United States v. Dice ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0005P (6th Cir.)
File Name: 00a0005p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellant,


No. 98-3092
v.

>
ROBERT DICE, 
Defendant-Appellee. 
1
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 96-00136—John D. Holschuh, District Judge.
Argued: December 9, 1999
Decided and Filed: January 6, 2000
Before: JONES, COLE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Louis M. Fischer, DEPARTMENT OF
JUSTICE, CRIMINAL DIVISION, APPELLATE SECTION,
Washington, D.C., for Appellant. Gordon Hobson,
FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellee. ON BRIEF: Louis M. Fischer,
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
APPELLATE SECTION, Washington, D.C., for Appellant.
1
2 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 15
Gordon Hobson, FEDERAL PUBLIC DEFENDER’S information used to obtain the warrant. [O]fficers, in
OFFICE, Columbus, Ohio, for Appellee. William A. executing a valid search warrant, could break in doors of
Hasselbach, RITTGERS & MENGLE, Lebanon, Ohio, for private homes without sanction.
Amicus Curiae.
986 F.2d at 1220.
_________________
C.
OPINION
_________________ Although the Government indirectly calls upon the
“inevitable discovery doctrine” in its brief, it does not and can
NATHANIEL R. JONES, Circuit Judge. This case arises not make such an argument. To prevail under that doctrine,
from a battle in the “war on drugs” that the Government lost the government must show “that the evidence inevitably
because it failed to abide by one of the key rules of would have been obtained from lawful sources in the absence
engagement. Specifically, the district court found a violation of the illegal discovery.” Leake, 95 F.3d at 412. This requires
of the Fourth Amendment’s knock-and-announce rule and the government to proffer clear evidence “of an independent,
excluded evidence seized in the resulting search. untainted investigation that inevitably would have uncovered
Acknowledging its constitutional infraction, the United States the same evidence” as that discovered through the illegal
challenges the district court’s suppression order on more search. Id. Here, the government has not done this. In fact,
narrow grounds. For the reasons stated below, we AFFIRM. the record evinces that there was only one investigation into
Dice’s activity, and that investigation culminated in the illegal
I. entry we are now scrutinizing.
A. IV.
The seriousness of the resulting suppression order prompts The excessive zeal displayed by the enforcement officers
us to set forth in considerable detail the facts adduced before cannot be countenanced even in the interest of battling our
the district court. nation’s drug woes. As Lord Atkins declared to his fellow
countrymen in World War II, “In England, amidst the clash of
On October 31, 1996, Defendant-Appellee Dice was arms, the laws are not silent.” Nor is our Constitution during
indicted in the United States District Court for the Southern our nation’s “war on drugs.” We therefore AFFIRM the
District of Ohio on one count of manufacturing and district court’s suppression order.
possessing with intent to manufacture and distribute more
than 1,000 marijuana plants, in violation of 21 U.S.C.
§ 841(a)(1); and one count of maintaining a place to
manufacture a controlled substance, in violation of 21 U.S.C.
§ 856(a)(1). On November 25, 1996, Dice moved to suppress
evidence that was seized pursuant to a search warrant, and
also moved to suppress oral statements he made during the
execution of the warrant. On February 19, 1997, the district
court held an evidentiary hearing on the motions to suppress,
and on June 19, the court granted both motions. After the
14 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 3
unconstitutional, and evidence secured pursuant to that search court denied the Government’s motion for reconsideration,
is inadmissible as direct fruit of the illegal search, justifying the Government filed a notice for an interlocutory appeal to
the suppression order of the district court in this case.4 this Court. On appeal, we are faced with only one question:
whether the acknowledged violation of the knock-and-
Finally, we reject the Government’s position because it announce rule during the execution of a valid search warrant
would completely emasculate the knock-and-announce rule. should result in the suppression of evidence seized in the
As stated supra, the requirement that officers reasonably wait search following the violation.
is a crucial element of the knock-and-announce rule. To
remove the exclusionary bar from this type of knock-and- B.
announce violation whenever officers possess a valid warrant
would in one swift move gut the constitution’s regulation of 1.
how officers execute such warrants. As the Marts Court
observed, the knock-and-announce rule On June 2, 1994, a confidential informant told Pike County
Police Chief Deputy John R. Hull (“Hull”) that Dice’s
would be meaningless since an officer could obviate residence--located at 97 Magaw Road–was using a large
illegal entry in every instance simply by looking to the amount of electricity. The informant further told Hull that
Dice was conducting an indoor marijuana cultivation
operation. Hull then subpoenaed the utility records for the
residence, ascertaining that Dice’s monthly utility bills were
In United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), the up to ten times as high as the average home in the area. Hull
Seventh Circuit found that a warrant was not sufficiently specific to
satisfy the Fourth Amendment, but that the exclusionary rule should not next conducted daytime surveillance of the residence,
apply despite this shortcoming. Thus, Stefonek does not speak directly to observing covered windows, nine air vents on the roof, and
the situation in this case, but only to the general discretion courts have in missing and buckling shingles on the roof. He also observed
whether or not to apply the exclusionary rule following Fourth two dogs that appeared to be guarding the house.
Amendment violations. Because it concluded that “if the warrant had
complied with the Fourth Amendment, the very same evidence would On June 8, 1994, Agent Tim Gray of the DEA Task Force
have been seized as was seized,” the court held that exclusion was not
appropriate. Id. at 1035. Once again, we find the Seventh Circuit’s of Columbus produced a thermal image videotape of Dice’s
decision eschewing the remedy of exclusion in certain cases neither residence. The tape revealed a comparatively large amount of
relevant nor persuasive for this case. heat escaping through the roof of the residence. At the
suppression hearing, Gray testified that this amount of heat
4
Indeed, because the evidence is the direct fruit of an unconstitutional was one factor that might indicate the use of a marijuana
search, there is no need to inquire as to whether the evidence was “grow light.”
obtained “through the exploitation of an initial illegality,” as the
government asks us to do. Gov’t Br. at 11. That is an inquiry that is only Armed with this evidence, Hull applied for a search warrant
performed when there is a later, valid search, and a court must determine
if evidence from the valid search can be indirectly linked to information for the residence on June 8. After conducting a hearing on the
garnered in the initial, invalid search. See generally Murray, 487 U.S. at warrant application at which he considered the proffered
542-44 (remanding to determine if information from an illegal search evidence, as well as testimony regarding the use of the
contributed to the warrant that, when executed, led to the seizure of thermal imager, the Pike County judge issued the warrant
contraband); United States v. Markling, 7 F.3d 1309, 1315 (7th Cir. 1993) that day. In his motion to suppress, Dice challenged the
(stating that the proper inquiry was whether the illegally obtained
evidence “affected the magistrate’s decision to issue the search warrant” issuance and execution of the warrant, and the veracity of
which led to a valid second search).
4 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 13
information provided to the judge and contained in the In this case, there was but one entry, and it was illegal. The
warrant. officers seized the evidence in question directly following that
illegal entry. Knock-and-announce caselaw in this circuit
2. and others makes very clear that such evidence is
inadmissible as the direct fruit of that search. See, e.g., Bates,
On June 8, the Pike County Sheriff’s Office obtained 84 F.3d at 795. This is so even if that entry would have
assistance from the emergency response team of the Ross otherwise been legal because it was made pursuant to a valid
County Sheriff’s Office to make the actual entry into Dice’s search warrant. Indeed, the knock-and-announce rule
residence. The evidence is conflicting regarding how the presupposes that the entry is for a valid purpose--it merely
officers entered the house. Officer David Large, who was prescribes the method by which that entry should be made in
part of the entry team, described the approach and entry at the order best to protect the interests of the private resident. In
suppression hearing. As they approached the residence, Large other words, a knock-and-announce violation deems a search
testified, the officers announced that they were deputy sheriffs illegal due to the unlawful method in which it was executed
and that they had a search warrant. Another sergeant then even if the search were legal in its purpose and authority (as
knocked on the door, waited “a few” seconds, and on hearing demonstrated by a valid warrant). The admissible evidence
movement in the house, forced the door open. On cross- from cases such as Segura and Moreno all arose from
examination, Large acknowledged that the entry team had no searches which had both a valid warrant (purpose) as well as
information indicating that Dice was armed or dangerous, and a legal entry (method). Here, we only have the former.
also had no information that anyone in the home was at risk
of harm; he also acknowledged that they had not been refused Once the distinction between the “two-search cases” and a
entry into the home. After knocking down the door, a number “one-search case” such as this and Marts is clear, there is no
of officers entered the residence to execute the search warrant. caselaw to support the Government’s theory that the warrant
Inside, they discovered a marijuana cultivation operation, itself serves as an independent 3source for evidence seized
with marijuana plants growing throughout the house. following a single, illegal search. Rather, the search is flatly
Ultimately, the police seized more than 1,900 marijuana
plants, as well as grow lights, other gardening, plumbing and
electrical equipment used for indoor cultivation of marijuana, 3
The additional cases that the Government recently brought to the
and fertilizer. Court’s attention through a supplemental filing are distinguishable. To
the extent that they are analogous to this case, these decisions do not
Dice testified that he was in the kitchen when the officers square with the law of this Circuit. Specifically, the Government cited
arrived outside of his house, and had begun to walk into the two Seventh Circuit cases that it argues support the proposition that
living room when they entered. He stated that he heard neither “suppression of evidence is not warranted because of the inevitable
an announcement nor a knock at the door; rather, he simply discovery doctrine.” In United States v. Jones, 149 F.3d 715 (7th Cir.
1998), two teams entered defendant’s house--one through the front door
heard his dogs barking loudly, followed by the officers and one through the back door. The “front-door team” committed a
crashing through the door. knock-and-announce violation. But Judge Easterbrook, writing for the
majority, held that “because by the time the front-door team entered
In his motion to suppress, Dice challenged the entry as a [Jones] was already in the custody of the back-door team,” which had
clear violation of the knock-and- announce rule under the apprehended him properly, there had clearly been a search independent of
Fourth Amendment. the knock-and-announce violation. Id. at 716. Only in dicta did the court
cast doubt on whether the exclusionary rule should apply in “marginal”
knock-and-announce violations, id. at 716-17 (leaving that question “for
another day”), a proposition with which we disagree.
12 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 5
court decisions, the Government believes that because the 3.
police had a valid search warrant prior to entering the
residence, and the evidence would have been discovered had On initially observing the inside of the residence, the
the officers fully complied with the knock-and-announce officers arrested Dice and read him a Miranda warning. Dice
requirement, the evidence is admissible under the independent responded that he wanted to speak to an attorney, at which
source doctrine. This argument simply misunderstands that point the officers ceased questioning him. Nevertheless, after
doctrine. officers requested that he turn on some exhaust fans to cool
down the house (which was hot primarily due to the growing
The cases on which the Government relies are operation), and following a statement by one officer that they
distinguishable from this case because they all involved a were “nice plants,” Dice began to talk about the quality of his
second search pursuant to a valid warrant, and that second plants and the methods he used to grow them. Although Hull
search was independent of the illegal initial search. In testified that he warned Dice he was violating his request to
Segura, for example, the officers initially entered an remain silent, and that the officers re-read him his Miranda
apartment without a warrant--a clear constitutional violation. rights, another officer brought a tape recorder into the house
The next day, pursuant to a warrant that was based on and taped some of Dice’s incriminating statements.
information wholly independent of their observations while
illegally in the apartment, officers seized considerable C.
contraband in their search of the same apartment. See Segura,
468 U.S. at 800-01. The Court held this evidence admissible In the district court, Dice challenged the warrant itself, the
under the independent source rule because there was “an execution of the warrant, and the alleged Miranda1violation.
independent source for the warrant under which that evidence The court rejected Dice’s challenge of the warrant, and Dice
was seized.” See id. at 813-14. Of course, Segura did not did not appeal this decision.
alter the lower court’s conclusion that the items observed in
the initial, illegal search were inadmissible. See 468 U.S. at Regarding the execution of the warrant, the district court
804. Murray also involved two entries: an initial illegal credited the testimony of the officers who stated that they
search and a later search pursuant to a warrant in which knocked on the door and announced their presence and
officers seized evidence. See 487 U.S. at 535-36. The Court purpose. Nevertheless, based on the officers’ testimony that
remanded the case for a determination of whether the warrant they only waited a “few” seconds after knocking before
for the second search resulted from information obtained in violently entering the house, the court found that the officers
the initial illegal entry, or from information independent of had not provided a reasonable opportunity for Dice to respond
that entry. See id. at 543-44. Finally, in United States v. to their knock and announcement. In addition, the court
Moreno, 758 F.2d 425 (9th Cir. 1985), on which the found that the government had not proven any of the
Government relies, a second, legal search took place after an
initial illegal search. Because the evidence was obtained only
after the latter, lawful entry, that evidence was admissible
under the independent source doctrine. See id. at 427. See
also Calhoun, 49 F.3d at 234 (finding that evidence was 1
Among other arguments, Dice alleged that the statements made in
admissible because it came from a second, valid search made the affidavit presented to the Pike County judge were false; that the
after defendant’s consent and not from an initial illegal warrantless use of the thermal imaging technology was improper; that the
search). data from the thermal inspection was not reliable; and that the judge
improperly relied on an unreliable confidential source.
6 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 11
exceptions to the knock-and-announce rule.2 Focusing the independent source doctrine requires an independent, legal
primarily on the “destruction of evidence” exception, the search to have taken place. We do not find this effort
court concluded that the extensive evidence within Dice’s convincing.
residence could not have been easily destroyed. Moreover,
the mere detection of “movement” inside the house and the First, we reject the Government’s categorization of knock-
presence of barking dogs were not sufficient to provide a and-announce violations into different degrees of severity
basis for a reasonable suspicion that evidence was being meriting different remedies. See Gov’t Br. at 19-20 (creating
destroyed. The court therefore concluded that the search was three categories of knock-and-announce violations, and
constitutionally unreasonable. It therefore ordered the labeling the failure to knock as “the most egregious
suppression of all evidence obtained during the execution of violation,” more severe than failing to wait). A court can not
the search warrant, including all the physical evidence seized sever the requirement that an officer wait a reasonable time
and Dice’s statements. before forcing his way into a residence from the requirement
that he knock and announce his presence in the first place. To
Finally, the district court held that because an officer the contrary, only together do these requirements serve the
initiated the conversation in which Dice described his crimes, interests described in Bates: 1) reducing the potential for
Dice had not waived his Miranda rights. Dice’s statements violence to both the police officers and the occupants of the
were thus obtained in violation of the Fifth Amendment. This house into which entry is sought; 2) curbing the needless
issue is not on appeal. destruction of private property; and 3) protecting the
individual’s right to privacy in his or her house. See 84 F.3d
Following the suppression order, the Government filed a at 794. After all, knocking without properly waiting for
motion for reconsideration, arguing that despite the knock- admittance contravenes each of these three interests as much
and-announce violation, suppression of all the evidence was as if the knock had never taken place at all. Indeed, this Court
not the appropriate remedy due to the independent source has previously emphasized the crucial role played by the
rule. Finding the evidence to have been a direct result of the waiting element in particular: “the identification of
violation, the district court rejected this argument and denied themselves as police and giving the occupants a reasonable
the motion. time to respond are far more constitutionally significant” than
the requirement that officers state their purpose. Finch, 998
II. F.2d at 354 (emphasis added). Finally, the Government’s
attempt to downplay the need for officers to wait a reasonable
This Court reviews de novo the district court’s legal time simply overlooks that the knock-and-announce rule
conclusion regarding the suppression of evidence for a knock- exists to benefit private residents. See id. at 353. To those
and-announce violation. See United States v. Bates, 84 F.3d residents, of course, the mere knocking by an officer protects
790, 794 (6th Cir. 1996). no interests whatsoever if they are not given ample time to
respond.
2 We also wholly reject the Government’s reliance on the
As discussed infra, these circumstances are that 1) the persons independent source rule in this context--trying to recast
inside already know of the officers’ authority and purpose; 2) the officers
have a justified belief that someone is in imminent peril of bodily harm, evidence that is in fact the direct fruit of an unconstitutional
or 3) the officers have a justified belief that those within are aware of search as indirect evidence from an independent source.
their presence and are engaged in escape or destruction of evidence. See Pointing to cases such as Murray, Segura, and several circuit
United States v. Finch, 998 F.2d 349, 353 (6th Cir. 1993).
10 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 7
Supreme Court has long provided that when knowledge or III.
possession of evidence is gained from an independent and
lawful source, that evidence is admissible. See Murray, 487 On appeal, the Government has conceded that the scant
U.S. at 538. To be admissible, the government must show amount of time between its knock and entry rendered the
that the evidence was discovered through sources “wholly entry unreasonable under the Fourth Amendment. Having
independent of any constitutional violation.” United States v. done so, it nonetheless repeats its position from below that
Leake, 95 F.3d 409, 412 (6th Cir. 1996) (quoting Nix v. this isolated error amid an otherwise valid search should not
Williams, 467 U.S. 431, 442-43 (1984)). This doctrine is lead to suppression of the evidence seized. The Government
anchored in the notion that although the government should essentially seeks a rule--derivative of the “independent source
not profit from its illegal activity, “neither should it be placed doctrine”--that when police officers have a valid warrant, and
in a worse position than it would otherwise have occupied.” make a proper knock and announcement, but fail to wait a
United States v. Calhoun, 49 F.3d 231, 234 (6th Cir. 1995) reasonable time before forcing their way into a residence, the
(quoting Murray, 487 U.S. at 482). exclusionary rule should not apply to evidence thereafter
seized. We can not accept this position because it defies clear
This “independent source doctrine” deems evidence precedent in two critical areas of Fourth Amendment law.
admissible in those situations where an illegal search takes
place at some point during a criminal investigation, but where A.
a proper, independent search led to the evidence in question.
In Segura, for instance, the Court held that because a second 1. The Knock-and-Announce Rule
search pursuant to a warrant was undertaken independent of
an initial illegal search, evidence resulting from the latter Absent certain exigent circumstances, it is unreasonable
search was admissible despite the initial illegal entry. See 468 under the Fourth Amendment for an officer to enter a
U.S. at 813-14. In other words, the Court concluded that the dwelling without first knocking and announcing his presence
evidence would have been found even if the illegal entry had and authority. See Wilson v. Arkansas, 514 U.S. 927, 934
never taken place: “Had police never entered the apartment (1995); Ingram v. City of Columbus, 185 F.3d 579, 588 (6th
. . ., the contraband now challenged would have been Cir. 1999); Bates, 84 F.3d at 795. The knock-and-announce
discovered and seized precisely as it was here.” Id. at 814. In rule protects several important interests, including 1) reducing
Calhoun, despite an initial illegal search, evidence acquired the potential for violence to both the police officers and the
as a result of a defendant’s consent was admissible because occupants of the house into which entry is sought; 2) curbing
that consent was voluntary and independent of the initial the needless destruction of private property; and 3) protecting
illegality. See 49 F.3d at 234. See also, e.g., United States v. the individual’s right to privacy in his or her house. See
Salas, 879 F.2d 530, 537-38 (9th Cir. 1989) (admitting Bates, 84 F.3d at 794. At its heart, the rule exists to protect
evidence obtained pursuant to valid search warrant after the occupants of private residences. See Finch, 998 F.2d at
initial illegal entry). 353. To protect these interests, evidence procured “ensuing”
the execution of a warrant which lacked a proper knock and
B. announcement is inadmissible. Bates, 84 F.3d at 795. See
also Miller v. United States, 357 U.S. 301, 313-14 (1958)
The government’s argument here is no more than an (holding that because “the petitioner did not receive [] notice
attempt to circumvent this clear and binding precedent that before the officers broke the door to invade his home, the
knock-and-announce violations require suppression and that arrest was unlawful and the evidence seized should have been
suppressed”); Sabbath v. United States, 391 U.S. 585, 586
8 United States v. Dice No. 98-3092 No. 98-3092 United States v. Dice 9
(1968) (holding that because officers entered without a proper the common law knock-and-announce rule, and those same
knock and announcement, the subsequent arrest was invalid common law principles inform the Fourth Amendment
and the “evidence seized in the subsequent search” was analysis. See United States v. Ramirez, 118 S. Ct. 992, 997
inadmissible); United States v. Becker, 23 F.3d 1537, 1541-42 (1998); see also Finch, 998 F.2d at 354 (stating that “giving
(9th Cir. 1994) (excluding evidence due to a knock-and- the occupants a reasonable time to respond” to a knock and
announce violation) (cited in Bates, 84 F.3d at 795). announcement was “constitutionally significant”); United
States v. Marts, 986 F.2d 1216, 1217-18 (8th Cir. 1993)
This Court has determined that exigent circumstances (stating that defendants must be granted “adequate time to
relieve officers of the knock-and-announce requirement in grant admittance to the officers”).
three situations: when 1) the persons within the residence
already know of the officers’ authority and purpose; 2) the 2. The Independent Source Doctrine
officers have a justified belief that someone within is in
imminent peril of bodily harm; or 3) the officers have a The general remedy for a Fourth Amendment violation is
justified belief that those within are aware of their presence that evidence obtained due to the unconstitutional search or
and are engaged in escape or the destruction of evidence. See seizure is inadmissible. The scope of evidence to be excluded
Finch, 998 F.2d at 353. See also Wilson, 514 U.S. at 936 sweeps broadly, including both “[e]vidence obtained as a
(stating that announcement was unnecessary when it would direct result of an unconstitutional search or seizure,” as well
constitute a “senseless ceremony”). The burden of proof rests as evidence that is considered the “‘fruit’ of a prior illegality”
with the government to show such circumstances. Here, the that was “come at by exploitation of [the initial] illegality.”
government concedes that none of these circumstances Segura v. United States, 468 U.S. 796, 804 (1984); see also
existed. New York v. Harris, 495 U.S. 14, 19 (1990) (“[T]he indirect
fruits of an illegal search or arrest should be suppressed when
An integral part of the knock-and-announce rule is the they bear a sufficiently close relationship to the underlying
requirement that officers wait a “reasonable” period of time illegality.”)(citation omitted); Murray v. United States, 487
after a knock before physically forcing their way into a U.S. 533, 536-37 (1988) (stating that the exclusionary rule
residence. Finch, 998 F.2d at 354. This gives the private prohibits evidence “that is the product of the primary
resident the opportunity to allow them into the residence. evidence, or that is otherwise acquired as an indirect result of
the unlawful search, up to the point at which the connection
We note that law enforcement officers may not take with the unlawful search becomes so attenuated as to dissipate
lightly the requirement of § 3109 that bursting into the taint”) (citation omitted). As stated supra, this Court
apartments is permitted only “after notice of [the applies the exclusionary rule to knock-and-announce
officers’] authority and purpose [and they are] refused violations. See Bates, 84 F.3d at 795; see also Sabbath, 391
admittance. . . . 18 U.S.C. § 3109. Cases in which U.S. at 586; Miller, 357 U.S. at 313-14.
officers make a forced entry seconds after announcing
their authority and purpose will be carefully scrutinized At the same time, the Supreme Court has stated that “as
in the future to determine whether there is compliance ‘with any remedial device, the application of the
with the requirements of § 3109. [exclusionary] rule has been restricted to those areas where its
remedial objectives are thought most efficaciously served.’”
United States v. Nabors, 901 F.2d 1351, 1354-55 (6th Cir. Segura, 468 U.S. at 804 (quoting United States v. Calandra,
1990). Although Nabors interpreted 18 U.S.C. § 3109, 414 U.S. 338, 348 (1974)). Heeding this statement, the
Supreme Court holdings have made clear that § 3109 codified