Petition for Writ of Certiorari — Illinois v. Marinez

In THe

Supreme Court of the Anited St

Octoser TERM, 1987

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

JIMMY AND MARIA MARINEZ,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

THIRD JUDICIAL DISTRICT

NEIL F. HARTIGAN

Attorney General, State of Illinois

TERENCE M. MADSEN *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2235

Counsel for Petitioner

JoHN X. BRESLIN

Deputy Director

Gary F. Gnipovec

Staff Attorney

State’s Attorneys

Appellate Prosecutor

628 Columbus Street, Suite 402

Ottawa, Illinois 61350

Of Counsel * Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

™ ——a ed

Sy Aer A ome

i

QUESTIONS PRESENTED FOR REVIEW

I.

In the absence of state legislation, does the fourth amend-

ment of the United States Constitution require a mechan-

ical knock and announce rule in order to render the ex-

ecution of a search warrant reasonable, or should a total-

ity of the circumstances approach be used?

II.

Assuming, arguendo, that some type of a knock and an-

nounce rule applies, after having knocked and announced,

were police required by the fourth amendment to stand

at the threshold of the open doorway and wait to be in-

vited in by the occupants?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .. i

TABLE OF AUTHORITIBG oo ones csnccccscs ili

og ere rer ee reer er er rrr ry 1

SREY RCRA Aes h hek ean sd en ee 2

CONSTITUTIONAL PROVISIONS AND

SEATUSES INVOLVED 2.055 ccescccsccesss

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI:

I.

IN THE ABSENCE OF STATE LEGISLATION,

THY; FOURTH AMENDMENT OF THE UNITED

STATES CONSTITUTION DOES NOT REQUIRE

A MECHANICAL KNOCK AND ANNOUNCE

RULE IN ORDER TO RENDER THE EXECU-

TION OF A SEARCH WARRANT REASON-

ABLE, BUT A TOTALITY OF THE CIRCUM-

STANCES APPROACH SHOULD BE USED IN-

a | eer err rer rer rey rr rr ror 7

II.

ASSUMING, ARGUENDO, THAT SOME TYPE

OF A KNOCK AND ANNOUNCE RULE AP.-

PLIES AFTER HAVING KNOCKED AND AN-

NOUNCED, POLICE WERE NOT REQUIRED

BY THE FOURTH AMENDMENT TO STAND

AT THE THRESHOLD OF THE OPEN DOOR-

WAY AND WAIT TO BE INVITED IN BY

FO RIES 6 eed eunessanaineeuaeees 12

RAPTURE sc cxw need Senda canes cee 16

ill

APPENDIX

A—Transcript of Proceedings Before Honorable

Bruce Falk on December 5, 1986 ......... A-1

B— Opinion of the Appellate Court of Illinois,

pp ere re eee B-1

C— Order of the Supreme Court of Illinois Deny-

SP ED ons s ceeweweewessnecs C-1

TABLE OF AUTHORITIES

Cases PAGE(s)

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

rere 9,14

Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10

ee ea naw waeees 10

Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408,

ere )

People v. Bares, 97 Ill. App. 3d 728, 423 N.E.2d

i age sew We 11

People v. Clark, 144 Ill. App. 3d 7, 494 N.E.2d 166

ee abe aie saab ees 6 8

People v. Conner, 78 Ill. 2d 525, 401 N.E.2d 513

ee ks ly yee eenkes 7,13

People v. Marinez, 160 Ill. App. 3d 349, 513 N.E.2d

EE 6

People v. Masters, 155 Ill. App. 3d 1015, 508 N.E.

re errr 11

iv

People v. Ouellette, 78 Ill. 2d 511, 401 N.E.2d 507

SE ath cuamh ahd kek eee eee 7, 8, 13

Rochin v. California, 342 U.S. 165, 72 S.Ct. 205,

ee Bo Ff pry er eee 10

Sabbath v. United States, 391 U.S. 585, n.8, 88

S.Ct. 1755, 20 L.Ed.2d 828 (1968) ......... 7

Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138,

gam S 6. ern eee 9

State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114,

cert. denied, ___ U.S. ___, 108 S.Ct. 180

NE i Phd eruhen haan oa wales < 7, 8,10, 11

Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694,

ee Ee BC 6-8'.s peek saccoseensen. 10

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

Er errr ee eee 8,9, 10, 11, 15

United States v. Santana, 427 U.S. 38, 96 S.Ct.

2406, 49 L.Ed.2d 300 (1976) ............... 14

United States v. Watson, 423 U.S. 411, 96 S.Ct.

820, 46 L.Ed.2d 598 (1976) ................ 14

Other Authorities

United States Constitution, Amendment 1V ...

Ill. Rev. Stat. 1985, ch. 38, par. 108-8 ........ 2,7

LaFave, Search and Seizure, section 4.8, at 271 (2d

Se SE cade caneak nets ee whoa eres asec 8

In THe

Supreme Court of the Gnited States

Ocroser Term, 1987

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vv.

JIMMY AND MARIA MARINEZ,

Respondents.

eee

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

THIRD JUDICIAL DISTRICT

OPINION BELOW

The opinion of the Appellate Court of Illinois, Third

Judicial District, is reported at 160 Ill. App. 3d 349, 518

N.E.2d 607 (3d Dist. 1982) (See Appendix B). The order

of the Illinois Supreme Court denying leave to appeal is

not reported, but is attached hereto (See Appendix C).

SS

= YS

JURISDICTION

The opinion of the Illinois Appellate Court, Third Judi-

cial District, was filed on September 15, 1987. A timely

petition for leave to appeal was filed by petitioner in the

Illinois Supreme Court. On February 3, 1988, an order

denying the petition for leave to appeal was entered.

This Court’s jurisdiction is invoked under 28 U.S.C. sec-

tion 1257(3). The instant petition for writ of certiorari is

filed within 60 days of the Illinois Supreme Court’s order

denying leave to appeal. United States Supreme Court

Rule 20; 28 U.S.C. section 1257(3). The decision of the

Illinois Appellate Court, Third Judicial District, was prem-

ised upon federal constitutional grounds and does not rest

upon any independent state ground.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Amendment IV, provides

that:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.

Illinois Revised Statutes 1985, chapter 38, paragraph

108-8 provides that:

All necessary and reasonable force may be used to

effect an entry into any building or property or part

thereof to execute a search warrant.

dition

STATEMENT OF THE CASE

Defendants, Jimmy Marinez and Maria Marinez, were

indicted on a charge of possession of a controlled sub-

stance with the intent to deliver. (C. 21) Following the

return of the indictment, defendants filed a motion to

quash search warrant and suppress evidence. The motion

alleged not only that the warrant was obtained without

probable cause, but that the warrant was illegally ex-

ecuted in that police failed to comport with the knock and

announce requirement. (C. 26-27) On December 4, 1986,

a hearing was conducted.

The evidence adduced at the suppression hearing re-

vealed that a search warrant was obtained by police for

the residence located at 207 East Clinton Street, Joliet,

Illinois, on September 16, 1986. (R. 47) Phillip Valera, a

city of Joliet police officer assigned to the Metropolitan

Area Narcotics Squad (MANS) unit testified that he was

instrumental in obtaining the search warrant. (R. 71-72,

75) At approximately 8:10 p.m. that same day, Officer

Charles Stein, along with three uniformed officers and

seven other MANS agents (including Valera), arrived at

the residence to execute the search warrant. (R. 46-47,

48) All of the MANS agents present were dressed in stan-

dard raid jackets described as navy blue windbreakers

with three-inch high white lettering stating “MANS Police”

on both the front and back. (R. 48, 51, 72) Prior to obtain-

ing the search warrant, policy had been informed that fire-

arms, specifically, a 9 millimeter pistol and an Uzi machine

gun were present within the residence. (R. 65-66)

After the officers arrived at the Clinton Street address,

a number of the officers approached the rear door. As

Stein approached the back door, he held a flashlight in

_ =

one hand and his service revolver in the other. As he

ascended the rear stairs, Stein yelled, “Police officers,

search warrant” three or four times in a very loud voice.

(R. 49, 73-74) As he reached the back door, using the butt

of his flashlight, Stein knocked on the door two or three

times. As he did so, Stein simultaneously yelled, ‘Police

officers, search warrant.” As Stein knocked on the rear

door with his flashlight, the door opened. After the door

had completely opened, Stein and the other officers im-

mediately entered saying, “Police officers, search war-

rant.” (R. 50, 57-58, 59-60, 74, 77)

Stein testified that the flashlight he possessed that eve-

ning was 12 to 18 inches long and very heavy. He testi-

fied that he had knocked fairly hard on the back door two

or three times using the butt end of the flashlight. (R.

57-58) As he knocked on the door, it began to open. How-

ever, because of an opaque covering over the glass of the

door, Stein was unable to discern whether anyone from

within was actually opening the door. It was not until

after the door had fully opened that Stein determined that

it was probably his knocking that had caused the door

to open. (R. 59-60}Photographic exhibits of the back door

of the residence, admitted by defendant (Def.’s Exhibits

6, 7), evidenced three indentation marks on the back door.

(R. 60-61) With respect to defendant’s exhibits 6 and 7,

defendant, Maria Marinez, testified that the indentations

on the door were never present before the evening of Sep-

tember 16, 1986. (R. 91) Stein testified that throughout

this time he was yelling, “Police officers, search warrant”

(R. 65) as was Officer Valera. (R. 73-74)

According to the testimony of Francis and Santiago

Marinez (the mother and father of defendant Jimmy Mar-

inez and mother-in-law and father-in-law of defendant

Maria Marinez (R. 8-9, 37-38)), on the day and time in

= =

question, they did not hear the police officers knock or

announce prior to entering the residence. (R. 18-19, 20,

26-28, 39) Their testimony indicated that the police had

simply burst into the kitchen of the apartment pointing

guns and yelling at them to “hit the floor.”’ (R. 19-20, 25-

26, 42-43) However, Santiago Marinez could not remember

if the people who had entered the premises were yell-

ing, “Police officers, search warrant” as they entered. (R.

42-43) The testimony of Maria Marinez was to the same

effect. (R. 31-32, 37)

Upon completion of the testimony and hearing oral argu-

ments (R. 94-106), the trial judge took the matter under

advisement. (R. 106) On December 5, 1986, the trial judge

rendered his decision. After making his findings of fact

(R. 109-17), the trial judge determined that the police had

violated the knock and announce rule in executing the

search warrant. (R. 117-18) The trial judge specifically de-

termined that the knock and announce rule was of consti-

tutional dimension. (R. 111) Although he found that the

police had in fact knocked and announced their authority

and purpose, he also determined that they did so as they

simultaneously entered the premises once the door had

opened. In chastising police for the manner in which the

warrant was executed, the trial judge determined that the

officers should have remained outside the threshold of the

doorway without entering once the door had opened and

waited for the occupants to invite them in. (R. 114-15,

117-18) As a result of the trial judge’s findings of fact and

conclusions of law, he granted defendants’ motion to quash

the warrant and suppress evidence. (R. 122) (Copy of oral

pronouncement and order attached as Appendix A)

Following the trial judge’s granting of defendant’s mo-

tion to quash the warrant and suppress evidence, the IIli-

nois prosecutor filed a timely notice of appeal (C. 48) and

TT

—§—

the requisite certificate of impairment. (C. 46-47) On ap-

peal to the Illinois Appellate Court, Third Judicial Dis-

trict, the prosecutor not only attacked the trial judge’s

substantive ruling concerning the alleged violation of the

knock and announce rule, but also raised issues address-

ing the constitutional underpinnings of the knock and an-

nounce rule and the application of the exclusionary rule.

The Illinois Appellate Court determined that although the

failure to knock and announce does not per se violate the

constitution, it nonetheless is a factor in determining

whether the entry to search is constitutionally reasonable.

In this case, the Illinois Appellate Court determined that

the police conduct did not comport with the knock and

announce rule thus violating defendant’s fourth amend-

ment rights. People v. Marinez, 160 Ill. App. 3d 349, 513

N.E.2d 607, 610 (8d Dist. 1987). In so ruling, the Illinois

Appellate Court addressed both the constitutional issue

and the factual issue concerning the officers’ conduct. The

Illinois Appellate Court’s determination of the knock and

announce issue rested solely upon application of the fourth

amendment of the United States Constitution and was not

premised upon any independent state grounds.

Following that determination, petitioner timely sought

leave to appeal the decision of the Illinois Appellate Court

in the Illinois Supreme Court. However, on February 3,

1988, leave to appeal was denied. (See Appendix C)

-

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

—

I.

IN THE ABSENCE OF STATE LEGISLATION, THE

FOURTH AMENDMENT OF THE UNITED STATES CON-

STITUTION DOES NOT REQUIRE A MECHANICAL

KNOCK AND ANNOUNCE RULE IN ORDER TO RENDER

THE EXECUTION OF A SEARCH WARRANT REASON-

ABLE, BUT A TOTALITY OF THE CIRCUMSTANCES AP-

PROACH SHOULD BE USED INSTEAD.

Illinois has no statutory requirement that a police officer

must knock and announce prior to executing a search war-

rant. People v. Ouellette, 78 Ill. 2d 511, 401 N.E.2d 507,

509 (1979); People v. Conner, 78 Ill. 2d 525, 401 N.E.2d

513, 515 (1979). In point of fact, the applicable Illinois stat-

ute provides as follows:

All necessary and reasonable force may be used to

effect an entry into any building or property or part

thereof to execute a search warrant. [Ill. Rev. Stat.

1985, ch. 38, par. 108-8.]

Thus, in light of the lack of any specific statutory enact-

ment pertaining to a knock and announce requirement,

the question becomes whether there is a legal premise

upon which to base such a mechanical rule. More spe-

cifically, the question presented is whether the fourth

amendment of the United States Constitution mandates

a mechanical “knock and announce” rule. To date, this

Court has yet to rule specifically upon this question, hav-

ing reserved judgment on the constitutionality of a knock

and announce requirement. See Sabbath v. United States,

991 U.S. 585, 591, n.8, 88 S.Ct. 1755, 20 L.Ed.2d 828

(1968); Conner, 401 N.E.2d 515; State v. Vrtiska, 225 Neb.

454, 406 N.W.2d 114, 121 (1987), cert. denied, __ US.

a

___, 108 S.Ct. 180 (1987); LaFave, Search and Seizure,

section 4.8, at 271 (2d ed. 1987). Despite the lack of a spe-

cific ruling by this Court with respect to this federal ques-

tion, both the Illinois Appellate Court, Third Judicial Dis-

trict, and the Illinois Supreme Court have addressed the

constitutional dimension of the issue, in effect elevating

the knock and announce requirement to constitutional pro-

portions. See Ouellette, 401 N.E.2d 509; People v. Marinez,

160 Ill. App. 3d 349, 513 N.E.2d 607, 609 (3d Dist. 1987);

People v. Clark, 144 Ill. App. 3d 7, 494 N.E.2d 166, 168

(3d Dist. 1986).

The petitioner maintains that the knock and announce

rule is not required by the fourth amendment. In United

States v. Nolan, 718 F.2d 589 (3d Cir. 1983), the court

was called upon to address an issue similar to that raised

by the petitioner in the instant case, albeit dealing with

the federal knock and announce requirement of 18 U.S.C.

section 3109. The Third Circuit Court of Appeals, upon

consideration of the divergent purposes of the fourth

amendment and 18 U.S.C. section 3109 (federal knock and

announce statute), concluded that the latter does not em-

body a constitutional requirement. In explaining their con-

clusion, the court stated:

. . . While the purposes and origins of the knock

and announce and of the fourth amendment require-

ments are similar, they are not identical, and the

purposes of the latter properly should be more care-

fully guarded. The fourth amendment was originally

fashioned to outlaw the use of general warrants and

writs of assistance, which allowed agents of the gov-

ernment arbitrarily to conduct searches for evidence

of wrongdoing, to the detriment of individual privacy;

“(t]he colonial experience under the writs was unmis-

takably ‘fresh in the memories of those who achieved

our independence and established our form of govern-

ment.’ ”’ Ker, supra, 374 U.S. at 51, 83 S.Ct. at 1638

ollie

(Brennan, J., concurring & dissenting) (footnote omitted)

(quoting Boyd v. United States, 116 U.S. 616, 625,

6 S.Ct. 524, 529, 29 L.Ed. 746 (1886)). The goal of

curbing arbitrary government power to intrude at

will into an individual’s privacy differs from the goals

of the knock and announce requirement, which ad-

dresses only the manner in which a legitimate and

inevitable government intrusion into the target per-

son’s privacy is to take place. Such an intrusion, it

is true, can be made in a way so violative of the

privacy and property rights of the occupants of the

dwelling as to be unreasonable within the meaning

of the fourth amendment, see Ker, supra, but not

every violation of the statute will present such an

unreasonable intrusion. [718 F.2d at 602.]

The adoption of the fourth amendment was precipitated

by the abuse of search warrants. Sgro v. United States,

227 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932). The

mandate of the fourth amendment requires adherence to

judicial processes, and searches conducted outside that

judicial process, without prior approval by judge or magis-

trate, are per se unreasonable under the fourth amend-

ment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967); Mincey v. Arizona, 437 US.

385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Thus, the

fourth amendment’s requirements are plain and straight-

forward: In order for a search and seizure to be reason-

able, a warrant must first be obtained from a judicial of-

ficer after providing facts establishing probable cause.

Once the warrant authorizing the search of a particular

place and seizure of the particular thing(s) has been issued,

the police have fully satisfied the fourth amendment’s

mandate in that regard. It is the judicially-issued search

warrant which then gives the police the power and author-

ity to enter an individual’s private domain, search it, and

seize that which the warrant permits. Here, the knock and

on

announce rule adds nothing to the reasonableness mandated

by the fourth amendment. Nolan, 718 F.2d 602; State v.

Vrtiska, 406 N.W.2d 12i.

Although the petitioner suggests that a knock and an-

nounce rule is not required by the fourth amendment, this

is not to suggest that once police have a warrant they

may use whatever means are available to them to execute

the warrant. Of course, police conduct in executing a

search warrant may, under certain circumstances, be so

outrageous that it shocks the conscience of the court and

would be considered unreasonable. Cf. Rochin v. Califor-

nia, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Ker

v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726

(1963); Tennessee v. Gardner, 471 U.S. 1, 105 S.Ct. 1694,

85 L.Ed.2d 1 (1985). However, the reasonableness in the

execution of a search warrant should be judged on a total-

ity of the circumstances approach as opposed to a me-

chanical or subjective formulation like the knock and an-

nounze standard now employed. The interests of both the

fourth amendment and law enforcement are satisfactor-

ily balanced by using a totality of circumstances approach.

Under this approach, the entire transaction is viewed to

determine the propriety of police conduct when executing

a search warrant. Minor transgressions will not automati-

cally render the execution of the search warrant constitu-

tionally unreasonable thereby resulting in the suppression

of relevant evidence as is now the case under the me-

chanical and subjective knock and announce requirement

promulgated as the law in Illinois.

The petitioner maintains that the totality of the facts

and circumstances surrounding the entry indicate that the

police conduct here was reasonable. The officers, armed

with a judicially-authorized search warrant, approached

defendants’ home, knocked, and loudly announced their

mation

presence and purpose. However, as a result of the offi-

cers’ knocking on the door, the door opened. The officers

did not force the door open or intentionally turn the knob

to open the door. Their subsequent entry made through

the open door using no force whatsoever (other than knock-

ing) after they had knocked and announced is not the type

of entry which the courts have condemned as unreason-

able. United States v. Nolan, 718 F.2d at 601-02; People

v. Bares, 97 Ill. App. 3d 728, 423 N.E.2d 538 (2d Dist.

1981). The officers’ uninvited entry through the open door-

way did not vitiate the reasonableness of the manner in

which police executed the search warrant. Cf. People v.

Masters, 155 Ill. App. 3d 1015, 508 N.E.2d 1163 (4th Dist.

1987).

The officers’ conduct here was not unreasonable under

the circumstances. If a totality of the circumstances ap-

proach would have been employed, as opposed to the me-

chanical application of the knock and announce standard,

it is evident that this case simply would not have war-

ranted suppression of the evidence. As such, the decision

of the trial judge granting defendants’ motion to quash

search warrant and suppress evidence should have been

reversed. United States v. Nolan, 718 F.2d at 602; State

v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114, 121-22 (1987).

Accordingly, the Illinois Appellate Court, Third Judicial

District, incorrectly decided an important question of fed-

eral law which has not been settled by this Court. For

this reason, the petitioner urges that a petition for a writ

of certiorari be granted to review the issue.

= =

II.

ASSUMING, ARGUENDO, THAT SOME TYPE OF A

KNOCK AND ANNOUNCE RULE APPLIES, AFTER HAV-

ING KNOCKED AND ANNOUNCED, POLICE WERE NOT

REQUIRED BY THE FOURTH AMENDMENT TO STAND

AT THE THRESHOLD OF THE OPEN DOORWAY AND

WAIT TO BE INVITED IN BY THE OCCUPANTS.

Assuming, arguendo, that some form of a knock and an-

nounce requirement is required by the fourth amendment,

the question then becomes whether the police conduct suf-

ficiently comported with the requirements of the knock

and announce rule, thereby establishing the reasonable-

ness of the officers’ conduct in executing the search war-

rant. The resolution of this issue is not only fact specific,

but also entails a legal determination of what was consti-

tutionally reasonable police conduct under the fourth amend-

ment once the door opened.

The singular factual aspect which makes this case unique

for fourth amendment purposes is the manner in which

the door opened during the execution of the search war-

rant. It is undisputed that Agent Stein knocked on the

rear door of defendants’ premises three times with the

butt end of his flashlight concomitantly announcing, “Police

officers, search warrant.” However, although apparently

closed, the door was not completely secured. As a result,

with each knock by the officer, the door opened. Although

the blows were of sufficient force to leave three one-inch

indentations in the door, no damage was done to the lock

mechanism. Furthermore, because the glass in the back

door was opaque, Agent Stein was unable to determine

if someone from within was opening as he knocked. Only

when the door was completely opened, did the agent dis-

cern that no one from within the residence was opening

the door. It is at this point that the constitutional ques-

~~

tion presents itself: Were the officers required by the

fourth amendment to remain outside the threshold of the

residence and await an invitation from the occupants

before entering? What conduct was reasonably expected

of these officers when faced with this situation? The Peo-

ple submit that the officers’ conduct in immediately enter-

ing the residence once the door had opened, regardless

of the fact that it opened as a result of the police having

knocked at the door in compliance with the knock and

announce rule, was reasonable under the fourth amend-

ment. It is further submitted that, whenever police in the

execution of a search warrant approach a residence and

the door is either already opened or opens as a result

of the officer’s knocking, police may enter the premises

immediately without permitting the occupants an oppor-

tunity to invite the officers in.

The function of the knock and announce requirement,

assuming there is such a requirement, is to notify the oc-

cupant of the presence of police so that (1) the potential

for violence to the police and occupants may be dimin-

ished; (2) the occupant’s privacy will be protected by

allowing him to surrender his privacy voluntarily; and (3)

the destruction of private property is prevented. People

y. Ouellette, 78 Ill. 2d 511, 401 N.E.2d 507, 510 (1979);

People v. Conner, 78 Ill. 2d 525, 401 N.E.2d 513, 516

(1979). However, in those situations that the door to a

residence is already opened upon police arrival or opens

as a result of police comporting with the knock and an-

nounce requirement, it is questionable whether the salu-

tary purposes behind the knock and announce requirement

are substantially furthered by requiring police to wait out-

side the threshold to await an invitation to enter. It ap-

pears that the principle so enunciated by the Appellate

Court in Marinez might actually be inapposite to the

fourth amendment.

=)

Although the fourth amendment has drawn a firm line

at the entrance to a home, the doorway to an individual’s

home is not an impregnable barrier. Thus, for fourth

amendment purposes, the People maintain that once the

door of defendant’s residence is opened, be it already in

that state when police arrive or as a result of the police

conduct in knocking on the door, the police may reason-

ably cross that threshold to execute the search warrant

without first having to await an invitation to enter from

the occupants within. What defendant voluntarily and know-

ingly places or exposes to the public, even in his own

home, is not a subject of fourth amendment protection.

Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). The People submit that an occu-

pant of a residence has a reduced expectation of privacy

whenever the door to the residence is opened, since the

threshold is, for fourth amendment purposes, considered

a public place. See United States v. Santana, 427 U.S.

38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States

v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598

(1976).

What is presented by this case is a situation unbeknownst

to the officers that at the time they knocked on the rear

door to defendants’ residence, they were about to knock

on a door which had not been completely secured. As they

knocked, the door opened. Suddenly, the officers found

themselves standing at the threshold of an opened door

to an apartment for which they not only had a search war-

rant to search for drugs but were also informed that fire-

arms might be present. Under the circumstances, the Peo-

ple maintain that the fourth amendment did not require

the officers to remain outside the threshold of that door-

way to wait for an invite to enter from within. Instead,

the fourth amendment permitted the officers to immedi-

ately enter the residence in order to secure the premises

=

not only for their own safety, but also to prevent possi-

ble destruction of any evidence. Requiring the police to

simply stand at the threshold of the completely opened

doorway for which they had a search warrant to look for

drugs and to await invitation by the occupants is unrea-

sonable and presents a perilous situation to officers’ safety

in general. Although no apparent harm was imminent to

these officers, this determination only can be made on

hindsight. However, to require as a general proposition

that officers must remain outside the threshold of an open

door until invited in requires more than what the knock

and announce rule encompasses as well as the fourth

amendment.

Examining the facts of this case, the People submit that

the execution of the instant search warrant was not unrea-

sonable. No right of privacy was infringed by the officers’

entry since the door opened albeit as a result of the of-

ficer’s knocking. However, there is no indication that the

officers knew that the door had not been properly secured

prior to knocking. Thus, this was not a “forced” entry

or breaking generally condemned by the fourth amend-

ment. Instead, everything that the police did here clear-

ly indicates a design to comport with the fourth amend-

ment. See United States v. Nolan, 718 F.2d 589, 602 (3d

Cir. 1983). The opening of the door exposed to the officers’

view the interior of the residence. Furthermore, they did

not physically intrude into the home until after they had

already announced their presence and purpose. Thus, it

cannot be said that the police entry was so unreasonable

under the fourth amendment that it required exclusion

of the evidence found therein.

The People conclude that the Appellate Court’s underly-

ing rationale is fatally erroneous. The officers’ conduct in

immediately entering the residence once the door had

onan

been opened was reasonable under the fourth amendment.

Under the circumstances, the People submit that the an-

nounced but nonconsensual entry by police to execute the

search warrant was not, by itself, an unreasonable intru-

sion prohibited by the fourth amendment.

CONCLUSION

For the reasons and arguments stated herein, the Peti-

tioners respectfully request that a writ of certiorari issue

to the Appellate Court of Illinois, Third District, to review

that court’s decision which affirmed the trial judge’s deci-

sion to grant defendants’ motion to quash search warrant

and suppress evidence.

Respectfuly submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

TERENCE M. MADSEN *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

Counsel for Petitioner

JOHN X. BRESLIN

Deputy Director

GARY F. GNIDOVEC

Staff Attorney

State’s Attorneys

Appellate Prosecutor

628 Columbus Street, Suite 402

Ottawa, Illinois 61350

Of Counsel * Counsel of Record

A-1

APPENDIX A

Transcript of Proceedings Before

Hon. Bruce Falk on December 5, 1986

{R. 109] THE COURT: 86CF-930, Marinez. This matter

comes on for decision after having been taken under ad-

visement at the conclusion of testimony yesterday on a

motion to quash a search warrant.

The basis of the motion was the alleged illegal execu-

tion of the warrant, itself, based upon a forcible entry

without prior—or without announcement prior to the

police officers entering into the residence.

No allegations were presented regarding the obtaining

of the warrant or the sufficiency of the basis for the is

suance of the warrant.

The undisputed facts, at least, the facts that are un-

controverted by the testimony are not many. The search

warrant was duly issued for a residence located at 207

Clinton, Joliet, Illinois; that address is a house; that at

the time of the execution of the warrant on September

16th of 1986, at approximately eight p.m., was being

rented by the defendants, Jimmy Marinez and his wife,

Maria Marinez. They resided there with their two children.

At the time the warrant was served, Frances Marinez,

the mother of the defendant, Jimmy Marinez, and the

mother-in-law of Maria, and Jimmy [R. 110] Marinez, also

known as Santiago Marinez, who is the father of the

defendant, Jimmy Marinez, and the father-in-law of Maria

Marinez, were visiting at the residence. The defendant,

Maria Marinez—excuse me—yeah, Maria Marinez was at

home with the two children. The defendant, Jimmy Mari-

nez, was not at home or present during this search.

A-2

Immediately prior to the entry of the police, Frances

Marinez was in the kitchen reading a newspaper. Maria

was in the bathroom with her older daughter, Stacey. Mr.

) Marinez was in the living room watching T.V. The two

dogs owned by the defendants were outside of the house

near the back door which opened into the kitchen. The

back door was not locked, but it was closed, although

there was a glass window area to the door. It was not

clear glass, and it could not be seen through. It was dark

outside. The door was not opened voluntarily by anyone

inside the house.

Both Santiago Marinez and Frances Marinez sustained

bruises as a result of being placed on the kitchen floor

after the police entered, and Santiago Marinez’ bruises

were to his stomach area where apparently he landed on

the floor. Frances Marinez’ [R. 111] bruise was to her arm

where she was held or forced to the floor.

Upon the entry of the police, the police had their weap-

ons drawn. The law in this case is fairly clear. The par-

ties have furnished to the Court certain case citations

which the Court has read and reviewed. Those case cita-

tions from both sides agreeing and comport with what the

Court’s understanding is of the law is in this area.

First of all, Chapter 38, Section 108-8, paraphrasing,

allowing all necessary and reasonable force to be used in

the execution of a warrant. The Fourth Amendment cer-

tainly protects against all unreasonable searches and sei-

zures, including a search and seizure that is found to be

unreasonable because of the improper exercise or execu-

tion of a validly issued warrant.

In Illinois, there is no statutory requirement to an-

nounce police officers’ authority or presence or purpose

prior to the execution of the warrant, and it is not a, per

A-3

se, Constitutional violation to fail to announce presence,

authority or purpose before executing a warrant, but it

is a factor, a consideration for the Court to note, some-

thing to be [R. 112] considered in determining whether

or not the entry under the facts and circumstances of a

particular case is a reasonable one and a lawful one. So,

the so-called knock and announce rule is not really a rule

as much as it is a circumstance to be considered by the

Court, and absent exigent circumstances, it’s generally

held by the courts that officers are expected to announce

their presence and purpose prior to entry.

The purpose of that requirement is stated in the case

of People versus Seybold, S-e-y-b-o-l-d, 423 Northeast 2nd

1132; where it states that the purpose of the requirement

that officers announce their authority and purpose before

entering the home is to notify those inside of their pres-

ence in order to afford them the opportunity to respond

so that violence can be averted and privacy protected.

People versus Clark. It is stated that—at 494 Northeast

2nd 168—that the so-called knock and announce rule does

not exist in a vacuum; neither is it a creation of misguided

libertarians. The rule serves the dual salutary purposes

of avoiding yiolence and protecting personal privacy.

That pretty Yuuch ends what has been [R. 113] either

disputed, uncontadicted or agreed to by the parties.

The parties dispute certain other factual situations re-

garding the entry of the police into this residence and

disagree on the application of the law to this particular

situation.

With regard to the disputed facts, the Court will make

the following determinations and findings of fact. Having

reviewed the evidence, considered reasonable inferences

to be drawn from the evidence and considering the credi-

A-4

bility of the witnesses and their testimony as presented

in court, the agents that came on the scene to execute

this warrant on the night of September 16th were dressed

in, I suppose what I can call an undercover raid uniform,

which would be a-dark blue windbreaker that contained

white lettering on the front and back that identified them

as—or that said M.A.N.S. Police. I believe it says M.A.N.S.

on the front. Police on the back. It may be the other way

around, but in white lettering approximately three inches

high. There were regular uniformed officers on the scene,

also; however, they were not part of the initial group that

entered the residence. They were not the [R. 114] first

or second or third officer into the residence, but they did

enter the residence shortly after the initial entry.

When I say, regular uniformed officers, those are of-

ficers in their formal police officers’ uniforms, which in

Joliet consist of blue uniforms, cap, patches, weapons,

belts and badge.

The police—and there is no dispute about this, also—

that when they entered, the police had their weapons

drawn. The police announced their presence, and they an-

nounced who they were; specifically, Officer Stein, and

there may have been other officers behind him, also, yell-

ing, while Officer Stein, who was the first agent on the

porch area, was knocking on the door.

There were no announcements made prior to by any of-

ficers, Stein being on the porch and pounding on the door.

The dogs, at least one of them, were barking and mak-

ing noise, and knocking by Officer Stein consisted of, at

least, three blows to the door area with the butt of a five

battery flashlight. The blows were of sufficient force to

leave three-inch indentations in the door area, adjacent

to the door [R. 115] handle, immediately adjacent or with-

A-5

in the proximity of the doorknob, above it and to the left.

The blows were made in an immediate and rapid succes-

sion, the pounding or a knocking, one, two, three, and

their force was sufficient to cause the door to open. The

door opened quickly. The lock, however, was not broken.

Upon the opening of the door, the agents burst in. They

were running, first Officer Stein. As they ran in, they

yelled words to the effect that they were police. They

told the occupant of the kitchen specifically to get down.

Officer Stein proceeded then past the occupant of the

kitchen. As a matter of fact, hardly remembering if there

even was an occupant of the kitchen, saying that to the

best of his memory there was one, but she posed no

threat, so, he went immediately by her to another area

of the house to secure the residence.

The State cites two cases to the Court claiming analo-

gous fact circumstances that justify the entry in this case.

Those cases are People versus Boykin, 328 Northeast 2nd

1369; People versus Mathes, 387 Northeast 2nd 39. First

there was a prior announcement [R. 116] of the police

presence in Boykin. There was announcement of the police

presence, a passage of some period of time, I forget, ten

to fifteen seconds, I believe, during which time the police

heard some movements on the inside of the residence,

receiving no response, and then went in.

In Mathes, a warrant executed in the middle of the day;

again, prior announcements. I believe in this, on that day,

on at least two occasions before the entry, and no re-

sponse at all before the entry into a downstairs hallway,

and then they went further upstairs.

Neither of those cases are analogous to this situation,

as the defendants point out the case of People versus

Clark is almost exactly on point.

A-6

In the Clark case, unlike the distinction which the State

sought to draw in argument regarding this matter, that

there was no prior announcement, the facts as determined

were undisputed as stated in the Appellate Court opinion.

Again, if I didn’t cite it before, it’s 494 Northeast 2nd 166.

There the officers took a battering ram and blasted the

defendant’s front door open while [R. 117] announcing

their authority. They didn’t announce their authority

before they blasted in. They did it while they were

blasting in.

In this case, there was a battering ram present. It was

not used, but in this case, also, the authority took place

contemporaneously, simultaneously, at the same time the

officers were banging in the door. The fact that they

didn’t used a battering ram and used a flashlight with

sufficient force to force in the door is a factual distinc-

tion which does not make any legal distinction to the

Court’s mind.

The officers gave the occupants of this house no oppor-

tunity to answer their call. In fact, when the door was

opened, if it was inadvertent, giving the police the benefit

of the doubt that the blows with this flashlight, sufficient

enough to dent in what appears to the Court to be a

wooden-frame type door, were inadvertent in attempting

to open the door, were only for the purpose of—while they

were announcing their presence, even given the benefit

of that, upon the door opening, there was nothing to pre-

vent the police from staying at the threshold upon see-

ing a middle-aged woman seated, reading at the kitchen

table and announcing who they were and why they were

there [R. 118] and what their purpose was without

bursting by her, and the second and third agent, whatever

agent, forcing her down to the floor with such force that

she had a bruise on her arm, and basically, terrorizing

her.

A-7

The Court finds one of the reasons for the discrepancy

in the testimony regarding what happened as to Frances

Marinez is that more than likely she was terrorized by

the police bursting into this house, that while the dogs

barked, that wasn’t the things that she would remember,

and while the police were wearing their uniforms, that

isn’t what she would remember. She would remember see-

ing a bunch of strange people dressed in weird outfits

running into her house and yelling. That would probably

be the things that would remain impressed upon her mind.

I believe that’s what was impressed upon her mind, and

I believe that’s what the police did in this case.

So, the factual situation, with the exception of the bat-

tering ram, if you substitute the flashlight for the bat-

tering ram, you have just about an identical situation; the

police forcing in the door and running through the house.

That conduct [R. 119] was condemned in Clark. That ap-

parently has made no difference to the agent and the

same police agency, the same police authority that ex-

ecuted this warrant.

The Court must make a further inquiry to determine

whether or not there were exigent circumstances that ex-

isted that would authorize the conduct in this case.

Exigent circumstances to be considered are the nature

of the thing to be searched for. In this case are narcotics,

which are easily disposed of, possible danger to the police

officers, presence of weapons, possibility of escape by the

people inside.

The Court has looked at those factors and the other fac-

tors which the evidence in this case has brought up which

might be considered as exigent to justify the police con-

duct. The Court can find no exigent circumstance that

would justify the police conduct in this matter.

A-8

The quote from Clark, I think, is again appropriate

where it says, “that the so-called knock and announce rule

does not exist in a vacuum; neither is it a creation of

misguided libertarians. The rule serves the dual salutary

purposes of avoiding violence [R. 120] and protecting per-

sonal privacy; where as here, the police exhibit a blatant

disregard for these concerns. We do not hesitate to sup-

press the fruits of this ill-begotten escapade.”

The Court finds no distinction between battering a door

down with a ram and forcing it open with a heavy flash-

light or kicking it in. The police have changed the—in this

agency has changed the physical object with which they

do their search. They haven’t changed their tactics or

method from the Clark case, which is decided in July of

1986, about two—strike that. It was decided May 30th of

1986, rehearing denied July 8th, just a few months prior

to this raid.

The Court can sympathize with the police who are do-

ing this type of work, and it is a dangerous type of work,

but we are not at war with the citizens of this country,

and the price we pay for having a free society is to be

allowed to remain in our homes, every citizen, unless

there is legal process used as a reason to violate that

privacy, and there are ways to do it, and there is no ques-

tion that they are not the most efficient ways to combat

the drug problem, to combat crime. They are not the [R.

121] most efficient ways.

The safeguards that are placed there by the Constitu-

tion and by the statutory and case law authority do not

make it easier for the most part for the police to execute

these warrants or to stop criminal activity. That is the

flipside of the coin that we pay for being in a free society.

ae

A-9

I believe it was Jamaica that established a very effec-

tive gun control policy. They randomly went through

houses, not one at a time, but many at a time, with no

warrants, with no reason, other than to look for weapons.

When they found the weapons, the people were hauled

off and given secret trials and incarcerated. That’s a very

effective gun control policy. One I’m sure that the Ameri-

can people would not stand for, be it guns, drugs, or any-

thing else.

The rules are there to protect everyone. On occasion,

someone that has perhaps no less right to the protection,

but is doing things that are beyond the rules and gets

away with it, that unfortunately is the price that has to

be paid to protect the rest of us. That’s the nature of

the game. Eventually, it catches up.

[R. 122] The Court is going to grant the motion to sup-

press and quash the warrant and suppress the items

seized on that warrant and charge a written order to Mr.

Polito.

MR. MOCK: Your Honor, if I could ask to make one

further specific finding of fact, if the Court should choose

to, for possible appeal by the State?

THE COURT: All right.

MR. MOCK: And I may be in error, but I believe it

was my rememberance of the testimony by Officer Stein

that they were yelling “police officers” as they were run-

ning up to the porch. Are you making a specific finding

that you don’t believe that occurred, or is it your memory

that you don’t remember them saying that?

THE COURT: I remember Officer Stein’s testimony. I

have reviewed my notes of Officer Stein’s testimony that

reflect that he stated, and I believe he was the only wit-

A ancient

A-10

ness that stated, although my notes are—might not be

correct on that, but he did state, at least, that as they

were going up to the porch he announced their presence

in a loud voice. I’m not sure if he said that in the dura-

tion of that statement or not. I find the credible evidence

in this case to be that the announcement took place con-

temporaneously [R. 123] with the pounding on the door.

I believe I stated that in the earlier decision. If it’s un-

clear, that’s the finding that I make.

* * * *

| B-1

| APPENDIX B

Opinion Of The Appellate Court Of Illinois

Third Judicial District

Case No. 3-87-0005

(Publ. In Full]

Filed 9-15-87 Received Sep 16 1987

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 1987

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

V.

JIMMY MARINEZ and MARIA MARINEZ,

Defendants-Appellees.

Appeal from the Circuit Court of the 12th Judicial

Circuit, Will County, Illinois

No. 86-CF-930 P

Honorable Bruce Falk, Judge Presiding

JUSTICE STOUDER delivered the opinion of the court:

Defendants, Jimmy and Maria Marinez, were charged

with possession of a controlled substance with the intent

teal

B-2

to deliver. Prior to trial, the defendants filed a motion

to quash the search warrant and to suppress the evidence

based upon the constitutionally impermissible procedure

employed by the police in executing the warrant. The de-

fendants claim that the officers failed to knock on the door

and announce their authority and the reasons for their

presence prior to the execution of the warrant. The trial

court granted the motion and the State filed a timely no-

tice of appeal.

Prior to the search of the Marinez residence, agents of

the Metropolitan Area Narcotice Squad (MANS) obtained

a search warrant. The warrant did not list the Marinez

family as the people who were the subject of the search.

The name on the warrant as the occupant of the premises

was Eddie Rodriguez. The agents believed Rodriguez was

the occupant of 207 E. Clinton as a result of surveillance

conducted during the investigation. A controlled buy of

cocaine was conducted and the police tailed the purchaser

to 207 E. Clinton. Numerous vehicles were present at the

address. A check of the license plates revealed the owner

of one of the vehicles to be Rodriguez, a good friend of

the defendants. Rodriguez’s license check showed a Ster-

ling Avenue address, but the MANS agents knew Rod-

riguez no longer lived at this address. It was on this basis

that police believed Rodriguez to be the occupant of 207

E. Clinton.

The MANS agents knew Rodriguez to possess firearms.

In a search conducted in 1985 of Rodriguez’s old address,

numerous loaded handguns were seized, along with a

quantity of cocaine and cannabis. Police also had infor-

mation that an ‘“Uzi’”-type machine pistol and a nine milli-

meter handgun were located at the residence. On the

basis of the controlled buy and this other information,

MANS agents obtained the warrant.

B-3

On September 16, 1986, prior to the time MANS agents

executed the warrant, the Marinez’s were at home with

Jimmy’s parents and their two children. One other per-

son had visited the home that night. When the visitor left,

Jimmy’s mother testified that. she had closed the back

door but not locked it. Her testimony was that she closed

the door until it “clicked” shut.

When the police arrived to execute the warrant, they

went around to the back door of the residence. The

agents’ testimony indicated that as they ascended the

stairs to the back door they yelled “police officers, search

warrant” numerous times. The first agent to reach the

door stated that he had his flashlight in one hand and

a service revolver in the other. The glass in the back door

was either translucent or opaque in nature so that anyone

on the outside could not see into the residence. As one

of the agents knocked on the door with the flashlight, the

door began to open; a little further with each knock. The

blows were of sufficient force to leave three one-inch in-

dentations in the door but no damage was done to the

lock mechanism. When the agent discerned that no one

was opening the door and that it was the knocks with

the flashlight that caused the opening, the agents entered

the house and conducted their search while the residents

were instructed to lay on the floor. The search netted a

nine millimeter handgun, found in a kitchen cabinet, and

a certain quantity of a controlled substance.

The residents of the house said that they heard nothing

prior to the back door slamming open and the agents en-

tering. The agents were all wearing blue jackets with the

words “MANS Police” in four-inch-high white letters.

While Jimmy’s mother clearly remembered closing the

door until it ‘‘clicked’’ shut, she stated she did not hear

the agents yelling ‘‘police officers, search warrant” nor

B-4

did she recall seeing the white lettering on the blue

jackets.

At this juncture, we note that the sufficiency of the

probable cause to obtain and the issuance of the warrant

itself were not contested. Rather, this case centers on the

execution of that warrant. Specifically and initially, we

address the “knock and announce”’ rule when placed in

the equation of what constitutes a reasonable search.

Second, and on the basis of the trial courts’ holding that

the agents did “knock and announce’’, we must determine

whether, under the facts of this case, an announcement

by the agents of their identity and purpese coupled with

a simultaneous or contemporaneous entry circumvents the

purpose of the “knock and announce’”’ rule.

The purpose of the “knock and announce”’ rule is to

notify the person inside of the presence of police and of

the impending intrusion, give that person time to respond,

avoid violence, and protect privacy as much as possible.

(People v. Ouellette (1979), 78 Ill.2d 511, 518, 401 N.E.2d

507, 510.) Illinois has no statutory requirement that an

officer must announce his authority and purpose. The IIli-

nois Supreme Court has stated that “the mere failure of

police to announce their authority and purpose does not

per se violate the Constitution, [although] it may influence

whether subsequent entry to arrest or search is constitu-

tionally reasonable.” (People v. Wogemuth (1977), 69 Ill.2d

154, 166, 370 N.E.2d 1067, 1072.) Where exigent circum-

stances exist, the failure of police to knock and to an-

nounce their authority and purpose in the execution of

a search warrant does not violate the fourth amendment

right against unreasonable searches and seizures. People

v. Ouellette (1979), 78 Ill.2d 511, 401 N.E.2d 507.

B-5

However, the specifics needed to find that exigent cir-

cumstances exist, thereby alleviating the need for the

police to knock and announce, must have some basis in

the facts of the particular case. For example, the mere

fact that narcotics, which by their very nature are easily

destroyed, are the subject of the search does not in and

of itself create an “exigent circumstance” which would

justify the police in failing to knock and announce. (Peo-

ple v. Ouellette (1979), 78 Ill.2d 511, 401 N.E.2d 507.) In

Ouellette, the Illinois Supreme Court held that the ex-

istence of narcotics located on a dresser near but outside

the bathroom (where the narcotics could easily be flushed

down the toilet), coupled with the fact that the defendant

never permitted anyone who came to the door to enter

until fully identified, did not present the necessary ex-

igency. 78 Ill.2d 511, 401 N.E.2d 507; see also People v.

Clark (1986), 144 Ill.App.3d 7, 494 N.E.2d 166.

Nor does information indicating the presence of weapons

alone create an “exigent circumstance.” The theory behind

announcement of purpose and authority encompasses pro-

tection of the police officer as well as avoidance of con-

frontation generally. Although each situation merits indi-

vidual analysis, the necessity that police provide notice

of their presence seems more compelling in the face of

startling someone in possession of a weapon. In such a

case, compliance with the “knock and announce” rule

should be excused “only where the officers reasonably

believe the weapon will be used against them if they

proceed with the ordinary announcements.” People v.

Ouellette (1979), 78 Ill.2d 511, 401 N.E.2d 507 (quoting

People v. Dumas (1973), 9 Cal.3d 871, 878, 512 P.2d 1208,

1213.)

We have determined that the trial court was correct

in its determination that the information accumulated by

B-6

the MANS agents was insufficient to supply the requisite

exigent circumstances which would permit them to dis-

pense with the “knock and announce” rule. There was

no specific information that the narcotics were kept in a

place which would facilitate their immediate destruction.

Nor was there any information to suggest that the occu-

pant carried the weapon on or about his person, that he

had ever used the gun, or that there was any danger to

the agents from the use of the weapon. On this basis,

there was no reason to excuse the agents from failing to

knock and announce their presence and intent.

We next address the issue which is fact specific to this

particular case. Assuming that the agents did knock and

announce their presence and intent, did the simultaneous

entry render a reasonabie search—made so by a valid

search warrant and a knock and announce—unreasonable.

This question can be answered simply by examining the

purpose of knocking and announcing.

As we have stated previously, one of the purposes of

the “knock and announce” rule is to give the defendant

time to respond to the presence of the police. If the en-

try into the dwelling is simultaneous with the knock and

announce, that purpose is thwarted. Therefore, if the nec-

essary exigent circumstances are absent and the police

knock and announce their presence and intent, they must,

in turn, give the occupants of the dwelling time to re-

spond. To hold otherwise would effectively eliminate the

need to ever consider the “‘knock and announce”’ rule.

For the foregoing reasons, the judgment of the Circuit

Court of Will County is affirmed.

Affirmed

BARRY, P.J., and WOMBACHER, J., concur.

C-1

APPENDIX C

Order Of The Supreme Court Of Illinois

Denying Leave To Appeal

[Letterhead Of]

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2038

February 3, 1988

State’s Attorneys Appellate Prosecutor

Third Judicial District

P. QO. Box 645

Ottawa, IL 61350

No. 66024— People State of Illinois, petitioner, v. Jimmy

Marinez, et al., respondents. Leave to appeal,

Appellate Court, Third District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on February 25, 1988.