran from
the jail and assaulted a woman in a parking lot and stole her
vehicle. During the escape attempt, Shelby rammed a police vehicle
with the stolen vehicle." The affidavit further stated that Shelby
“has made threats to kill witnesses and police officers associated
with his incarcertion" and that he "has brutally tortured others in
the past with a hammer." Finally, the affidavit stated that Shelby
"was a major Methamphetamine manufacturer and has had access <->
large caches of weapons." ER 21-22.

Based on the information in the warrant, a magistrate sudge
issted a warrant to search Ramirez's residence for Shelby. At
Deputy Marshal Kauffmann’s request, the magistrate included the

following provision in the warrant: "because of exigent circum-

premises without complying with the Knock-and-Announce

requirement." ER 24.

2. The Search of Ramirez’s Residence: Prior to executing
the warrant, the officers received information from the informant
that Ramirez might be storing several guns in his garage. ER 52,
67-68. On November 5, 1994, at about 6:15 a.m., about 45 law
enforcement officers surrounded Ramirez's house. Through a loud-
speaker, a police officer announced the officers’ presence and
ordered the occupants of the building to come out. At the same

time, a police officer broke open the window of the garage, while

another officer shouted "Sheriff's Office, Search Warrant." ER 53.

Awakened by the police activity, Ramirez initially thought
that his house was being burglarized. He ran to a closet, grabbed
€ gun, and fired it into the ceiling. A short time later, Ramirez
realized that the police had surrounded the house and surrendered.

tter receiving and waiving his Miranda rights, Ramirez admitted
that he was a convicted felon and that he owned the gun that he had
firec as well as another one. Ramirez further admitted that a man
resembling Shelby had been at his house two days earlier. Based on
Ramirez's statement and the officers’ observation of the gun
Ramirez hac fired, the officers obtained another warrant and seized

3. xi ur .Sion: Ramirez was charged with

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firearm by a convicted felon. He moved to suppress

ct

he iirearms seized from his house, and the district court granted
the motion. ER 62-72. Initially, the court found that the govern-
ment had presented probable cause sufficient to justify the
issuance of the search warrant. The court found, however, that the
officers had violated the federal knock-and-announce statute, 18
U.S.C. § 3109, by breaking the window of Ramirez's garage as they
announced their presence. The court acknowledged that "there were
specific facts known regarding Shelby’s propensity to attempt
escape, his disdain for federal incarceration, and his past
willingness to use threats and violence as a means of intimida-
tion." ER 68-69. It found, however, that the officers had shown
insufficient exigenct circumstances because "there was no informa-

tion that [Shelby] was armed and dangerous at defendant’s home, or

that he would present any specific dangers to arresting officers if
found there." ER 68-69.

4. The Panel Decision: A divided panel of this Court

affirmed the district court’s suppression order.’ The majority

employed a two-tier analysis drawn from United States v. Becker, 23
F.3d 1537 (9th Cir. 1994), in which a "mild exigency" justifies an
unannounced entry "that can be done without any physical disruption

of property" and “more specific inferences of exigency are

necessary" to justify the physical destruction of property. The

majority held that a sufficient level of exigency had not been

shown here based on the following analysis:

“whe 45 officers did not fear any of the actual residents of
the house and were not attacking a gang or cult hangout where
they might be met by a fusillade of gunfire. They were
concerned about one person, Shelby, who might be on the
premises. But Shelby was not known to have ever shot or shot
at anyone. He was an escape artist, who said he would not go
to federal prison. He had knocked people down in his escape
attempts, and he had stolen a car and run into a police
vehicle. His violence toward law enforcement had not extended
beyond that, even though he had obviously been arrested on
Some occasions. Perhaps his degree of dangerousness bespoke

a mild exigency. Certainly it did not bespeak more.
Slip op. 9465. The court also found a lack of specific evidence
that Shelby was armed or that "when he was faced with [a] show of
force he would do anything violent at all." Id. at 9467.

The majority then held that the illegal entry to the home
required the suppression of the seized firearms. The court found
that the "seizure of the guns * * * came as the most direct, if not

the only, result of the" police “break-in." It rejected the

» A copy of the panel decision is appended to this petition.

5

government’s argument that Ramirez’s firing of the pistol into the
ceiling was an “intervening event" that broke the causal chain
between the police entry and the seizure of the firearm.

Judge Kozinski Siecenned. He argued that the majority opinion
“opens a square conflict with United States v. Turner, 926 F.2d 883
(9th Cir.), cert. denied, 502 U.S. 830 (1991)." Using a chart,
Judge Kozinski then explained that in Turner on facts identical or
less compelling than those presented here, the court had upheld a
forcible, unannounced entry into a residence to execute a warrant.
Judge Kozinski emphasized Shelby’s history of violence and noted
that the majority "tr[ies) to duck Turner by claiming that our
ennte ‘graph a coplex curve.’" Slip op. 9475 (quoting majority
op. at 9467). He responded, "But if the law is in that much
turmoil, we must call for sua sponte en banc." Slip op. 9475.

Judge Kozinski also argued that "[e])ven had the no-knock
search been illegal, this would provide no grounds for suppression
of the evidence pertaining to Ramirez." He asserted that the
majority opinion raised intra-circuit conflicts on this issue as
well. Slip op. 9477 (citing United States v. Jones, 608 F.2d 386
(9th Cir. 1979), and United States v. Garcia, 516 F.2d 318 (9th
Cir.), cert. denied, 423 U.S. 934 (1975)). According to the
dissent, suppression was not required because "police couldn’t
possibly be deterred by the threat of exclusion of evidence
relating to a completely different person and crime" and because
Ramirez's firing of the gun was an intervening act that dispelled

the taint of any official illegality. Slip op. 9478-79.

6

REASONS FOR GRANTING THE PETITION

The majority held that the officers’ breaking of a single
garage window as they announced their presence while executing a
search warrant for a violent escapee violated the Fourth Amendment
and the federal knock-and-announce statute. The majority reached
that conclusion based on its own detached and exacting assessment
of the circumstances facing the officers. Measured against the
reasonableness requirement of the Fourth Amendment, however, the
officers acted properly when confronted with a violent and
dangerous drug dealer.

The majority’s conclusion creates a conflict with prior
decisions of this Court and exacerbates the confusion in this
Court’s cases. Moreover, the current state of the law in this
Circuit leaves police officers in the field with little guidance in
an area where they are required literally to make life and death
decisions. Accordingly, rehearing en banc is warranted.

1. In Wilson v. Arkansas, 115 S. Ct. 1914, 1918 (1994), the
Supreme Court held that “in some circumstances an officer's
unannounced entry into a home might be unreasonable under the
Fourth Amendment." The federal knock-an@-announce statute, 18
U.S.C. § 3109, prohibits an officer from breaking into a house
unless "after notice of his authority and purpose, he is refused
admittance." As the Supreme Court explained in Wilson, however,
"the Fourth Amendment’s flexible requirement of reasonableness
should not be read to mandate a rigid rule of announcement that

ignores countervailing law enforcement interests." 115 S. Ct. at

1918. Instead, "the presumption in favor of announcement would
yield under circumstances presenting a threat of violence." Ibid.
Likewise, this Court has held that "a police officer’s ‘reasonable
belief that announcement might place him or his associates in peril
* * * justifies non-compliance with the announcement provisions’ ”"
of Section 3109. United States v. Manfredi, 722 F.2d 519, 524 (9th

Cir. 1983) (quoting United States v. Kane, 637 F.2d 974, 978 (3d
Cir. 1981)).

Thus, under both the Fourth Amendment and Section 3109, an
officer may make an unannounced entry into a dwelling if he
reasonably believes that announcing his presence would create a
Ganger to himself or others. Here, the officers plainly acted
reasonably. At the time that they executed the warrant, they had
the following information concerning Shelby: (1) Shelby had been
convicted of Grug and firearm offenses and of armed robbery; (2) he
had escaped from custody by assaulting a police officer; (3) three
years earlier, he had attempted to escape by assaulting a correc-
tions officer and a bystander and by using a stolen car to ram a
police car; (4) he had stated that he would not "do federal time";
(5) he had threatened to kill witnesses and police officers asso-
ciated with his incarceration; \6) he had "brutally tortured others
in the past with a hammer"; and (7) he had access to firearms.

In addition, the officers had received information that
Ramirez kept firearms in the garage. Finally, the officers had
presented the facts concerning Shelby’s violent conduct to a

federal magistrate judge, who had authorized them to dispense with

the announcement requirement. In short, according to undisputed
evidence, the officers had probable cause to believe that they were
executing a warrant at a house containing a man convicted of two
offenses involving firearms, who had vowed not to serve federal
prison time, who had a proven history of violent escapes and a
reputation for psychotic violence, and who had might have access to
firearms in Ramirez’s house.

Any reasonable officer would have feared for his safety under
these circumstances. Thus, these officers acted reasonably in
causing a minimal degree of property damage to secure Ramirez’s
home. Indeed, the Supreme Court in Wilson expressly found that
for€ible entry is justified in precisely this situation. The Court
held that "it would be a ‘senseless ceremony’ to require an officer
in pursuit of a recently escaped arrestee to make an announcement
prior to breaking the door to retake him." 115 S. Ct. at 1919
(citation omitted). Thus, the officers in this case would have
been justified in using far more force in entering Ramirez's
dwelling. Instead, they confined themselves to breaking a single
window in the part of the house thought to contain firearms. The
intrusion on Ramirez’s privacy and property interests was minimal
and tailored to the officers’ legitimate safety concerns.

The majority’s conclusion that the police lacked sufficient
grounds for breaking the window trivializes the danger the officers
faced and second guesses a commonsense law enforcement judgment.
The majority reasoned that "Shelby was not known to have ever shot

or shot at anyone." A reasonable person does not need evidence

oo

to force open a door when police knew the defendant was likely to
be armed, had a violent criminal record, and associated with
another violent criminal. Again, police had at least as much
specific information that Shelby presented a threat of violence.

Similarly, in United States v. Ramirez, 770 F.2d 1458, 1461
(9th Cir. 1985), an FBI agent kicked down a door of a residence
while executing an arrest warrant. This Court found sufficient
exigent circumstances to justify this level of property destruction
based on information that the defendants were suspects in a murder,
were considered armed and dangerous, and knew that the FBI was
looking for them. The Court did not require the kind of specific
inf®rmation that the defendants would use force to resist arrest
that the Court believed was necessary in this case.

Thus, it is an understatement to state, as the majority does,
that this Court’s cases "graph a complex curve." In fact, the
Court’s cases can only leave law enforcement officials guessing
concerning decisions that they must often make at the spur of the
moment under highly dangerous and stressful circumstances.

The principal source of the confusion is the Court’s rigid
two-tier approach to the question whether exigent circumstances
justify an unannounced entry. Under that test, a "mild exigency *
* * can justify immediate entry when that can be done without any
physical disruption of property,” but "more specific inferences of
exigency" are necessary to “justify physical destruction of
property." See United States v. Becker, 23 F.3d at 1540. Here,
for example, the majority concluded, "Perhaps [Shelby’s) degree of

11

dangerousness bespoke a mild exigency. Certainly, it did not
bespeak more."

This approach is unworkable. Police officers are not equipped
to judge in the heat of executing a search warrant whether they
confront a “mild exigency" or a not-so-mild one. Nor do officers
know when they execute a warrant whether they will find an open
door, which they can proceed through if they have a mild exigency,
or a locked door that requires something more. Police officers
should not have to compromise their safety because they encounter
a locked door or window while conducting an otherwise valid search.
Nor should the validity of a search depend on the fortuity of
whether the officers find an opened or locked door. Indeed; the
result in this case would have been different if the officers had
found a garage window or door open at Ramirez's residence.

Moreover,.the.Court’s two-tier approach unreasonably requires

ive

people -- and certainly the vast majority of wrongdoers -- lock the
doors and windows of their dwellings. Second, under the Court’s
approach police officers act equally unreasonably if, lacking
"specific inferences of exigency," they breach a house’s walls or,
as in this case, they break the window of a room that may contain
firearms. Instead of according dispositive significance to this
factor, the extent.of property damage _should be considered as a

-Single factor, in, the "reasonableness" balancing test. required by

12

—w ee

the Supreme Court’s decision in Wilson. See Wilson, 115 S. Ct. at
1919; see also Bodine v. Warwick, 72 F.3d 393, 398 (3d Cir. 1995)
(Wilson adopts an overall standard of reasonableness that considers
exigency as a single factor). Put another way, either the police
reasonably believe that the element of surprise is needed to avoid
risk to their safety -- and may thus use appropriate force to
effect an entry -- or they do not.?

3. The majority also erred in concluding that a violation of
the announcement requirement requires suppression of the two fire-
arms seized from Ramirez’s house. As the Supreme Court has
reiterated, "the issue of exclusion is separate from whether the
Fourth Amendment has been violated, and exclusion is appropriate
only if the remedial objectives of the rule are thought most
efficaciously served." Arizona v. Evans, 115 S. Ct. 1185, 1192-33

(1995) (emphasis adde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0057%3A04. Public record. Not legal advice.