UNITED STATES v. ANKENY, USCA-9 No. 05-30457, 2007 U.S.App. LEXIS 14350, on appeal from USDC-DOR, before USCJs Reinhardt, Tashima, Graber, opinion by Graber, dissent by Reinhardt, filed 19 Jun 2007.
LONG STORY SHORT: Forced entry involving tactical team, battering rams, rubber bullets, flash-bangs, and over $10,000 in property damage to serve a search warrant did not have a causal relationship to the evidence found, and the Fourth Amendment did not require suppression. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.
FACTS: Defendant's long-term girlfriend/baby-mother told Portland, Oregon police that Defendant had choked and kicked her, and that he was probably armed and using methamphetamine. Officer Rhodes ran a background check and found that Defendant had numerous convictions for drug dealing and violent crimes, and some outstanding warrants. Police decided that traffic-stopping him or arresting him on the street would be too risky to bystanders. Instead, they obtained a search warrant for the rental house where Defendant was living, and 44 officers led by the Special Emergency Response Team arrived at 0530 one morning and announced "police, search warrant" at the front door.
About one second later, officers began hitting the front door with a battering ram while others fired rubber bullets through windows, making numerous holes in walls and ceilings. As officers broke through the front door, Defendant stood up from the recliner where he had been sleeping, only to have an officer order him to show his hands and get on the floor. Another officer threw a flash-bang distraction device that detonated close enough to Defendant to cause first- and second-degree burns on his upper body. Officers threw a second flash-bang into the second story, igniting a mattress in which a couple were lying. Officers threw the mattress out the window before it could set fire to the structure.
After Defendant was in custody, officers found a 9mm pistol in the chair where Defendant had been sitting; another pistol in a chair next to him; and a sawed-off shotgun, two rifles, ammunition, drugs and paraphernalia, and $3,000 in other parts of the house. The homeowner estimated the damage inflicted by police activity would cost $14,000 to fix, but he accepted $10,000 from the city.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Oregon for possession of firearms and ammunition while a convicted felon, and for possession of an unregistered short-barreled shotgun. Defendant moved to suppress all evidence as the fruit of an unreasonable search, arguing that police had effectively failed to knock and announce before entering, and that they had used grossly excessive force, evidenced by expensive property damage and serious injury to Defendant. The trial court ruled that even though the entry was no-knock, the officers did have a warrant and would have inevitably found the evidence, making the reasonableness of the search irrelevant. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving the right to appeal the denial of suppression to the U.S. Court of Appeals for the Ninth Circuit.
DECISION: While the case was on appeal, the Supreme Court ruled in Hudson v. Michigan, 126 S.Ct. 2159 (2006) that unauthorized no-knock entries do not justify suppression of evidence, both because of excessive social costs of suppression and the inevitability of discovering evidence whether or not officers knock and announce first. Consequently, the Ninth Circuit ruled that even if the officers did not knock or announce when searching Defendant's house, evidence would not be suppressed on that ground.
Whether the search was unreasonable was a close question. In favor of the officers' actions were the facts of Defendant's violent history and the discovery of two pistols within his reach. Reasonable officers would use surprise and considerable force to bring someone like Defendant under control before he could react, and some amount of property damage and injury could be expected. Also, the officers searched and seized no more than what the warrant authorized.
Against the officers' actions were the serious injury to Defendant and great damage to the house resulting from special weapons including two flash-bangs. However, officers would have found the weapons, ammunition, and other items whether or not they used little force or great force. The method of search had no causal connection to the discovery of the evidence. Therefore, the Ninth Circuit did not need to decide the reasonableness of the search. DENIAL OF SUPPRESSION AFFIRMED. The trial court did err in some of Defendant's convictions and sentences, which would be reversed or vacated and remanded as appropriate.
The dissent agreed that no-knock violations can no longer justify suppression, but would have held the search otherwise grossly unreasonable and would have granted suppression. The military-style invasion of Defendant's home was causally related to the discovery of evidence, and no intervening lawful search occurred to change that. Tossing two flash-bangs into occupied rooms was, without more, enough to establish unreasonableness. Officers later exchaged flippant text messages such as "fun had by all ... well except for the guy who laid on the flashbang" and "good time had by all." The social costs of suppression in this case would be well worth the deterrence value. The officers could just as well have run a reasonable, lawful search instead of an unreasonable, unlawful search, especially in the sanctity of someone's home.
EDITORIAL: I wasn't there and I'm no SWAT guy. Knowing the little that I know, I must say that if I had to serve warrants on a guy like that, I would be inclined to do about what the Portland police did here. The majority is right, as far as I can tell. And also as far as I can tell, the dissent is out to lunch on all levels. What does Judge Reinhardt want the police to do--give the violent woman-battering bad guys a fair chance to fight back? What does Judge Reinhardt know about proper deployment of flash-bangs? Who is to blame for giving this lefty a platform for inflicting such judicial buffoonery upon thinking people since 1980? Answers: sure looks like it, obviously nothing, and Jimmy Carter (who else?). This is not the first or last flat-out anti-police pro-criminal opinion from Judge Reinhardt, who has won numerous awards from criminal defense and plaintiff lawyer groups. You don't get those for being conservative. Remember, I am a former criminal defender and current consumer advocate, so I know.
Hey, did you notice something else? The bad guy was indeed so surprised and overwhelmed that he didn't even have time or thought to reach for his guns. No police officers or innocent people got hurt at all. I guess the bad guy can sue for his second-degree burns, but it's a classic case of "better judged by 12 than carried by 6." Do try to resist the urge for funny texts, though. The "judged by 12" part may go easier.
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