United States v. Vickie Appelquist ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3741
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Vickie Gail Appelquist, *
*
Defendant - Appellant. *
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Submitted: February 10, 1998
Filed: June 1, 1998
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Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Vickie Gail Appelquist appeals her conviction for possession with intent to
distribute marijuana seized during a warrant search of her home in Hot Springs,
Arkansas. She contends the district court1 should have granted her motion to suppress
because local police violated state law restrictions on nighttime searches, failed to
announce their purpose before entering her home, and improperly allowed local media
into her home to photograph the results of the search. We affirm.
1
The HONORABLE JIMM LARRY HENDREN, Chief Judge of the United
States District Court for the Western District of Arkansas.
A confidential informant cooperating with state and local police made a
controlled purchase of marijuana from Appelquist at her home at 7:30 p.m. on
November 19, 1996. The police immediately obtained a warrant to search her home
from a municipal court judge. At 8:30 p.m., two Garland County Sheriff’s deputies
knocked on the door of Appelquist’s home. There was no answer. Lieutenant Steed
knocked again and called out, “Police Officer. I need somebody to come to the door.”
There was still no response. Corporal Sanders knocked a third time and shouted,
“Sheriff’s Department, need somebody to come to the door.” Again, there was no
response. Sanders then kicked the door in, entered a hallway, and called out, “Police
officer; search warrant; need somebody to come out here.” Confronted by a dog,
Sanders called out three more times, “Police officer. Search warrant. Somebody get
this dog.” Appelquist and Mark Drake finally emerged from a bedroom.
The subsequent search uncovered 33.28 kilograms of marijuana, two firearms,
a pager, a police scanner, documents suggesting marijuana trafficking, and drug
paraphernalia. After admitting she had been distributing marijuana for approximately
one year, Appelquist pleaded guilty to the distribution offense, reserving her right to
appeal suppression issues.
1. Appelquist first argues that the evidence seized at her home must be
suppressed because the police violated Arkansas Rule of Criminal Procedure 13.2(c)
when they executed after 8:00 p.m. a warrant that did not contain the finding it “can
only be safely or successfully executed at nighttime.” Appelquist acknowledges the
general rule that federal courts do not suppress evidence seized by state officers in
conformity with the Fourth Amendment because of state law violations. See United
States v. Bieri, 21 F.3d 811, 816 (8th Cir.), cert. denied, 513 U.S. 878 (1994). But she
argues this principle should not apply because she was initially charged in state court,
and her motion to suppress was pending in that court when this federal prosecution
commenced. We disagree. That a suppression motion was previously filed in state
court is irrelevant to the inquiry under federal law; indeed, the general rule applies even
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when a motion to suppress was granted in an earlier state prosecution. See United
States v. Friend, 50 F.3d 548, 550-51 (8th Cir. 1995), vacated on other grounds, 517
U.S. 1152 (1996). Here, no federal interest is compromised by denying the motion to
suppress because the nighttime search was clearly valid under federal law. See 21
U.S.C. § 879 (drug trafficking search warrant “may be served at any time of the day or
night”); Fed. R. Cr. P. 41(h) (defining daytime “to mean the hours from 6:00 a.m. to
10:00 p.m.”). Moreover, it is not clear the state court would have granted Appelquist’s
motion to suppress. The warrant was not issued until 8:00 p.m., the warrant affidavit
requested authority to search at night, and the warrant expressly granted such authority.
In these circumstances, the state court might well have found omission of the required
preliminary finding to be a technical or insubstantial defect, in which case suppression
would have been denied under Ark. R. Cr. P. 16.2(e).
2. Appelquist next argues the evidence must be suppressed because the officers
failed to announce their purpose before forcibly entering her home. Sanders and Steed
knocked three times, and twice loudly identified themselves as police officers, but they
did not state that they were there to execute a search warrant until after they entered
Appelquist’s hallway. She relies upon 18 U.S.C. § 3109, which requires a federal
officer to give “notice of his authority and purpose” before breaking in to execute a
warrant. But § 3109 does not apply to state officers executing state warrants. See
United States v. Hawkins, 102 F.3d 973, 976 (8th Cir. 1996), cert. denied, 117 S. Ct.
1456 (1997); United States v. Moore, 956 F.2d 843, 846-47 (8th Cir. 1992).
Knock and announce principles are part of the Fourth Amendment requirement
that searches and seizures be reasonable. See Wilson v. Arkansas, 115 S. Ct. 1914,
1918 (1995). Safety and privacy interests are better served if police executing a warrant
announce their purpose as well as their identity before forcibly entering. Indeed, many
States have enacted statutes to that effect. See Miller v. United States,
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357 U.S. 301, 308 n.8 (1958) (collecting cites).2 But announcement is but one
“element of the reasonableness inquiry under the Fourth Amendment,” Wilson, 115 S.
Ct. at 1918, and at least three circuits have concluded in similar situations that police
did not violate even the more rigorous standards of § 3109 when they knocked,
identified themselves, but failed to state their purpose before forcibly entering. As the
Sixth Circuit stated in United States v. Finch, 998 F.2d 349, 354 (6th Cir. 1993):
[T]he identification of themselves as police and giving the occupants a
reasonable time to respond are far more constitutionally significant than
stating their purpose in demanding entry, and in the absence of special
circumstances, such as an inquiry from within, the failure to state the
purpose does not require suppression of evidence which is seized.
Accord United States v. Leichtnam, 948 F.2d 370, 372-74 (7th Cir. 1991); United
States v. One Parcel of Real Property, 873 F.2d 7, 9-10 (1st Cir.), cert. denied sub
nom., Latraverse v. United States, 493 U.S. 891 (1989). We agree with those decisions.
Viewing the totality of the circumstances in this case, we conclude that the officers’
failure to announce their purpose until they were in Appelquist’s hallway does not
render the subsequent search and seizure constitutionally unreasonable.
3. Fifteen or twenty minutes into the search, police called the local prosecutor,
who in turn alerted Walter King, a photographer and bureau chief for a local television
station. King went to Appelquist’s home and videotaped her being taken from the house
and put into a police car. After the search, the police brought King and a photographer
from a Hot Springs newspaper into the house to videotape the seized drugs. Appelquist
argues the media presence violated Ark. R. Crim. P. 13.3(a), 18 U.S.C. § 3105, and her
Fourth Amendment rights. Only the Fourth Amendment
2
Arkansas lacks such a statute. The Arkansas courts examine knock and
announce issues from a general reasonableness perspective. See Dodson v. State, 626
S.W.2d 624, 626-29 (Ark. Ct. App.), cert. denied, 457 U.S. 1136 (1982).
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governs the suppression of evidence seized by state and local officials. Although we
do not encourage or condone such conduct, it is undisputed that the police invited the
two private photographers into Appelquist’s home only after the police completed the
warrant search. We therefore agree with the district court that this police conduct is not
a basis for suppressing evidence seized in a valid and completed search. Cf. United
States v. Hornbeck, 118 F.3d 615, 617 n.4 (8th Cir. 1997).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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