Amicus Curiae Brief — Richards v. Wisconsin

a 1 13

No. 96-5955 | 8

OCTOBER TERM, 1996

STEINEY J. RICHARDS, PETITIONER

U.

STATE OF WISCONSIN

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

WALTER DELLINGER

Acting Solicitor General

MARK M RICHARD

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

0 Bupreme Court, U.S. ‘|

Penge

;

i

QUESTION PRESENTED

Whether it is reasonable for police officers who have

a warrant to search a dwelling for evidence of drug

trafficking to enter the dwelling to execute the war-

rant without a prior announcement of their presence and

purpose.

(I)

= we

ey 72

eye

TABLE OF CONTENTS

The immediate entry of petitioner’s motel room

to execute a valid narcotics search warrant was

A. Although the common law rule of announce-

ment is an aspect of the Fourth Amendment’s

reasonableness requirement, an unannounced

entry may be valid if it is supported by suf-

ficient justifieation . . ... . . . . . . .

B. Protecting the safety of police officers and

preventing the destruction of evidence are

sufficient justifications for an unannounced

C. Officer safety generally provides a basis for

an unannounced entry in drug trafficking

D. Preservation of evidence generally provides

a basis for an unannounced entry in drug

E. Petitioner’s objections to immediate no-

knock entries in narcotics cases are with-

Ee

(III)

10

12

18

N

IV

TABLE OF AUTHORITIES

Cases: Page

Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995) .... 22

Chimel v. California, 395 U.S. 752 (1969) ............. 13, 19

Commonwealth v. Rodriguez, 614 N.E.2d 649

. —cü—K—-— = T 14

Dalia v. United States, 441 U.S. 238 (1979) ......... 25

Harmelin v. Michigan, 501 U.S. 957 (1991) 15

Hill v. California, 401 U.S. 797 (1971) . 27

Hummel-Jones v. Strope, 25 F.3d 647 (8th Cir.

. — —— —— —„—- 25

Illinois v. Rodriguez, 497 U.S. 177 (1990) ............. 18, 27

Ker v. California, 374 U.S. 23 (1963) 18, 19

Marylexd v. Buie, 494 U.S. 325 (1990) ............ 11, 12, 26

Maryland_v. Wilson, No. 95-1268 (Feb. 19,

——— 12

Michigan v. Long, 463 U.S. 1032 (1983) ............... 12

Michigan v. Summers, 452 U.S. 692 (1981) ..... 12, 15, 26

Miller v. United States, 357 U.S. 301 (1958) ........ 8, 9, 29

Mincey v. Arizona, 437 U.S. 385 (1978) .. 26

Murray v. United States, 487 U.S. 533 (1988) ..... 29

National Treasury Employees Union v. Von

Raab, 489 U.S. 656 (1989) 15

New York v. Belton, 453 U.S. 454 (1981) .............. 25

New York v. Harris, 495 U.S. 14 (1990) .............. 29

Niz v. Williams, 467 U.S. 431 (1984) ................... 29

Payton v. New York, 445 U.S. 573 (1980) ............ 21, 28

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ...... 13

Read v. Case, 4 Conn. 166 (1822) . 16

Sabbath v. United States, 391 U.S. 585 (1968). 9, 17, 29

Segura v. United States, 468 U.S. 796 (1984) . 23, 29

State v. Stalbert, 783 P.2d 1005 (Or. Ct. App.

6. v 14

State v. Stevens, 511 N.W.2d 591 (Wis. 1994),

cert. denied, 115 S. Ct. 2245 (1995) 5, 14

Steagald v. United States, 451 U.S. 204 (1981) .... 28

Cases—Continued: Page

Tennessee v. Garner, 471 U.S. 1 (1985) 11, 28

Terry v. Ohio, 392 U.S. 1 (1968) . . . 13, 24

United States v. Allende, 486 F.2d 1351 (9th

Cir. 1973), cert. denied, 416 U.S. 958 (1974) ........ 22

United States v. Arias, 923 F.2d 1387 (9th Cir.),

cert. denied, 502 U.S. 840, 876 (1991) ................... 22

United States v. Artieri, 491 F.2d 440 (2d Cir.),

cert. denied, 417 U.S. 949 & 419 U.S. 878 (1974) .. 16

United States v. Baker, 907 F.2d 53 (8th Cir.

7 —— W m EE 20

United States v. Bauer, 84 F.3d 1549 (9th Cir.),

cert. denied, 117 S. Ct. 267 (1996), Nos. 96-7179,

96-7220, 96-7223, 96-7226, 96-7303 (Feb. 18, 1997) .. 20

United States v. Birbal, 62 F.3d 456 (2d Cir.

— ˙—— m mmm 20

United States v. Bonner, 874 F.2d 822 (D.C.

1 ee 13-14, 16, 22

United States v. Buford, No. 96-3244, 1997 WL

73662 (8th Cir. Feb. 24, 1997) .. 19

United States v. Carr, 939 F.2d 1442 (10th Cir.

ü . — —— 20

United States v. Carter, 999 F.2d 182 (7th Cir.

„ß 21

United States v. Cordero, 860 F.2d 1034 (11th

11 K» 21

United States v. Cruz, 805 F.2d 1464 (11th Cir.

1986), cert. denied, 481 U.S. 1006 & 482 U.S. 930

. ͤ— ͤ ˙ V W - 14

United States v. Gahagan, 865 F.2d 1490 (6th

Cir.), cert. denied, 492 U.S. 918 (1989) ................. 14

United States v. Garcia:

741 F.2d 363 (11th Cir. 1984) . . .. 22

963 F.2d 1160 (let Cir. 100 22

United States v. Golter, 880 F.2d 91 (8th Cir.

—————————— —ẽẽ 14

Cases—Continued:

United States v. Grant, 545 F.2d 1309 (2d Cir.

1976), cert. denied, 429 U.S. 1103 (1977) ..............

United States v. Hale, 977 F.2d 455 (8th Cir.

˙—ẽ—g)nα .

1 ̃ ˙ Fkl!

11 —..... .. .

United States v. Jackson:

585 F. 2d 653 (4th Cir. 1978) . . . . . .

990 F.2d 251 (6th Cir. 1993) ... .. . ..

United States v. Johnson, 12 F.3d 827 (8th Cir.),

cert. denied, 511 U.S. 1095 (1994)

United States v. Kane, 637 F.2d 974 (3d Cir.

—A nd

United States v. Keene, 915 F.2d 1164 (8th Cir.

1990), cert. denied, 498 U.S. 1102 (1991) ..............

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

16

22-23

1994), cert. denied, 115 S. Ct. 939 (1995) ........ 15, 16, 22

United States v. Kenyon, 7 F.3d 783 (8th Cir.

10 ͤ ˙˙é!Q—— ͤö!l! .

United States v. King, 36 F.3d 728 (8th Cir.

1994), cert. denied, 115 S. Ct. 954 (1995) ..............

United States v. Kirk, No. 94-50472, 1997 WL

40602 (5th Cir. Feb. 3, 1997) . . .

United States v. Lindsey, 47 F.3d 440 (D.C.

Cir.), vacated, 116 S. Ct. 665 (1995)

United States v. Lucien, 61 F.3d 366 (5th Cir.

—ü— SH . . 0 ‚—⏑ ＋«—ði¼e

— K

— K

United States v. Medlin, 842 F.2d 1194 (10th Cir.

——ü— W . ˙

Vil

Cases—Continued:

United States v. Melendez, 60 F.3d 41 (2d Cir.),

cert. denied, 116 S. Ct. 258, 429 (1995), cert.

granted and judgment vacated, 116 S. Ct. 900

8

United States v. Mitchell, 64 F.3d 1105 (7th Cir.

1995), cert. denied, 116 S. Ct. 1549 (1996) .............

United States v. Nabors, 901 F.2d 1351 (6th

Cir.), cert. denied, 498 U.S. 871 (1990) .................

United States v. Nolan, 718 F.2d 589 (3d Cir.

ä . — ——

1 eee

United States v. Place, 462 U.S. 696 (1983)

United States v. Roberts, 913 F.2d 211 (5th Cir.

1990), cert. denied, 500 U.S. 955 (1991)

United States v. Robinson, 414 U.S. 218 (1973) ...

United States v. Rosa, 11 F.3d 315 (2d Cir.

1993), cert. denied, 511 U.S. 1042 & 114 S. Ct.

K

United States v. Sim ms, 18 F.3d 588 (8th Cir.

—— —

1 — ——— —-—-—-—ͤ

——ñ̃ —

ä ——̃ñññ—— ͤ(k—4ů¹

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

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

United States v. Streeter, 907 F.2d 781 (8th Cir.

ä — ——

United States v. Tolliver, 665 F. 2d 1005 (11th

Cir.), cert. denied, 456 U.S. 935 (1982) . .

United States v. Tracy, 835 F.2d 1267 (8th Cir.),

cert. denied, 486 U.S. 1014 (1988) .. . . .

VIII

Cases—Continued: Page

United States v. Villamonte-Marquez, 462 US.

111 KKK . 11

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

1980), cert. denied, 450 U.S. 1004 (1981) .............. 16

United States v. Wiener, 534 F.2d 15 (2d Cir.),

cert. denied, 429 U.S. 820 (1976) . . . . 14

Vale v. Louisiana, 399 U.S. 30 (1970) .................. 21

Whren v. United States, 116 S. Ct. 1769 (1996)..... 16

Wigglesworth v. Oregon, 49 F.3d 578 (9th Cir.

“—’—K—ä—äK— 20

Wilson v. Arkansas, 115 S. Ct. 1914 (1995) .......... 5, 6, 8,

9, 11, 20, 22, 29

Wong Sun v. United States, 371 U.S. 471

— . tenet iin iaiaiaiitiindadiie 90

Ybarra v. Illinois, 444 U.S. 85 (19799 21, 26, 27

Constitution and statutes:

US. Const. Amend. IV. . eee passim

3) 8, 9, 10, 16, 17, 21, 28-29

Wis. Stat. Ann. (West 1989):

FRIIS RII SE aU Rane FE Lew a ere 3

1 3

Miscellaneous:

A. Blumstein, Youth Violence, Guns, and the

Illicit-Drug Industry, H. John Heinz III

School of Public Policy and Management,

Carnegie Mellon Univ. Working Paper Series

— . 13

Bureau of Justice Statistics, U.S. Dep't of Justice,

Drugs, Crime, and the Justice System: A Nation-

V ⁰¼ůZm 14

FBI Legal Handbook for Special Agents (1994) 10

Goldstein, Drugs and Violent Crime, in Pathways

to Criminal Violence (N. Weiner & M. Wolfgang

. 969—ñ̃ —————— 15

IX

Miscellaneous—Continued: Page

Mericli, The Apprehension of Peril Exception

to the Knock and Announce Rule—Part J.

16 Search & Seizure L. Rep. 129 (July 1989) 13

Restatement (Second) of Torts (1966) 16

Sheley, Drug Activity and Firearms Possession

and Use By Juveniles, 24 J. Drug Issues 363

——ͤĩ eee ee 13

In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-5955

STEINEY J. RICHARDS, PETITIONER

*.

STATE OF WISCONSIN

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether it is reason-

able for the police to enter a dwelling without a prior

announcement of their presence and purpose when execut-

ing a valid search warrant for evidence of drug trafficking.

Because the Court’s analysis and resolution of that ques-

tion is likely to affect the admissibility of evidence offered

in federal criminal prosecutions, the United States has an

interest in this case.

STATEMENT

1. During the week of December 22, 1991, an informant

advised Detective Richard Pharo of the Madison, Wiscon-

sin, Police Department that at least four black males from

the Detroit area were trafficking in drugs at the “Motel 6”

in Madison, where they were registered as guests. J.A. 3-

5. Investigating that lead, Detective Pharo found that four

black males were at the motel and that they had frequently

(1)

2

refused maid service, had paid in cash for the rooms, and

had made and received numerous telephone calls. J.A. 5.

Detective Pharo learned that one of the four men had

registered under petitioner’s name and had given his ad-

dress as 11415 Sorrello, Detroit, Michigan. J.A.6. He also

learned that petitioner had been previously arrested while

in possession of 63 packets of cocaine. Ibid. On December

28, the four men checked out of the Motel 6. The same

day, petitioner checked into a Ramada Inn under his own

name, paying in cash for the room through January 4, 1992.

J.A. 7.

Based on the above information, the Madison Police ob-

tained a warrant to search Room 138 of the Ramada Inn for

evidence of drug trafficking. J.A. 8-10. The state court

judge issuing the warrant, however, declined to authorize

an unannounced entry. J.A. 9, 42.

The police executed the warrant at 3:40 a.m. on Decem-

ber 31, 1991. J.A. 18, 25, 37-38. Detective Pharo, wearing a

Ramada Inn shirt, attempted to gain entry to Room 138 by

ruse. J.A. 27. Three police officers, one of whom was in

uniform, stood to the right of Detective Pharo; two offi-

cers in plain clothes stood to his left. Three other officers

stationed themselves in a room directly across the hall

from Room 138. J.A. 39.

Detective Pharo knocked on the door of Room 138 and,

when someone inside the room asked who it was, stated

that he was a maintenance man. J.A. 27, 39-40, 42. Peti-

tioner opened the door about one and one-half inches,

looked at Detective Pharo, and then looked over Pharo’s

shoulder towards the police officer in full uniform who was

standing three to four feet to the right of Pharo; peti-

tioner’s face registered surprise. J.A. 38, 41. Petitioner

slammed the door. J.A. 39. Detective Pharo, yelling

“police officer,” grabbed the doorknob and unsuccessfully

attempted to swing the door open; as he did so, he heard the

door being bolted. J.A. 39, 41, 44. Detective Pharo heard

3

another officer yell “police officer,” and possibly heard

someone yell it again after that. J.A. 40, 44. Detective

Pharo and another officer kicked the door, but the door did

not move. J.A. 39, 44-45. When there was no response from

anyone inside the room, Officer Peregoy came from the

room across the hall and forced the door open with his

shoulder. J. A. 39, 44-45, 66. As the door opened, Detective

Pharo heard the sound of glass breaking. J.A. 39.

Officers entered the room just as petitioner was jump-

ing through a closed window into the courtyard of the

Ramada Inn. J.A. 19-20. Another individual, Jerel Dates,

was present in the room. J.A. 28. The officers found two

plastic bags hidden above a ceiling tile in the bathroom.

J.A. 20, 30. One bag contained approximately $3,000 cash;

the other bag contained two socks inside which were hid-

den several baggies. Some of the baggies contained large

chunks of cocaine base; others contained over 100 zip-loc

gem packs containing cocaine base. J.A. 11-12, 20-21.

Officers also found a box of sandwich baggies on a night-

stand between the two beds, and papers containing names,

telephone numbers, and numeric notations, which appeared

to be drug balance sheets. J.A. 11, 22, 31.

2. An information was brought against petitioner by

the State of Wisconsin, charging him with possession of

cocaine base with intent to deliver it, in violation of Wis.

Stat. Ann. § 161.41(1m) (West 1989); and with a violation of

Wisconsin’s tax stamp statute. Wis. Stat. Ann. § 139.95(2)

(West 1989). J.A. 13-17. Petitioner moved to suppress the

evidence seized from his hotel room on the ground, inter

alia, that the officers executing the warrant failed to

identify themselves and their purpose before entering and

failed to allow him time to open the door. J.A. 35-36.

At the preliminary hearing and, later, at the hearing

conducted on the motion to suppress, the officers execut-

ing the warrant testified to the facts described above. J.A.

18-32, 37-45, 64-69. Petitioner disputed the officers’ testi-

4

mony. He testified that in the early morning hours of De-

cember 31, 1991, someone knocked at the door of his motel

room and, in response to petitioner’s inquiry, identified

himself as the maintenance man. J.A. 45-46. Petitioner

claimed that as he opened the door, Detective Pharo, who

was wearing a Ramada Inn shirt, hit the door, trying to

push it in. In response, petitioner said he slammed the

door shut. J.A. 46. Petitioner further testified that when

he looked out the door, he had not seen any uniformed

police officers. J.A. 47. Petitioner denied that the police

had announced their identity and purpose before entering

the room; according to him, the officers announced their

identity only after entering the room, by which time he

was jumping out the window. J.A. 47-48.

The trial court denied the motion to suppress. J.A. 55-

56. The court credited the testimony of the officers and

discredited the testimony of petitioner, finding it to be

self-serving and lacking in credibility. In particular, the

court found that the officers had announced their presence

before entry. J.A. 54-55. The court further found that,

although the officers’ announcement of their presence and

the forced entry were “close to each other,” the officers

had allowed petitioner some opportunity to open the door

before entering the room. J.A. 55. The court observed

that, given the easy disposability of controlled substances,

the officers were not required “to stand around in the hall

forever.” Ibid.

The court also inferred from the evidence that peti-

tioner knew full well that it was the police seeking entry

into the room. The court explained that petitioner’s action

in bailling] out the window while all of this is going on

would lead someone of a suspicious nature to believe that

maybe he did not want Detective Pharo, the maintenance

man, to come in because he was aware that accompanying

Detective Pharo, even if he was the maintenance man, was

a uniformed police officer.” J.A. 54.

5

Following the denial of his motion to suppress, peti-

tioner pleaded no contest to the charges against him. He

was sentenced to 13 years’ imprisonment on the drug

count and to three years on the tax count. J.A. 70-71.

3. The Court of Appeals of Wisconsin affirmed. J.A. 73-

75. It relied on State v. Stevens, 511 N.W2d 591 (Wis.

1994), cert. denied, 115 S. Ct. 2245 (1995), in which the Wis-

consin Supreme Court held that police officers executing a

search warrant may always dispense with a knock and

prior announcement of their presence when the warrant

allows them to search for evidence of felony drug offenses.

4. The Wisconsin Supreme Court affirmed the trial

court’s denial of petitioner’s motion to suppress, conclud-

ing that the rule it announced in Stevens remained valid

under this Court’s decision in Wilson v. Arkansas, 115 8.

Ct. 1914 (1995). J. A. 76-97.' The court explained that

police may dispense with a prior announcement when they

have “exigent circumstances,” which it stated include a

reasonable belief that announcement of the police presence

would endanger the officers or result in the destruction of

evidence. J.A. 81. The court concluded that those two

factors are present in every case in which police officers

execute a warrant to search for evidence of felony drug

distribution violations. J.A. 81-82. According to the court,

the very facts supporting probable cause to believe that

drugs and drug dealers are present in a dwelling also lead

to the reasonable belief that exigent circumstances exist.”

J.A. 84.

The Wisconsin Supreme Court noted that this Court

in Wilson had expressly acknowledged that the Fourth

Although the trial court had found that the police announced their

presence before entering, the Wisconsin Supreme Court stated without

further comment that the police officers “did not knock and announce

prior to their entry.” J.A. 78. We analyze the case on the same basis

as did the Wisconsin Supreme Court.

6

Amendment announcement principle must yield to “coun-

tervailing law enforcement interests,” 115 S. Ct. at 1918-

1919, including the need to protect the officers’ safety and

to prevent the destruction of evidence. J.A. 85-86. The

court found no evidence that this Court in Wilson intended

to forbid a blanket recognition of those interests in a

category of cases. J.A. 85.

Justice Abrahamson concurred in the judgment. J.A. 97-

109. She found sufficient facts in this case to justify an

unannounced and forced entry, but argued that the court

erred in reaffirming a blanket rule allowing police to dis-

pense with the announcement requirement in all felony

drug cases. J.A. 99-109.

SUMMARY OF ARGUMENT

This Court’s decision in Wilson v. Arkansas, 115 S. Ct.

1914 (1995), established that it may be unreasonable under

the Fourth Amendment for officers executing a search

warrant not to knock and announce their purpose and

authority before entering a dwelling. The Court’s deci-

sion in Wilson also established that officers may dispense

with a pre-entry knock and announcement when an imme-

diate entry is justified by the need (among other things) to

protect officer safety or to prevent the destruction of

evidence. Based on its understanding of those principles,

the Supreme Court of Wisconsin held that the execution of

a search warrant for evidence of drug trafficking always

presents a sufficient risk of violence or destruction of

evidence to justify immediate entry without a knock or

announcement. Petitioner asserts, in contrast, that the

reasonableness of an immediate entry turns on whether

the executing officers have particularized knowledge that

the individuals in the dwelling pose a specific risk of

violence or destruction of evidence.

In our view, neither of those two approaches is correct.

We submit that a police officer is ordinarily justified in

7

believing, based on the fact that he has a warrant to search

for evidence of drug trafficking, that advance notice to the

occupants of the dwelling would create a significant risk of

violence or destruction of evidence. The reasonableness of

that belief is base on the experience of the police and

courts in a myriad of drug trafficking cases, in which the

close association between powerful firearms and violence,

on the one hand, and drug trafficking, on the other, has

been exhaustively detailed. It is also based on the equally

consistent experience of the police and courts with drug

traffickers, who can be expected to attempt to get rid of

their easily disposable wares if given a short grace period

before the police enter with a search warrant. Accord-

ingly, because execution of a drug trafficking search

warrant carries a significant risk of violence and potential

for destruction of evidence, it is ordinarily reasonable for

police officers to dispense with a pre-entry knock and

announcement. Where, however, police officers know suf-

ficient facts to make the ordinary inferences of dangerous-

ness and destruction of evidence un reasonable in a given

case, they may not rely on those risks to justify an un-

announced entry.

Petitioner. suggests that officers must have case-

specific information about a particular risk of violence or

likely destruction of evidence before they may make an un-

announced entry. That suggestion vastly overstates the

degree of certainty needed to justify police action under

the Fourth Amendment’s general requirement of reason-

ableness. In most cases, the executing agent’s knowledge

that the case involves a search for evidence of drug

trafficking itself justifies a case-specific belief that an

announcement before entry will create a risk of danger or

destruction of evidence. No more is necessary to satisfy

the requirement of reasonableness that governs the

Fourth Amendment inquiry. The heightened showing of

specificity proposed by petitioner not only is unrealistic,

8

but it would deprive officers of the benefit of inferences

drawn from a vast body of experience with the risks in

executing drug trafficking search warrants.

In this case, the police officers had ample reason to infer

a significant risk of violence or destruction of evidence if

they provided a grace period to petitioner before entry into

his motel room. There is nothing in the record in this

case to suggest that those inferences were incorrect or to

make them unreasonable under the circumstances of this

case. Accordingly, entry into petitioner's motel room

without a prior knock and announcement was reasonable

under the Fourth Amendment.

ARGUMENT

THE IMMEDIATE ENTRY OF PETITIONER’S

MOTEL ROOM TO EXECUTE A VALID NARCOT-

ICS SEARCH WARRANT WAS REASONABLE

A. Although The Common Law Rule Of Announcement Is

An Aspect Of The Fourth Amendment's Reasonable-

ness Requirement, An Unannounced Entry May Be

Valid If It Is Supported By Sufficient Justification

The common law generally required that officers, before

entering a person’s dwelling, knock on the door and an-

nounce their identity and purpose. Wilson v. Arkansas,

115 S. Ct. 1914, 1916-1918 (1995); Miller v. United States,

357 U.S. 301, 313 (1958). The common law also required

that officers not enter a home forcibly until their request

to enter had been actually or constructively refused. 2 W.

LaFave, Search and Seizure § 4.8(c), at 606-610 (3d ed.

1996); Miller, 357 U.S. at 308. Most States have enacted

variants of the common law rule. See Wilson, 115 S. Ct. at

1917; Miller, 357 U.S. at 308. Congress has also embodied

that rule in the federal knock-and-announce statute, en-

acted in 1917 and codified today at 18 U.S.C. 3109. That

statute permits a federal officer to enter a home forcibly if,

9

after giving “notice of his authority and purpose,” he is

“refused admittance.”

In Wilson v. Arkansas, this Court held that the common

law knock-and-announce principle forms “an element of

the reasonableness inquiry under the Fourth Amend-

ment” and that “in some circumstances an officer’s unan-

nounced entry into a home might be unreasonable under

the Fourth Amendment.” 115 S. Ct. at 1918. At the same

time, the Court emphasized that 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.” bid. Al-

though the Court declined to “attempt a comprehensive

catalog,” id. at 1919, of all of the factors that could out-

weigh “the presumption in favor of announcement,” id. at

1918, the Court noted, by way of example,.that an unan-

nounced entry may be justified “under circumstances

presenting a threat of physical violence”; “where a pri-

soner escapes * * * and retreats to his dwelling”; and

“where police officers have reason to believe that evidence

would likely be destroyed if advance notice were given.”

Id. at 1918-1919.

® Section 3109 provides: “The officer may break open any outer or

inner door or window of a house, or any part of a house, or anything

therein, to execute a search warrant, if, after notice of his authority and

purpose, he is refused admittance or when necessary to liberate himself

or a person aiding him in the execution of the warrant.” Although the

statute refers only to search warrants, its criteria apply as well to the

execution of arrest warrants. Sabbath v. United States, 391 U.S. 585,

588-589 (1968); Miller, 357 U.S. at 306; Wong Sun v. United States, 371

U.S. 471, 482-484 (1963).

10

B. Protecting The Safety Of Police Officers And Pre-

venting The Destruction Of Evidence Are Sufficient

Justifications For An Unannounced Entry

1. There is no serious dispute between the parties in

this case that there are circumstances in which the first

and the third of the justifications mentioned by the Court

in Wilson—protecting against violence and preventing the

destruction of evidence—make it reasonable for police

officers to enter a dwelling without a pre-entry knock or

announcement.

Petitioner does not dispute that the need to protect

officer safety and to preserve evidence can provide justi-

fications for dispensing with a pre-entry knock or an-

nouncement, as this Court stated in Wilson. To the

contrary, petitioner concedes that where officers can

“point to specific and articulable facts which justify their

entering without announcement under any of the recog-

nized exceptions to knock-and-announce,” they may con-

stitutionally make an unannounced entry. Pet. Br. 44-45.

3 The issue in this case concerns the circumstances in which the

police may dispense with a pre-entry knock, announcement, and brief

pause while the occupants of the dwelling are given the opportunity to

open the door. Even in cases in which police may enter immediately, it

may be reasonable for them to announce their identity and purpose

simultaneously with entry. Federal agents, for example, virtually al-

ways announce their presence when executing a search warrant by

demanding entry with language such as “FBl—we have a warrant to

search your apartment—open the door.” Even when officers do not

believe that they can afford to delay the entry, an announcement

simultaneous with entry alerts the occupants to the presence of federal

officials, and thereby reduces the risk that the agents will be mistaken

for intruders. The FBI's policy in applying Section 3109, however,

states that “[wJhere the Agent executing the warrant reasonably be-

lieves that by the announcement he/she will place himself/herself or

other persons within [the] premises in imminent peril of bodily harm,”

entry may be accomplished without announcement. See FBI Legal

Handbook for Special Agents §§ 5-2.2.2, 5-2.2.3(1) (1994).

1

The substance of petitioner’s argument is that this deter-

mination must be made on a case-by-case basis. See also

ACLU, et al., Amicus Br. 21-29.

The Supreme Court of Wisconsin similarly recognized

that “an extremely high risk of serious if not deadly

injury to the police as well as the potential for the disposal

of drugs by the occupants” may justify an entry without a

prior knock and announcement. J.A. 76-77. The court

disagreed with petitioner's view, however, that those

factors must be evaluated with a high degree of specificity

in each case. The court instead held that those “exigent

circumstances are always present in the execution of

search warrants involving felonious drug delivery,” J.A.

76, and that a blanket exception to the knock-and-announce

rule in such cases was therefore warranted.

2. Because the question whether officers executing a

warrant may dispense with a prior knock and announce-

ment is “an element of the reasonableness inquiry under

the Fourth Amendment,” Wilson, 115 S. Ct. at 1918, it

must be resolved by balancing “the nature and quality of

the intrusion on the individual’s Fourth Amendment inter-

ests against the importance of the governmental interests

alleged to justify the intrusion.” Tennessee v. Garner, 471

U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S.

696, 703 (1983)); Maryland v. Buie, 494 U.S. 325, 331 (1990);

United States v. Villamonte-Marquez, 462 U.S. 579, 588

(1983). The result of that balancing, in our view, is a rejec-

tion of both the Wisconsin Supreme Court’s determination

that law enforcement interests are “always” paramount in

this situation and petitioner’s position that the evidence

must be assessed in each case to determine whether the

officers executing the warrant had knowledge particular

to that case that would justify dispensing with a pre-entry

announcement. Rather, in our view, the possession of a

narcotics search warrant is ordinarily sufficient to make

it reasonable for officers to enter without a knock and

12

prior announcement. But there may be cases where that

is not so, and in such cases, an unannounced entry would

be unreasonable.

C. Officer Safety Generally Provides A Basis For An

Unannounced Entry In Drug Trafficking Cases

1. This Court has frequently noted the “weighty inter-

est in officer safety,” Maryland v. Wilson, No. 95-1268

(Feb. 19, 1997), slip op. 4, and has held that that interest is

sufficient to render reasonable many police intrusions on

Fourth Amendment interests. Even when there is less

than absolute assurance that a particular situation would

threaten officers’ safety, this Court has recognized that

the powerful interest in officer security makes it reason-

able for officers to take protective actions.

For example, in Maryland v. Wilson, the Court held

that the “legitimate and weighty” interest in officer

safety, slip op. 3, was sufficient to justify police officers in

requiring passengers to get out of a car that has been

stopped for a traffic violation. The Court did not require

absolute certainty that there would be a threat to officer

safety in each instance; instead, the Court relied on the

fact that “traffic stops may be dangerous encounters,” id.

at 4 (emphasis added), and that the “danger to an officer

from a traffic stop is likely to be greater when there are

passengers in addition to the driver in the stopped car,” id.

at 6 (emphasis added). The Court has similarly noted in a

variety of other contexts that a threat—though not nec-

essarily a certainty—of danger to police officers may

justify Fourth Amendment intrusions. See Buie, 494 U.S.

at 336 (“protective sweep” of house justifiable based on

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

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

justify protective searches when police have a reasonable

belief that the suspect poses a danger”); Michigan v.

Summers, 452 U.S. 692, 702-703 (1981) (“interest in mini-

~

13

mizing the risk of harm to the officers” justifies detaining

occupant of premises while search is conducted); Penn-

sylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam)

(relying on the “inordinate risk confronting an officer” to

justify requirement that driver exit car in a traffic stop);

United States v. Robinson, 414 U.S. 218 (1973) (search of

arrestee for weapons permissible, regardless of whether

there is reason to believe arrestee is armed or dangerous);

Chimel v. California, 395 U.S. 752, 763 (1969) (search

incident to arrest justified on ground that without search

“officer’s safety might well be endangered”). As the Court

stated in Terry v. Ohio, 392 U.S. 1. 28 (1968), “{cJertainly it

would be unreasonable to require tha. police officers take

unnecessary risks in the performance o their duties.”

2. An officer who prepares to enter a dwelling of a sus-

pected drug trafficker to execute a search warrant faces

an unusually acute risk of violence. There is a significant

possibility that persons inside will be armed and that the

premises will have been fortified in anticipation of a police

raid. See Mericli, The Apprehension of Peril Exception

to the Knock and Announce Rule—Part I, 16 Search &

Seizure L. Rep. 129, 129-130 (July 1989). Indeed, the

courts have frequently recognized that there is a well-

the

tion owned a firearm and 83% of those who had sold drugs had fired a

gun at someone).

14

Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989).° And the guns

that drug traffickers prefer are often machine guns and

other heavy weaponry that pose the greatest danger to

police officers and bystanders. See, e.g., United States v.

Kirk, No. 94-50472, 1997 WL 40602, at *9 n.1 (5th Cir. Feb.

3, 1997) (en banc) (opinion of Higginbotham, J.) (citing 29

recent federal appellate cases).

Once an officer has announced his intention to enter a

home to execute a search for contraband or to make an

arrest, the drug trafficker has a heightened incentive to

prevent the officer from attaining those goals. See Bureau

of Justice Statistics, U.S. Dep’t of Justice, Drugs, Crime,

and the Justice System: A National Report 5 (Dec. 1992)

(“To avoid being arrested and punished for trafficking,

drug dealers commit violent crimes against police and

threaten informants or witnesses.”). Accordingly, “the

5 See also United States v. Hromada, 49 F.3d 685, 689 & n.8 (11th

Cir. 1995) (“Guns and violence go hand-in-hand with itlegal drug

operations.”); United States v. Golter, 880 F.2d 91, 94 (8th Cir. 1989)

(noting the “well recognized nexus between drugs and firearms”);

United States v. Gahagan, 865 F.2d 1490, 1499 (6th Cir.), cert. denied,

492 U.S. 918 (1989); United States v. Cruz, 805 F.2d 1464, 1474 (11th

Cir. 1986) (Gluns are a tool of the drug trade. There is a frequent and

overpowering connection between the use of firearms and narcotics

traffic.”), cert. denied, 481 U.S. 1006 & 482 U.S. 930 (1987); United

States v. Payne, 805 F.2d 1062, 1065 (D.C. Cir. 1986) (“{Slubstantial

dealers in narcotics possess firearms and * * * such weapons are as

much tools of the trade as more commonly recognized drug parapherna-

lia“), United States v. Grant, 545 F.2d 1309, 1313 (2d Cir. 1976) (taking

judicial notice that “substantial dealers in narcotics keep firearms on

their premises as tools of the trade”), cert. denied, 429 U.S. 1103 (1977);

United States v. Wiener, 534 F.2d 15, 18 (2d Cir.) (noting that large

scale drug dealers typically keep firearms at their base of operations as

a tool of the trade), cert. denied, 429 U.S. 820 (1976); accord United

States v. Singer, 943 F.2d 758, 762-763 (7th Cir. 1991); State v. Stevens,

511 N.W.2d 591, 596-597 (Wis. 1994), cert. denied, 115 S. Ct. 2245 (1995),

Commonwealth v. Rodriguez , 614 N.E.2d 649, 651 (Mass. 1993); State v.

Stalbert , 783 P.2d 1005, 1007 (Or. Ct. App. 1989).

15

law has uniformly recognized that substantial dealers in

narcotics possess firearms” and that “entrance into a

situs of drug trafficking activity carries all too real dan-

gers to law enforcement officers.” United States v.

Kennedy, 32 F.3d 876, 882-883 (4th Cir. 1994) (internal

quotation marks omitted; citing cases), cert. denied, 115 S.

Ct. 939 (1995).

Because drug dealers are so heavily armed and are so

frequently willing to use their weapons to protect their

illegal operations, this Court has recognized the risks of

executing search warrants in narcotics trafficking cases.

As the Court explained in Michigan v. Summers, 452 U.S.

at 702-703 (footnote omitted): The execution of a war-

rant to search for narcotics is the kind of transaction that

may give rise to sudden violence or frantic efforts to con-

ceal or destroy evidence. The risk of harm to both the

police and the occupants is minimized if the officers

routinely exercise unquestioned command of the situa-

tion.“ See also Harmelin v. Michigan, 501 U.S. 957, 1003

(1991) (Kennedy, J., concurring in part and concurring in

judgment) (“Studies * * * demonstrate a direct nexus

between illegal drugs and crimes of violence.”) (citing

Goldstein, Drugs and Violent Crime, in Pathways to

Criminal Violence 16-48 (N. Weiner & M. Wolfgang eds.

1989)); National Treasury Employees Union v. Von Raab,

489 U.S. 656, 669 (1989).

3. In light of those risks of violence, a police officer

may reasonably take steps, such as dispensing with pre-

entry announcement or delay following announcement, to

protect himself and lessen the overall risk of violence

while executing a search warrant for evidence of drug

trafficking. Indeed, giving the occupants a grace period

during which they may prepare a violent response to the

inevitable entry can increase the overall likelihood of vio-

lence and the resulting risk of injury to officers, by-

standers, and the occupants themselves. On the other side

16

of the scale, when the entering officers have a warrant to

enter a home, the occupants’ privacy interest is neces-

sarily limited to the brief interval between the officers’

announcement and their entry. Given the weighty inter-

est in officer safety and the necessarily limited privacy

interest of the occupants of the dwelling, the fact that

ice officers are entering the home of a suspected drug

trafficker is thus ordinarily sufficient to warrant a rea-

sonable belief that the officers will face a significant risk

of violence, and therefore to justify dispensing with a pre-

entry announcement.“

Because the Fourth Amendment standard is an objec-

tive one, see, e.g., Whren v. United States, 116 8. Ct. 1769

(1996), the principle that drug traffickers are dangerous

(and that they are likely to destroy evidence if given the

opportunity, see pp. 18-23, infra) holds true whenever the

police are éxecuting a drug trafficking search warrant and

6 The lower courts interpreting Section 3109 have generally rec-

ognized that it is reasonable to forgo announcement (or to enter simul-

taneously with announcement) when a reasonable basis exists to be-

lieve that advance notice of an entry would place the officers or others

in peril. See, e.g., United States v. Hudson, 100 F.3d 1409, 1417 (9th

Cir. 1996); Kennedy, 32 F.3d at 882-883 (entry immediately after an-

nouncement); United States v. Streeter, 907 F.2d 781, 788-789 (8th Cir.

1990) (entry five to ten seconds after announcement), United States

v. Nabors, 901 F.2d 1351, 1354 (6th Cir.) (entry immediately after

announcement), cert. denied, 498 U.S. 871 (1990); Bonner, 874 F.2d at

826 (entry 11-12 seconds after announcement); United States v. Spinelli,

848 F.2d 26, 30 (2d Cir. 1988) (unannounced entry); United States v.

Kane, 637 F.2d 974, 978-980 (3d Cir. 1981) (unannounced entry); United

States v. Whitney, $33 F.2d 902, 905, 908-911 (9th Cir. 1980) (entry

“(within seconds” of announcement), cert. denied, 450 U.S. 1004 (1981);

United States v. Artieri, 491 F.2d 440, 442, 444 (2d Cir.) (entry three

seconds after announcement), cert. denied, 417 U.S. 949 & 419 U.S. 878

(1974); see also Restatement (Second) of Torts § 206 emt. d, at 387

(1965); Read v. Case, 4 Conn. 166, 170 (1822) (recognizing a common

law “peril to officers” exception).

17

do not know of facts that negate it. Therefore, no further

purpose would be served by requiring officers in each case

to show that the likely occupants of the dwelling pose a

particularly high risk of violence, a showing that will

rarely be available; the fact that the occupants are sus-

pected drug traffickers or their accomplices is ordinarily

sufficient to warrant a reasonable officer to fear a signifi-

cant threat to his safety. Nor would it serve any purpose

to require the government to prove that general point in

each case; the broad experience of the police and courts in

this area is sufficient to support the reasonableness of

that generalization.

There may be particular cases, however, in which the

police are aware of facts that are sufficient to negate the

general principle that entering the home of a drug

trafficker poses a significant risk of violence. If there are

such facts in a particular case that make it unreasonable

for an officer to fear a significant risk of violence, then an

unannounced entry in that case would not be justifiable on

that basis under the Fourth Amendment. If, for example,

officers know that the persons suspected of drug traffick-

ing were not present within the building at the time of the

entry and they have no other reason to believe that the

persons inside presented a risk of danger, an unannounced

entry based on a fear of peril would be unreasonable. It

would also be unreasonable to make an unannounced entry

on grounds of possible peril where the officers had reliable

and uncontradicted information (i.e., from an informant)

that the persons were unarmed. Compare Sabbath v.

United States, 391 U.S. 585, 591 (1968) (exigency exception

to Section 3109 inapplicable where “agents had no basis for

assuming petitioner was armed or might resist arrest”).

But otherwise, given the common possession of firearms

by drug traffickers and the high risk of violence in police

encounters with them, law enforcement officers have a

reasonable basis for anticipating danger in cases involving

18

narcotics traffickers, and the Constitution does not

prevent the officers from using the element of surprise to

minimize that danger.

D. Preservation Of Evidence Generally Provides A

Basis For An Unannounced Entry In Drug Trafficking

Cases

Analogous principles hold true for destruction of evi-

dence. An officer entering a dwelling to execute a search

warrant for evidence of drug trafficking encounters a

heightened risk that the target of the search will dispose

of the drugs during the time between announcement and

entry. Drugs generally take up small volumes in relation

to their value, and they are usually easily and quickly

disposable through plumbing fixtures, windows, and other

means. For that reason, there is an inherent risk that a

drug dealer who hears a police knock and announcement

will immediately dispose of drugs while police officers are

waiting for admittance—or, more likely, refusal of admit-

tance—into the dwelling.

In Ker v. California, 374 U.S. 23 (1963), a plurality of

this Court accepted that the risk of destruction of drugs

would justify an unannounced entry. The plurality ex-

plained that the unannounced entry into a drug suspect’s

home was reasonable because the drugs “could be quickly

and easily destroyed.” Id. at 40. The plurality adverted to

an officer’s testimony that, in his experience, “on ‘many,

many occasions’ * * * ‘(narcotics suspects] have flushed

7 It would not undercut the reasonableness of the officers’ belief to

show that, unbeknownst to the officers in a particular case, the occu-

pants of the dwelling were not in fact prepared to use violence. “It goes

without saying that in determining the lawfulness of entry oe? we

may concern ourselves only with what the officers had reason to be-

lieve at the time of their entry.” Ker v. California, 374 U.S. 23, 40 n.12

(1963) (plurality opinion); cf. Illinois v. Rodriguez, 497 U.S. 177, 186

(1990).

19

narcotics down toilets, pushed them down drains and sinks

and [used] many other methods of getting rid of them prior

to my entrance. Id. at 28 n.3.5

The likelihood noted by the Ker plurality that a suspect

will attempt hurriedly to dispose of narcotics evidence on

learning that police are about to enter his dwelling is by

now established beyond serious question.“ That tendency

8 In Chimel v. California, similar principles underlay the Court's

holding that whenever an arrest is undertaken, “it is entirely rea-

sonable for lan] arresting officer to search for and seize any evidence on

the arrestee’s person in order to prevent its concealment or destruc-

tion.” 395 U.S. at 763. The Court did not require a certainty that the

evidence would be destroyed in order to justify the search, nor has the

Court required proof that the particular arrestee was likely to conceal

or destroy evidence. Because the context of an arrest inherently

creates a threat that the arrestee will conceal or destroy evidence,

a search of the arrestee’s person satisfies the Fourth Amendment's

“reasonableness” command.

See, e. g., United States v. Buford, No. 96-8244, 1997 WL 73662, at

*1 (8th Cir. Feb. 24, 1997) (officer executing search warrant “saw an

arm come through the corner of window screen and toss a clear plas-

tie ‘baggie’ onto a truck below”); United States v. Mitchell, 64 F.3d

1105, 1111 (7th Cir. 1995) (noting defendant’s “attempt to throw the

briefcase [containing crack cocaine and marijuana] out of the window”

before his arrest), cert. denied, 116 S. Ct. 1549 (1996); United States v.

Melendez , 60 F.3d 41, 45 (2d Cir.) (officers stationed outside while ar-

rest warrant executed saw “a loaded machine gun, a box of ‘Absolute’

heroin, and a drug record” thrown out of the window), cert. denied, 116

S. Ct. 258, 429 (1995), cert. granted and judgment vacated on other

grounds, 116 S. Ct. 900 (1996); United States v. Lindsey, 47 F.3d 440,

443 (D.C. Cir.) (officers “recovered a plastic vial containing crack

cocaine from the ground outside the apartment” which police “observed

being thrown from the apartment by [defendant]”), vacated on other

grounds, 116 S. Ct. 665 (1995); United States v. King, 36 F.3d 728, 732-

733 (8th Cir. 1994) (officers executing search warrant observed defen-

dant “throw[ing] drugs out of the house” and “throwing la] gun out of

the window”), cert. denied, 115 S. Ct. 954 (1995); United States v.

Simms, 18 F.3d 588, 592 (8th Cir. 1994) (defendant saw police and then

“threw an opened package containing cocaine base out a window”);

20

is reflected in the numerous decisions that recount sus-

pects flushing or pouring powdery, granular, leafy, and

liquid narcotic substances down various indoor plumbing

facilities as police enter or prepare to enter." Thus, the

United States v. Rosa, 11 F.3d 315, 326 (2d Cir. 1993) (officers waiting

outside while search warrant was executed “saw plates containing a

white powder believed to be heroin being thrown out the window”),

cert. denied, 511 U.S. 1042 & 114 S8. Ct. 1864 (1994); United States v.

Jackson, 990 F.2d 251, 252 (6th Cir. 1998) (agents executing search

warrant “found a bag containing * * * crack cocaine outside an

apartment window”); United States v. Hale, 977 F.2d 455, 456 (8th Cir.

1992) (defendant “threw * * * cocaine and money out the window”

when police arrived to execute search warrant).

© See, e., Wilson v. Arkansas, 115 S. Ct. at 1916 (defendant found

“in the bathroom, flushing marijuana down the toilet”); United States

v. Bauer, 84 F.3d 1549, 1553 (9th Cir.) (when police searched defen-

dant's home, “she was flushing marijuana down the toilet”), cert.

denied, 117 S. Ct. 267 (1996), Nos. 96-7179, 96-7220, 96-7223, 96-7226,

96-7303 (Feb. 18, 1997); United States v. Birbal, 62 F.3d 456, 458 (2d

Cir. 1995) (defendant found “flushing cocaine down a toilet as police

executed a search warrant in his home”); United States v. Lucien, 61

F.3d 366, 375 (5th Cir. 1995) (defendant “was flushing [cocaine base]

down the toilet when the police arrived”); Wigglesworth v. Oregon, 49

F.3d 578, 579-580 (9th Cir. 1995) (lab report showed “presence of cocaine

in water [defendant] was flushing down a sink drain when she was

arrested”); United States v. McMillon, 14 F.3d 948, 954 (4th Cir. 1994)

(police “encountered [defendant] flushing some items down the toilet,”

which defendant stated “were cocaine”); United States v. Johnson, 12

F.3d 827, 880 (8th Cir.) (defendant “found flushing crack cocaine and

methamphetamine down a toilet” when police arrived to execute search

warrant), cert. denied, 511 U.S. 1095 (1994); United States v. Kenyon, 7

F.3d 788, 784 (8th Cir. 1993) (before officers could enter dwelling to

execute search warrant, defendant “disposed of an estimated nine

ounces (255 grams) of cocaine by flushing it down a toilet”); United

States v. Carr, 939 F.2d 1442, 1447 (10th Cir. 1991) (officer apprehended

defendant “in the bathroom pouring a bottle of PCP into the toilet”);

United States v. Roberts, 913 F.2d 211, 219 (5th Cir. 1990) (officer

“recovered numerous small baggies of cocaine found flushing in the

toilet” of dealer’s dwelling), cert. denied, 500 U.S. 955 (1991); United

States v. Baker, 907 F.2d 53, 54 (8th Cir. 1990) (officer executing

21

actual experience in narcotics cases confirms what com-

mon sense would suggest: II]t is a common practice for

drug dealers to attempt to destroy the drug evidence when

they are alerted to an imminent police search.” United

States v. Carter, 999 F.2d 182, 186 n.5 (7th Cir. 1998).

Based on the significant risk that a drug dealer who has

a few moments of grace before a police entry will employ

them to destroy evidence, the vast majority of courts of ap-

peals have held that such a risk is an “exigent circum-

stance” sufficient to justify full or substantial noncompli-

ance with Section 3109." That has been so not only in the

warrant “saw [defendant] coming out of a bathroom and heard a toilet

flushing,” then retrieved a “brick of cocaine from the commode”):

United States v. Smith, 887 F.2d 104, 105 (6th Cir. 1989) (officers

executing warrant “discovered defendant attempting to flush cocaine

down the toilet”); United States v. Cordero, 860 F.2d 1034, 1036 (11th

Cir. 1988) (defendant “admits that, at the time of her arrest, ‘she had

destroyed a quantity of cocaine by flushing it down a toilet“).

" As noted above (see p. 16 n.6, supra), most federal courts of

appeals have held that “exigent circumstances’ may justify dispensing

with a prior announcement under either the Fourth Amendment or 18

U.S.C. 3109. The reference to “exigent circumstances,” however, can

cause confusion. “Exigent circumstances” is the phrase used to describe

the justification needed to dispense with a warrant altogether before

entering a dwelling. See Payton v. New York, 445 U.S. 573, 585-586

(1980); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970). In the context of an

unannounced entry, by contrast, the officers have ordinarily obtained a

warrant. Thus, a magistrate has already authorized the intrusion into

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

it would be “reasonable” within the meaning of the Fourth Amendment

to dispense with the knock-and-announce requirement. See Ybarra v.

Illinois, 444 U.S. 85, 104 (1979) (Rehnquist, J., dissenting) (“{I}n judging

the reasonableness of la] search pursuant to [a] warrant, we need not

measure it against jealously drawn exceptions to that requirement.”).

It stands to reason that an unannounced entry pursuant to a warrant

may be “reasonable” under circumstances that would not justify a

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

did not use the term “exigent circumstances” and stressed instead that

an unannounced entry need only meet a “flexible” reasonableness stan-

limited class of cases in which there is evidence unique to

the case either that drugs are likely to be destroyed on an

announcement or that such drugs, after an announcement,

are in fact being destroyed.” Instead, in numerous cases,

the courts of appeals have allowed entry without an an-

nouncement“ or entry simultaneous with or seconds after

an announcement, even though no evidence of likely de-

dard that weighs the relevant “law enforcement interests.” 115 S. Ct.

at 1918. See Bodine v. Warwick, 72 F.3d 393, 398 (3d Cir. 1995) (Wilson

adopts an overall standard of reasonableness that considers exigency as

a single factor).

2 See, e., Bonner, 874 F.2d at 825-826 (sounds of possible destruc-

tion heard); United States v. Allende, 486 F.2d 1351, 1353 (9th Cir.

1973) (sounds of scampering feet heard), cert. denied, 416 U.S. 958

(1974).

3 See, e g., United States v. Arias, 923 F 2d 1387, 1391 (9th Cir.) (un-

announced entry based on dual concern that occupants “might be de-

stroying evidence or arming themselves”), cert. denied, 502 U.S. 840,

876 (1991); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir.) (un-

announced entry based on knowledge of similar drug sites where an

announcement “would cause evidence to be destroyed before the officers

could surmount the anticipated hindrances to their entry”), cert. denied,

486 U.S. 1014 (1988); United States v. Garcia, 741 F.2d 363, 366 (11th

Cir. 1984) (announcement excused based on belief that suspect would be

“able to wash the cocaine down the sink in the kitchen or bathroom”),

United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (unannounced

entry where announcement “would have jeopardized the availability of

evidence (the cocaine) which the agents knew to be inside”), cert.

denied, 456 U.S. 935 (1982).

4 See, eg, Kennedy, 32 F.3d at 882 (entry immediately after an-

nouncement based on belief that “the experienced drug distributors

inside the house would attempt to destroy evidence unless the agents

acted quickly”); United States v. Markling, 7 F.3d 1309, 1318 (7th Cir.

1993) (entry seven seconds after announcement where suspect was

believed likely to flush cocaine down toilet); United States v. Garcia,

983 F.2d 1160, 1168 (ist Cir. 1998) (entry ten seconds after announce-

ment where occupants were “believed to possess cocaine, a substance

that is easily and quickly hidden or destroyed”); United States v.

Keene , 915 F.2d 1164, 1168-1169 (8th Cir. 1990) (entry immediately after

struction existed apart from the assumption that the sus-

pects in the home would conform to the tendency of narcot-

ies suspects to destroy such incriminating contraband if

they learn of an imminent entry.

Thus, in meeting the government’s burden to justify an

immediate no-announce entry, it is not necessary for the

police to have specific proof that destruction of evidence is

likely if entry is delayed. It is unrealistic to presume that

such evidence is ordinarily available. The fact that the

police officers are searching for drugs that are easily dis-

posable is sufficient to warrant a reasonable belief that the

officers will face a significant risk of destruction of evi-

dence if they allow a grace period to the occupants of the

dwelling. Where officers have such a reasonable belief, the

Fourth Amendment permits dispensing with a pre-entry

announcement; restrictions on the manner of execution of

a search warrant should not cost the police the very evi-

dence that is the object of the warrant. See, e.g., Segura v.

United States, 468 U.S. 796, 816 (1984) (idea of a con-

stitutional right’ to destroy evidence * * * defies both

logic and common sense”).

There may be particular cases, however, in which the

police are aware of facts that are sufficient to negate the

general risk that the occupants of the dwelling will dis-

pose of easily disposable drugs if advance notice is given

before police entry. If there are such facts in a particular

announcement based on fact that “persons who traffic in liquid narcotics

often attempt to dispose of them, i.e., by pouring them down a sink or

floor drain”), cert. denied, 498 U.S. 1102 (1991); Nabors, 901 F.2d at 1354

(entry immediately after announcement based on belief that suspect

had drugs “which could be easily disposed of”); United States v.

Nolan, 718 F.2d 589, 598 (3d Cir. 1993) (entry simultaneous with

announcement based on belief that suspects would flush narcotics down

toilet); United States v. Jackson, 585 F 2d 653, 662 (4th Cir. 1978) (entry

24

case that are sufficient to make it un reasonable for an

officer to fear the destruction of evidence, then an unan-

nounced entry in that case would not be justifiable under

the Fourth Amendment. If, for example, the officers knew

that the only person at home at the time of the search is

unconnected with the narcotics enterprise and that the

narcotics are packaged (i. e., in crates) so as to render

them nondisposable within a brief period of time, then

invocation of a destruction-of-evidence justification for an

unannounced entry would be unreasonable.

E. Petitioner's Objections To Immediate No-Knock

Entries In Narcotics Cases Are Without Merit

Petitioner and his amici curiae (Pet. Br. 38-40; Amici

Br. 10-12) argue that Wisconsin’s blanket rule does not

allow for a case-by-case determination of reasonableness.

The standard we propose, however, does so. It begins with-

the general principle, derived from the experience of

courts and police officers in a myriad of drug cases, that an

unannounced entry is ordinarily valid to execute a drug

trafficking search warrant.” Where it applies, the princi-

15 Officers executing a search warrant for evidence of drug traffick-

ing ordinarily have a greater quantum of proof bearing on the danger

posed by the occupants of the dwelling than did the officer in Terry v.

Ohio, 392 U.S. 1 (1968)—a case relied on by petitioner (Br. 40) as

establishing the kind of particularized suspicion that is necessary to

justify a Fourth Amendment intrusion. In Terry, this Court upheld a

stop of three men and the frisk of one of them based on their having

engaged in tactics that strongly suggested they “were contemplating a

daylight robbery—which, it is reasonable to assume, would be likely to

involve the use of weapons.” 392 U.S. at 28. The Court did not require

the officer conducting the frisk to point to any further suspicion that

that particular suspect actually had a gun, or that he might use it

against the officer during the course of the investigative detention.

Here, the warrant based on probable cause authorizing the search of

petitioner’s hotel room for evidence of drug trafficking supplied the

25

ple we advocate serves the salutary function of “estab-

lishling] [a] workable rule,” New York v. Belton, 453 U.S.

454, 460 (1981), that, “in most instances, makes it possible

to reach a correct determination beforehand as to whether

an invasion of privacy is justified in the interest of law

enforcement,” id. at 458. In cases where that principle

does not apply—where the police know of facts that negate

the inference of personal risk and likely destruction of evi-

dence that accompany the execution of warrants in drug

trafficking cases—the officers may not dispense with a

pre-entry announcement (unless, of course, other justi-

fications for entering without a prior announcement are

applicable on the facts of the given case).

Petitioner also asserts (Br. 38) that permitting the

police to dispense with pre-entry announcements in nar-

cotics cases would place absolute, unreviewable discretion

in the hands of the executing officers. If it is generally

reasonable for the officer to execute a narcotics search

warrant without a prior announcement, however, the

Fourth Amendment does not invalidate the officer’s deci-

sion to do so, even if particular officers might choose to

execute the warrant in a different manner. As this Court

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

“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 warrant—

subject of course to the general Fourth Amendment pro-

tection ‘against unreasonable searches and seizures.’” Id.

at 257 (footnote omitted). See also United States v. Stowe,

100 F.3d 494, 499 (7th Cir. 1996), petition for cert. pending,

No. 96-7439 (filed Jan. 14, 1997); Hummel-Jones v. Strope,

25 F.3d 647, 650 (8th Cir. 1994); United States v. Medlin,

842 F.2d 1194, 1196 (10th Cir. 1988). Police executing a

might be armed and dangerous.

search warrant are in the best position to determine

whether an announcement before entry would jeopardize

their safety as well as the safety of the occupants and, so

long as the officers remain within the bounds of Fourth

Amendment “reasonableness,” they may choose the means

that they believe are most likely to lessen the risk of

violence to all concerned. See J. A. 93."

s Amici ACLU, et al., also rely (Br. 16-18 & n.32, 23-24) on Mary-

land v. Buie, 494 U.S. 325 (1990), Mincey v. Arizona, 437 U.S. 385

(1978), and Ybarra v. Illinois, 444 U.S. 85 (1989), among others, for the

proposition that the presence of a warrant to search for evidence of

drug trafficking does not provide officers with the requisite particu-

larized suspicion to justify dispensing with the announcement require-

ment. Their reliance on those cases is misplaced.

In Buie, the Court held that officers executing a warrant to arrest a

robbery suspect at his home are entitled to conduct a limited protective

sweep only if articulable facts warrant the belief that “the area to be

swept harbors an individual posing a danger to those on the arrest

scene.” 494 U.S. at 334. The Court rejected the State’s argument that

no level of objective justification should be required because of the

dangers inherent in executing an arrest warrant for a violent crime.

The Court explained that “the existence of the arrest warrant implies

nothing about whether dangerous third parties will be found in the

arrestee’s house.” Id. at 335 n.2. The Court explicitly contrasted the

situation in Michigan v. Summers, 452 U.S. 692 (1981), where the pres-

ence of a search warrant “implied a judicial determination that police

had probable cause to believe that someone in the home was com-

mitting a crime.” 494 U.S. at 335 n.2. The instant situation is more

akin to Summers than Buie, since the search warrant constituted a

judicial determination that evidence of drug trafficking would be found

in the dwelling to be searched. Unlike in Buie, that fact does imply

that police officers executing the warrant will face a significant risk of

violence or destruction of evidence.

Similarly, in Ybarra, the Court held that a warrant to search a drug

tavern and its bartender for narcotics did not authorize the officers

executing the warrant to frisk a tavern patron absent reasonable suspi-

cion to believe the patron was armed and dangerous: “The ‘narrow

scope’ of the Terry exception does not permit a frisk for weapons on

less than reasonable belief or suspicion directed at the person to be

27

Petitioner notes (Br. 28-31) that some unannounced en-

tries have been undertaken when the occupants were not

threats. The Fourth Amendment, however, does not (and

cannot) require that officers always be correct. To satisfy

the Fourth Amendment, “what is generally demanded of

the many factual determinations that must regularly be

made by agents of the government * * * is not that they

always be correct, but that they always be reasonable.”

Illinois v. Rodriguez, 497 U.S. 177, 185-186 (1990); see also

Hill v. California, 401 U.S. 797, 804 (1971) (“sufficient

probability, not certainty, is the touchstone of reason-

ableness under the Fourth Amendment”). A rule re-

quiring the level of specificity of knowledge of danger

supported by petitioner would come only at an un-

acceptably high price: exposing officers to the peril that

comes when armed drug traffickers are given time to

mount an attack.

Amici ACLU, et al., argue (Br. 4-9) that the historical

record does not support the creation of blanket exceptions

to the knock-and-announce principle. Whatever the merits

of that position, however, the determination of whether the

risks inherent in executing warrants in drug trafficking

cases are sufficient to justify an unannounced entry must

be made by reference to the methods and means employed

by contemporary criminal suspects. In particular, the in-

creased firepower of modern weapons, as well as the in-

frisked, even though that person happens to be on premises where an

authorized narcotics search is taking place.” 444 U.S. at 94. Given

that the warrant here established probable cause to believe that peti-

tioner was trafficking in drugs, the police in this case had every rea-

son to believe that petitioner and any other occupants of the hotel

room might be armed and dangerous.

Finally, in Mincey, the Court merely held that the police may not

make a warrantless search of a murder suspect's home following his

arrest absent exigent circumstances. That holding sheds no light on

the instant case.

28

creased risks such weapons pose in the hands of drug traf-

fickers, must be taken into account in determining what is

reasonable under the Fourth Amendment. Cf. Tennessee

v. Garner, 471 U.S. 1, 14 (1985) (taking into account in

Fourth Amendment analysis changes since the time of

development of common law rules, “when weapons were

rudimentary” and when “[{djeadly force could be inflicted

almost solely in a hand-to-hand struggle”). This Court

“has not simply frozen into constitutional law those law

enforcement practices that existed at the time of the

Fourth Amendment’s passage.” Payton v. New York, 445

U.S. 573, 591 n.33 (1980). As this Court has observed:

“Crime has changed, as have the means of law enforce-

ment, and it would therefore be naive to assume that those

actions a constable could take in an English or American

village three centuries ago should necessarily govern

what we, as a society, now regard as proper.” Steagald v.

United States, 451 U.S. 204, 217 n. 10 (1981).

F. The Entry In This Case Complied With The Fourth

Amendment

The officers in this case acted reasonably. Because the

police officers were executing a search warrant for nar-

coties, it was reasonable for them to fear a significant risk

of danger and destruction of evidence if they gave prior

notice before entering petitioner’s motel room. There is

no basis on this record to challenge the police officers’

reasonable belief in the risks of danger or destruction of

evidence if petitioner or the other occupants of his motel

room were given advance notice of the raid. Accordingly,

the police were justified in entering without a prior

announcement."

7 This case does not present the question of the scope of any ex-

clusionary rule remedy for an unlawful entry to execute a valid

warrant. Although this Court has applied the exclusionary rule with-

out comment in cases governed by the statutory command of Section

29

CONCLUSION

The judgment of the Wisconsin Supreme Court should

be affirmed.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

MARK M RICHARD

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

MARCH 1997

3109, see Miller, 357 U.S. at 313-314; Sabbath, 391 U.S. at 586, the Court

has never addressed that issue under the Fourth Amendment. See

Wilson, 115 S. Ct. at 1919 n.4 (declining to reach the issue). In a vari-

ety of Fourth Amendment settings, however, this Court has recog-

nized that the exclusionary rule does not require suppression of evi-

dence that has been or would have been acquired by a lawful source

independent of a Fourth Amendment violation. See, e.g., New York v.

Harris, 495 U.S. 14, 18-19 (1990); Murray v. United States, 487 U.S.

533, 537 (1988); Segura, 468 U.S. at 813-816; Nix v. Williams, 467 U.S.

431, 443 (1984). Under that analysis, the exclusionary rule would not

mandate suppression in this case, since the drugs and other evidence

found in petitioner’s motel room were the fruits of a search conducted

pursuant to a valid warrant. Even if the mode of entry into the room

were illegal, any failure to knock and announce did not produce the

discovery of the evidence.