No. 96-1469

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITED STATES OF AMERICA , PETITIONER

v.

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE  NINTH  CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Solicitor General

MICHAEL R. DREEBEN
Deputy Solicitor General

ALAN JENKINS
Assistant to the Solicitor
General

J. DOUGLAS WILSON
Attorney

Deparment  of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------
      
QUESTION PRESENTED

Whether police officers must possess more specific
evidence of danger to themselves or others in order to
justify a no-knock entry in which they damage a door
or window than would be required to justify a no-
knock entry made without damage to property.

(I)

---------------------------------------- Page Break ----------------------------------------

TABLE OF CONTENTS

Opinions  below . . . . 1 
Jurisdiction . . . .  1
Constitutional and statutory provisions  involved . . . . 2 
Statement . . . . 2
Reasons for granting the petition . . . . 9 
Conclusion . . . . 22
Appendix A . . . . 1a
Appendix B . . . . 28a
Appendix C . . . . 37a
Appendix D . . . .  42a
Appendix E . . . .  48a

TABLE OF AUTHORITIES

Cases:

Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995) . . . .  19
Buckley v. Beaulieu, 104 Me. 56 (1908) . . . . 14
Chimel  v. California, 395 U.S. 752 (1969) . . . . 16
Dalia v. United States, 441 U.S. 238 (1979) . . . . 12
Graham  v. Connor, 490 U.S. 386 (1989) . . . . 14
Illinois v. Gates, 462 U. S. 213 (1983) . . . . 17
Illinois   v. Rodriguez, 497 U.S. 177(1990) . . . . 17
Ker v. California, 374 U.S. 23 (1963) . . . . 17
Maryland v. Buie, 494 U.S. 325 (1990) . . . . 15
Maryland v. Garrison, 480 U.S. 79(1987) . . . . 14 
Maryland v. Wilson, No. 95-1268 (Feb. 19,
1997) . . . . 15
Michigan v. Long, 463 U.S. 1032 ( 1983) . . . . 15
Michigan v. Summers, 452 U.S. 692 (1981) . . . . 13, 15 
Payton  v. New York, 445 U.S. 573(1980) . . . . 18
Pennsylvania v. Mimms, 434 U.S. 106(1977) . . . . 15
Read v. Case, 4 Conn. 166(1822) . . . . 11
Sabbath v. United States, 391 U.S. 585(1968) . . . . 10, 11 
Terry v. Ohio, 392 U.S. 1 (1968) . . . . 16

(III)

---------------------------------------- Page Break ----------------------------------------

IV

Cases-Continued               Page

United States v. Becker, 23 F.3d 1537 (9th Cir.
1994) . . . .  6, 7, 12, 14, 19
United States v. Brown, 52 F.3d 415 (2d Cir.
1995), cert. denied, 116 S. Ct. 754 (1996) . . . .  20
United States v. Dahlman, 13 F.3d 1391 (10th
Cir. 1993), cert. denied, 511 U.S. 1045 (1994) . . . . 19-20, 21
United States v. Gordils, 982 F.2d 64 (2d Cir.
1992), cert. denied, 507 U.S. 1054 (1993) . . . .  20
United States v. Kemp, 12 F.3d 1140 (D.C. Cir.
1994) . . . . 10, 13
United States v. Kennedy, 32 F.3d 876 (4th Cir.
1994), cert. denied, 115 S. Ct. 939 (1995) . . . .  19
United States v. Lalor, 996 F.2d 1578 (4th Cir.),
cert. denied, 510 U.S. 983 (1993) . . . . 19
United States v. Maden, 64 F.3d 1505 (10th Cir.
1995) . . . . 20
United States v. McConney, 728 F.2d 1195 (9th
Cir.), cert.  denied, 469 U.S.  824 (1984) . . . .  12

United States v. Spinelli, 848 F.2d 26 (2d Cir.
1988) . . . .  20
United States v. Stewart, 867 F.2d 581 (10th
Cir. 1989) . . . .  20
United States v. Stowe, 100 F.3d 494 (7th Cir.
1996), petition for cert. pending, No. 96-7439 . . . .  20
United States v. Whitney, 633 F.2d 902 (9th Cir.
1980), cert. denied, 450 U.S. 1004 (1981) . . . . 14
Vale v. Louisiana, 399 U.S. 30 (1970) . . . . 18
Wilson v. Arkansas, 115 S. Ct. 1914 (1995) . . . .  8, 10,
                                                                               11, 12, 19
Ybarra  v. Illinois, 444 U.S. 85 (1979) . . . . 18

Constitution and statutes:

U.S. Const. Amend. IV . . . .  2, 5, 11, 13, 15, 16, 18
18 U.S.C. 922(g)(l) . . . . 2, 5
18 U.S.C. 3109 . . . .  2, 5, 10, 11, 16, 18

---------------------------------------- Page Break ----------------------------------------

v

Page

Miscellaneous:

2 Wayne R. LaFave, Search and Seizure (3d ed.
1996) . . . . 10, 13

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of  the United States

OCTOBER TERM, 1996

No.

UNITED STATES OF AMERICA, PETITIONER

v.

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
     FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the
United States, petitions for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
      
OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-
27a) is reported at 91 F.3d 1297, The opinion of the
district court (App., infra, 28a-36a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on
August 2, 1996. A petition for rehearing was denied
on November 15, 1996 (App., infra, 48a). On February
4, 1997, Justice O'Connor extended the time for filing
a petition until March 15, 1997 (a Saturday). The

(1)

---------------------------------------- Page Break ----------------------------------------

2

jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

    The Fourth Amendment to the United States Con-
stitution provides:

    The right of the people to be secure in their per-
sons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be vio-
lated, and no warrants shall issue, but upon prob-
able cause, supported by Oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.
    Section 3109 of Title 18 of the United States Code
provides:

Breaking doors or windows for entry or exit
    
    The officer may break open any outer or inner
door or window of a house, or any part of a house,
or anything therein, to execute a search warrant,
if, after notice of his authority and purpose, he is
refused admittance or when necessary to liberate
himself or a person aiding him in the execution of
the warrant.

STATEMENT

A grand jury in the District of Oregon returned an
indictment charging respondent with possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(l). Respondent moved to suppress evidence ob-
tained during a search of his residence, including the
two firearms that formed the basis for the offense
charged in the indictment. The district court granted

---------------------------------------- Page Break ----------------------------------------

3

the motion. App., infra, 28a-36a. The court of appeals
affirmed. Id. at 1a-27a.
    1. On November 2, 1994, while en route to testify at
a state criminal trial, federal inmate Alan Lawrence
Shelby slipped out of his handcuffs, assaulted a depu-
ty sheriff, and escaped from custody. At the time,
Shelby was serving concurrent sentences for federal
drug and firearms violations, and for a state armed
robbery conviction.  App., infra, 2a, 32a-33a. On
November 4, 1994, Deputy U.S. Marshal Wayne   
Kauffmann applied for a warrant to search respon-
dent's residence in Boring, Oregon, for Shelby. Id. at
41a. The affidavit in support of the warrant applica-
tion recounted that a reliable confidential informant
had seen a person believed to be Shelby at respon-  
dent's residence. The person had been introduced to
the informant as "Alan," and had stated in the infor-
mant's presence, "I had to knock out a guard." Id. at
39a. According to the affidavit, after receiving that   
information, the informant and an agent with the
Bureau of Alcohol, Tobacco, and Firearms had driven   
past respondent's residence and seen a man "who they
believed to be Alan Shelby outside the residence." Id.
at 39a-40a. Deputy Marshal Kauffmann's affidavit
further stated that he had then driven to respondent's
residence and seen someone who, Kauffmann believed,   
was the same person seen by the ATF agent. Id. at
40a.
    The affidavit also described the basis for Deputy
Marshal Kauffmann's belief that "Shelby is an ex-
treme danger to law enforcement officers." App.,
infra, 41a. In particular, it stated that Shelby had
previously been convicted of conspiracy to manu-
facture methamphetamine, possession of metham-
phetamine with intent to distribute it, and using or

---------------------------------------- Page Break ----------------------------------------

4

carrying a firearm during and in relation to a drug
trafficking offense; that Shelby "had a history of
violent escapes"; and that Shelby had stated that he
would not "do federal time." Id. at 38a.
According to the affidavit, in 1991 Shelby had at-
tempted to escape from custody "by striking a correc-
tions officer in the face and kicking out the door of the
jail. Shelby ran from the jail and assaulted a woman
in a parking lot and stole her vehicle. During the
escape attempt, Shelby rammed a police vehicle with
the stolen vehicle." App., infra, 38a. The affidavit
further stated that Shelby "has made threats to kill
witnesses and police officers associated with his in-
carceration" and that he "has brutally tortured
others in the past with a hammer."  Id. at 38a-39a.
Finally, the affidavit stated that Shelby "has had ac-
cess to large caches of weapons." Id. at 39a. See also
id. at 33a.
Based on the information in the affidavit, a magis-
trate judge issued a warrant to search respondent's
residence for Shelby. The warrant expressly pro-
vided that, "because of exigent circumstances shown
in the application, you are authorized to enter the
premises without complying with the Knock-and-
Announce requirement." C.A. E.R. 27.
Before they executed the warrant, officers learned
from the informant that respondent Ramirez "was
possibly involved in drugs, which he kept in the
garage," and that "there were supposed to be several
guns in [respondent's] garage." App., infra, 3a, 33a,
43a-44a. On November 5, 1994, at about 6:15 a.m.,
approximately 45 law enforcement officers surround-
ed respondent's house. Using a loudspeaker, a police
officer announced the officers' presence and ordered
the occupants of the dwelling to come out. At the

---------------------------------------- Page Break ----------------------------------------

5

same time, a police officer broke open the window of
the garage attached to the house, while another
officer shouted "Sheriff's Office, Search Warrant."
Id. at 3a-4a, 29a, 44a.
    Awakened by the police activity, respondent ini-
tially thought that his house was being burglarized.
He ran to a closet, obtained a gun, and fired it into the
ceiling. A short time later, respondent realized that
the police had surrounded the house, and he surren-
dered. After receiving and waiving his Miranda
rights, respondent admitted that he was a convicted
felon and that he owned the gun that he had fired, as
well as another firearm. Respondent further admit-
ted that a man resembling Shelby had been at his
house two days earlier. Based on respondent's state-
ment, and the officers' observation of the gun respon-
dent had fired, the officers obtained a second search
warrant and seized the two firearms. App., infra, 4a,
29a, 45a-46a.
    2. Respondent was charged with possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(1). He moved to suppress the firearms seized
from his house, and the district court granted the
motion. App., infra, 28a-36a. The court found that the
warrant to search respondent's house for Shelby was
supported by probable cause. Id. at 30a-31a. It con-
cluded, however, that the officers had violated the
federal knock-and-announce statute, 18 U.S.C. 3109,
and the Fourth Amendment because their reasons for
making an unannounced entry were insufficient to
justify breaking the window of Ramirez's garage as
they announced their presence. App., infra, 31a-35a.
    The court stated that, under Ninth Circuit prece-
dent, "mild exigency, such as knowledge that a person
is dangerous, can justify an immediate entry that is

---------------------------------------- Page Break ----------------------------------------

6

done without physical destruction of property," but an
"entry that is accomplished by physical destruction
of property [requires] more specific inferences of
exigency." App., infra, 32a (citing United States v.
Becker, 23 F.3d 1537, 1540-1541 (9th Cir. 1994)). The
court acknowledged that "there were specific facts
known regarding Shelby's propensity to attempt es-
cape, his disdain for federal incarceration, and his
past willingness to use threats and violence as a
means of intimidation." Id. at 34a. Those facts, the
court concluded, presented "sufficient exigent cir-
cumstances to have allowed immediate entry into [re-
spondent's] residence where entry could be obtained
without physical destruction of property." Id. at 33a.
    The court held, however, that the government had
not demonstrated sufficient exigency to justify break-
ing respondent's window during the search because
"there was no information that [Shelby] was armed
and dangerous at [respondent's] home, or that he
would present any specific dangers to arresting of-
ficers if found there." App., infra, 34a. In the court's
view, the officers' decision to break a garage win-
dow in the course of serving the warrant, "although
prompted by a knowledge of Shelby's past, was not
sufficiently supported by circumstances suggesting
that the fugitive posed a particular danger to others
during this attempted apprehension." Id. at 34a-35a.
Because it concluded that the bases for the second
search warrant, and the subsequent seizure of re-
spondent's firearms, were "direct consequences of the
manner in which the first warrant was executed," the
court ordered that the weapons be suppressed. Id. at
35a.
    3. A divided panel of the court of appeals affirmed.
App., infra, 1a-27a. The majority stated that "exigent

---------------------------------------- Page Break ----------------------------------------

7

circumstances can justify breaking into a house with-
out notice."  Id. at 8a. It further stated, however,
that, "[w]hen exigency is claimed, we must determine
what kind of exigency it was." Ibid.
Like the district court, the majority employed the
two-tiered analysis required by circuit precedent. It
explained that, while "even a mild exigency, like
knowledge that a person is dangerous, can justify
immediate entry where that can be done without any
physical disruption of property," App., infra, 8a (quot-
ing Becker, 23 F.3d at 1540), "[m]ore specific infer-
ences of exigency are necessary" where the destruc-
tion of property is involved, ibid. (quoting Becker, 23
F.3d at 1541).
    Applying that test, the majority held that a
sufficient level of exigency had not been shown here:

The 45 officers did not fear any of the actual
residents of the house and were not attacking a
gang or cult hangout where they might be met by
a fusillade of gunfire. They were concerned about
one person, Shelby, who might be on the premises.
But Shelby was not known to have ever shot or
shot at anyone. He was an escape artist, who said
he would not go to federal-prison. He had knocked
people down in his escape attempts, and he had
stolen a car and run into a  police vehicle. His
violence towards law enforcement had not ex-
tended beyond that, even though he had obviously
been arrested on some occasions.  Perhaps his
degree of dangerousness bespoke a mild exigency.
Certainly it did not bespeak more.

App., infra, 9a. Because it found that the government
had failed to adduce "specific evidence that Shelby
was armed, that he would use firearms against the

---------------------------------------- Page Break ----------------------------------------

8

officers, or that when he was faced with [a] show of
force he would do anything violent at all," id. at 11a-
12a, the court concluded that respondent's "statutory
and Fourth Amendment rights were violated when
government agents broke into his home in the early
morning hours without complying with the knock-
and-announce requirements," id. at 17a. 1
Judge Kozinski dissented. App., infra, 18a-27a. He
argued that "[t]he record contradicts the majority's
romantic description of Shelby," who was, in Judge
Kozinski's view, "a hardened and desperate criminal."
Id. at 18a. Judge Kozinski emphasized that the
officers knew that Shelby had "a history of violent
escapes," had "[a]ssault[ed] helpless civilians" and
law enforcement officers in effecting those escapes,
and had engaged in "brutal[] tortur[e]." Id. at 19a-20a.
The dissent further observed that officers had spe-
cific information about Shelby's access to firearms.
Id. at 20a. Based on those facts, the dissent argued
that the officers had "properly balanced the home-
owner's privacy and property interests against the
dictates of security." Id. at 23a-24a (citing Wilson v.
Arkansas, 115 S. Ct. 1914, 1918 (1995)). 2

___________________(footnotes)

    1 The majority further concluded that the "seizure of the
guns * * * came as  the most direct, if not the only, result of
the" police "break-in," and that "suppression would serve to
dissuade the police from this kind of unnecessary invasion of
people's homes." App., infra, 13a.

    2 Judge Kozinski also dissented on the ground that, "[e]ven
had the no-knock search been illegal, this would provide no
grounds for suppression of the evidence pertaining to
[respondent]." App., infra, 24a.

---------------------------------------- Page Break ----------------------------------------

9

 REASONS FOR GRANTING THE PETITION

    The court of appeals did not doubt that the officers
who executed the search warrant in this case rea-
sonably believed that providing advance notice of their
presence and purpose would have increased the risk of    
danger they faced in seeking to apprehend an escaped
fugitive who had a history of violent acts. In con- 
cluding that the immediate entry to execute the war-
rant was illegal, however, the court of appeals em-
ployed a two-tiered analysis focusing on property
damage. Under the court's test, when officers break
property to effect a no-knock entry, that action
significantly elevates the showing of potential harm
required to justify the entry.  Applying that test    
here, even the minor damage to property involved in
this case (breaking a garage window) imposed on the
officers the need to have "[m]ore specific inferences
of exigency" (App., infra, 8a) than the. evidence that
the officers had that a person sought within the
house was an escaped fugitive with a prior history of
violence.
    The Ninth Circuit's two-tiered approach to no-
knock entries is incorrect, because it erroneously
makes property damage the determinant of how spe-
cifically officers must be able to infer a risk of danger
before they may make a no-knock entry. The ques-
tion whether officers may make an unannounced, no-
knock entry should turn instead on whether the
officers reasonably believe that giving prior notice of
their presence and purpose, and providing a grace  
period for occupants to open the door, would expose     
the officers to a risk of danger, would facilitate a
fugitive's escape, or would likely prompt the destruc-
tion of evidence.  The Ninth Circuit's bifurcated

---------------------------------------- Page Break ----------------------------------------

10

approach is also unique. In no other circuit would the
government face an increased burden to justify a no-
knock entry simply because property damage oc-
curred in the course of the entry. Because the Ninth
Circuit's approach is wrong, conflicts with the ap-
proach employed in other circuits, and threatens to
jeopardize the safety of law enforcement officers in
the dangerous task of executing warrants, review by
this Court is warranted.
    1. a. In Wilson v. Arkansas, 115 S. Ct. 1914 (1995),
this Court held that the common-law knock-and-
announce principle is "an element of the reasonable-
ness inquiry under the Fourth Amendment," such
that "in some circumstances an officer's unannounced
entry into a home might be unreasonable under the
Fourth Amendment." Id at 1918. One of the inter-
ests that underlie the knock-and-announce principle
is the avoidance of damage to property. See id. at
1918-1919; United States v. Kemp, 12 F.3d 1140, 1142
(D.C. Cir. 1994); 2 Wayne R. LaFave, Search and
Seizure  4.8(a), at 599 (3d ed. 1996). But the more
fundamental interest protected by the announcement
principle is the avoidance of unnecessary surprise to
the occupants of a dwelling that is about to undergo
a warrant-authorized search. As the Court held in
Sabbath v. United States, 391 U.S. 585 (1968), the use
of "force" in effecting an unannounced entry is not
necessary to trigger the federal knock-and-announce
provision, 18 U.S.C. 3109. Although Section 3109 uses
the phrase "beak open," the Court explained that
"[a]n unannounced intrusion into a dwelling-what
 3109 basically proscribes-is no less an unan-
nounced intrusion whether officers break down a
door, force, open a chain lock on a partially open door,
open a locked door by use of a passkey, or * * * open

---------------------------------------- Page Break ----------------------------------------

11

a closed but unlocked door." 391 U.S. at 590; see also
ibid. ("The protection afforded by, and the values
inherent in,  3109 must be governed by something
more than the fortuitous circumstance of an unlocked
door.") (internal quotation marks omitted)?
    While recognizing the knock-and-announce princi-  
ple, the Court in Wilson also emphasized that the
Fourth Amendment's "flexible requirement of rea-
sonableness should not be read to mandate a rigid rule
of announcement that ignores countervailing law
enforcement interests." 115 S. Ct. at 1918. Without
delineating "a comprehensive catalog" of the factors
that could overcome the "presumption in favor of
announcement," id. at 1918-1919, the Court noted, by
way of example, that an unannounced entry may be
justified "under circumstances presenting a threat of
physical violence," ibid., "where police officers have
reason to believe that evidence would likely be de-
stroyed if advance notice were given," id. at 1919, and
"where the prisoner escapes * * * and retreats to his
dwelling." Ibid (citing Read v. Case, 4 Conn. 166, 170
(1822) (plantiff who "had resolved * * * to resist
even to the shedding of blood * * * was not within
the reason and spirit of the rule requiring notice'')).
     b. The court of appeals in this case applied its long-
standing rule that, when officers enter to execute
a warrant without a prior announcement, the speci-
ficity of their knowledge of. the potential dangers

___________________(footnotes)
                                      
    3 Although Sabbath involved Section 3109, both that provi-
sion and the Fourth Amendment incorporate the common-law
announcement principle-and the acknowledged grounds for
dispensing with a prior announcement. See Wilson, 115 S. Ct.
at 1918 n.3 (noting that in Sabbath, 391 U.S. at 591 n.8, the
Court suggested that both the." `common law' rule of announce-
ment and entry and its `exceptions' were codified in  3109").

---------------------------------------- Page Break ----------------------------------------

12

resulting from a prior announcement must be greater
if the unannounced entry entails even minor "physi-
cal disruption of property." App., infra, 8a (quoting
United States v. Becker, 23 F.3d 1537, 1540 (9th Cir.
1994)). See also United States v. McConney, 728 F.2d
1195, 1206 (9th Cir.) (en banc), cert. denied, 469 U.S.
824 (1984). Under that approach, where property dam-
age occurs during a no-knock entry to execute a
warrant, officers must demonstrate "[m]ore specific
inferences of exigency" (App., infra, 8a) than the
serious risk of harm to officers and others that ex-
isted in this case.
    The Ninth Circuit's approach is incorrect. As the
Court recognized in Wilson, an unannounced, no-
knock entry may be justified by the valid law enforce-
ment interests that exist when officers  reasonably
believe that advance notice might increase the risk of
harm to officers or frustrate the purpose of the
search, 115 S. Ct. at 1918-1919. The need to damage
property in making an unannounced entry has no
bearing on whether those law enforcement interests
are present. When the requisite peril to officers
exists, or there `are other risks that make it reason-
able for officers to employ the element of surprise, it
should not matter whether the fortuity of an unlocked
door or open window enables officers to execute an
unannounced entry without breaking property, or, as
is more common, the physical characteristics of the
doors and windows make it necessary for officers to
break property to enter. Cf. Dalia v. United States,
441 U.S. 238, 257 n.19 (1979) ("[O]ften it is impossible
to anticipate when [it] will be necessary" for officers
to engage in "forceful breaking and entering * * * to
effect a warranted search."). In either situation, the
justification for the immediate entry is the need for

---------------------------------------- Page Break ----------------------------------------

13

surprise; that need does not diminish simply because
minor property damage may be necessary.
    Indeed, the breaking of a window may be a means to
distract the occupants and thereby greatly increase
the officers' ability to gain quick control of the
situation. By drawing the occupants' attention to the
sound of breaking glass, officers may be able to divert
the occupants into less threatening positions and
thereby reduce the risk of violence. Cf. Michigan v.
Summers, 452 U.S. 692, 702-703 (1981) ("The risk of
harm to both the police and the occupants is mini-
mized if the officers routinely exercise unquestioned
command of the situation.").  Thus, the question
whether an unannounced entry is justified should
turn on whether law enforcement interests would be
jeopardized by giving advance warning, not on
whether property is damaged during the entry. And
where "knowledge that a person is dangerous" (App.,
infra, 8a) would justify unannounced entry through
an open door or window, no greater or more specific
showing should be required merely because a locked
door or window makes a degree of property damage
necessary to safe execution of the warrant,
    That is not to say that destruction of property has
no place in analyzing the reasonableness of the entry.
Excessive or wholly unnecessary destruction of prop-
erty by law enforcement officers in the execution of a
warrant may violate the Fourth Amendment's reason-
ableness standard, whether or not officers knock and
announce before entry.  See 2 LaFave, Search and
Seizure  4.10(d), at 673-674 (describing "the long-
standing requirement[] that the officers * * * avoid
unnecessary damage to the premises") (emphasis
added); Kemp, 12 F.3d at 1142 (interests advanced by
statutory knock-and-announce requirement include

---------------------------------------- Page Break ----------------------------------------

14

"preventing needless destruction of private prop-
erty") (emphasis added); Buckley v. Beaulieu, 104 Me.
56, 61 (1908) (where officers unnecessarily destroyed
walls of suspect's home, "the manner and extent of
the search in this case were unreasonable and in
excess of the officers' authority"); cf. Maryland v.
Garrison, 480 U.S. 79, 84 (1987) (examining "rea-
sonableness of the manner `in which [a search war-
rant] was executed"). Thus, even when an unan-
nounced entry is justified to protect the officers'
safety or to foil an escape, the no-knock entry must
still be carried out in a reasonable manner, involving
a proportionate amount of force. Just as officers may
not use excessive force in making an otherwise valid
probable-cause arrest, see Graham v. Connor, 490
U.S. 386, 396-397 (1989), they may not destroy prop-
erty unnecessarily in making an otherwise-valid un-
announced entry.
    In contrast to that approach, the test employed by
the court of appeals makes property damage relevant
to whether an unannounced entry is justified at all.
Under the Ninth Circuit's two-tiered inquiry, the
breaking of any property automatically increases the
burden on the officers to possess "more specific infer-
ences" of danger or other harms that warrant an un-
announced entry. The court of appeals has suggested
that such inferences would include proof that "evi-
dence was being destroyed," United States v. Whit-
ney, 633 F.2d 902, 910 (1980), cert. denied, 450 U.S.
1004 (1981), or "specific information that [a dwelling's
resident] was armed or dangerous," Becker, 23 F.3d at
1541. Because such specific inferences are ordinarily
unavailable to officers, the court of appeals' rule
would require officers to forgo unannounced entries
to execute search warrants, even where the available

---------------------------------------- Page Break ----------------------------------------

15

facts strongly support the use of surprise to reduce
risks to officers or secure the objects of the search!
    The degree of certainty expected by the court of
appeals not only is unrealistic, but is inconsistent
with the degree of deference that this Court affords
police officers' contemporaneous assessment of the
risk of violence they face. The Court has frequently
noted the "weighty interest in officer safety," Mary-
land v. Wilson, No. 95-1268 (Feb. 19, 1997), slip op. 4,
and, in recognition of that interest, has never re-
quired absolute assurance that a particular situation
would threaten officers' safety in order to justify a
measured intrusion on Fourth Amendment interests.
See, e.g., Maryland v. Buie, 494 U.S. 325, 336 (1990)
("protective sweep" of house justifiable based on "rea-
sonable suspicion of danger"); Michigan v. Long, 463
U.S. 1032, 1049 (1983) ("protection of police and others
can justify protective searches when police have a
reasonable belief that the suspect poses a danger");
Michigan v. Summers, 452 U.S. at 702-703 ("interest
in minimizing the risk of harm to the officers"
justifies detaining occupant of premises while search
is conducted); Pennsylvania v. Mimms, 434 U.S. 106,
110 (1977) (per curiam) (relying on "inordinate risk   
confronting an officer" to justify requirement that

___________________(footnotes)

4 The burdens placed on law enforcement officers by the
"specific inferences" test are well demonstrated by this case.
Here, although the escaped-fugitive Shelby had previously
struck a corrections officer in the face to effect an escape, had
stolen a car and rammed it into a law enforcement vehicle, had
threatened to kill witnesses, had tortured another person with
a hammer, had vowed not to serve federal time, and had access
to weapons, the court of appeals surmised that "[p]erhaps"
Shelby's "degree of dangerousness bespoke a mild exigency.
Certainly it did not bespeak more." App., infra, 9a.

---------------------------------------- Page Break ----------------------------------------

16

driver exit car in a traffic stop); Chimel v. Cali-
fornia, 395 U.S. 752763 (1969) (search incident to
arrest justified on ground that, without search,
"officer's safety might well be endangered"). The
"specific inferences" -required by the court of appeals
would expose officers to heightened risks in the
particularly dangerous setting of warrant execution,
contrary to the consistent view of this Court that
"[certainly it would be unreasonable to require that
police officers take unnecessary risks in the per-
formance of their duties." Terry V. Ohio, 392 U.S. 1,
23 (1968).
    c. Under a proper analysis, the entry in this case
complied with the Fourth Amendment and Section
3109. The warrant to search respondent's property
was based on probable cause to believe that Shelby
was hiding there. App., infra, 30a-31a. 5 In addition,
the officers executing the warrant had reliable infor-
mation that (1) Shelby had been convicted of a number
of felonies, including using or carrying a firearm
during and in relation to a drug trafficking offense;
(2) Shelby "had a history of violent escapes," and had
stated that he would not "do federal time"; (3) Shelby
had attacked officers and innocent bystanders in past
escape attempts; (4) Shelby "ha[d] made threats to kill
witnesses and police officers associated with his
incarceration"; (5) Shelby "has had access to large
caches of weapons"; (6) respondent Ramirez "was
possibly involved in drugs, which he kept in the
garage"; and (7) "there were supposed to be several
guns in [respondent's] garage." Id. at 32a-33a, 38a-

___________________(footnotes)

5 The court of appeals expressed some doubt about that
proposition, but it decided this case on the assumption that
probable cause was established. App., infra, 12a n.1.

---------------------------------------- Page Break ----------------------------------------

17

39a, 43a-44a. Based on that knowledge, the officers
had ample reason to conclude that a risk of violence
would arise if they announced their presence be-
fore entry, and that making an unannounced entry
would significantly reduce that risk.  The officers
were therefore. justified in making a no-knock entry,
whether or not the manner of entry required some
damage to property!
 
    Not only was the unannounced entry justified, but
the damage to respondent's property was neither
gratuitous nor excessive. Rather, the minimal step of
breaking the window to respondent's garage simul-
taneously with announcement and entry was a rea-
sonable way both to obtain entry and to draw the
occupants to a position away from the doors, and
thereby facilitate the officers' ability to control the
search scene. Accordingly, the manner of entry in
this case was lawful. 7

___________________(footnotes)

     6 The fact that the officers did not find Shelby does not
undercut the reasonableness of their actions at the time.  "It
goes without saying that in determining the lawfulness of entry
* * * we may concern ourselves only with what the officers
had reason to believe at the time of their entry." Ker v.
California, 374 U.S. 23, 40 n.12 `(1963) (plurality opinion); cf.
Illinois v. Rodriguez, 497 U.S. 177,186 (1990).
     7 Even if the Court were to disagree with the above analy-
sis, which considers, first, whether law enforcement interests
justified dispensing with an announcement before entry and,
second, whether any breakage of property during the entry
was excessive under the circumstances, the Court should still
reject the Ninth Circuit's two-tiered approach. At most, prop-
erty damage should be one factor in considering the overall
reasonableness of an unannounced entry. It should not func-
tion as a switch that greatly elevates the justifications needed
to dispense with a prior announcement. Cf. Illinois v. Gates,
462 U.S. 213, 238 (1983). Under such an analysis, the minor

---------------------------------------- Page Break ----------------------------------------

18

    2. No other court of appeals employs the Ninth
Circuit's two-tiered approach or requires a height-
ened showing  of justification  for unannounced
searches that involve damage to property. Rather,
other courts of appeals have inquired whether an
immediate entry was justified by the circumstances,
without adverting to officers' need to cause property
damage.  In applying that analysis, other courts
of appeals have upheld forcible, unannounced entries
based on equal or lesser showings of justification
than existed here. 8

___________________(footnotes)  
                                             
amount of property damage in this case would not be a basis for
finding the unannounced entry to be unlawful.
    8 Most federal courts of appeals have stated that "exigent
circumstances" may justify dispensing with a prior announce-
ment under either the Fourth Amendment or Section 3109.
The reference to "exigent circumstances: however, can cause
confusion. "Exigent circumstances" is the phrase used to de-
scribe the justification needed to dispense with a warrant alto-
gether before entering a dwelling. See Payton v. New York,
445 U.S. 573,585-586 (1980); Vale v. Louisiana, 399 U.S. 30, 34-
35 (1970). In the context of an unannounced entry, by contrast,
the officers have ordinarily obtained a warrant. Thus, a magis-
trate has already authorized the intrusion into the residence,
and, as Wilson makes clear, the question is only whether it
would be "reasonable" within the meaning of the Fourth
Amendment to enter without a knock and prior announcement.
See Ybarra v. Illinois, 444 U.S. 85, 104 (1979) (Rehnquist, J.,
dissenting) ("[I]n judging the reasonableness of [a] search pur-
suant to [a] warrant, we need not measure it against jealously
drawn exceptions to that requirement."). It stands to reason
that an unannounced entry pursuant to a warrant may be
"reasonable" under circumstances that would not justify a
wholly warrentless entry into a dwelling. Indeed, in Wilson,
this Court did not use. the term "exigent circumstances" and
stressed instead that an unannounced entry need only meet
a "flexible" reasonableness standard that weighs the relevant

---------------------------------------- Page Break ----------------------------------------

19

    In United States v. Lalor, 996 F.2d 1578 (4th Cir.),
cert. denied, 510 U.S. 983 (1993), for example, officers
broke down the defendant's door with a battering ram
while announcing their presence. Id. at 1580. The
court upheld the search, despite its conclusion that
"the evidence of the safety risk to the officers is not
compelling." Id. at 1584. The particular evidence sup-
porting that risk was that a weapon had been found on
the defendant during an earlier arrest; that the defen-
dant had earlier "[been] belligerent and made deroga-
tory remarks about the police"; and "the general
proposition that drugs and guns go together." Ibid.
The court nowhere suggested that the damage to the
defendant's property warranted "[m]ore specific infer-
ences of exigency." App., infra, 8a (quoting Becker,
23 F.3d at 1541).
    In United States v. Kennedy, 32 F.3d 876 (4th Cir.
1994), cert. denied, 115 S. Ct. 939 (1995), the court held
that information available to officers executing a war-
rant-i.e., that the defendant had a criminal record,
was participating in a drug conspiracy, and probably
had guns in his home, id. at 882-883-"amply justi-
fied" their failure to await a response before breaking
down the defendant's door. Id. at 883. Again, there
was no indication that damage to the defendant's prop-
erty triggered a more stringent requirement of jus-
tification. Other cases are to the same effect. See
United States v. Dahlman, 13 F.3d 1391,1394 n.3, 1398
(10th Cir. 1993) (upholding no-knock search in which
officers broke the window of a cabin and detonated an

___________________(footnotes)
                                               
"law enforcement interests." 115 S. Ct. at 1918. See Bodine v.
Warwick, 72 F.3d 393, 398 (3d Cir. 1995) (Wilson adopts an
overall standard of reasonableness that considers exigency as a
single factor).

---------------------------------------- Page Break ----------------------------------------

20

explosive device to distract its inhabitants; failure to
announce justified by defendant's statement that he
intended to "shoot it out" with police rather than be
arrested, defendant's attempt to disarm an officer dur-
ing a prior arrest, officers' high-visibility approach,
and barking guard dog), cert. denied, 511 U.S. 1045
(1994); 9 United States v. Stowe, 100 F.3d 494,499 (7th
Cir. 1996) (upholding no-knock search in which of-
ficers broke down defendant's door with steel batter-
ing ram, where police had knowledge that informant
had seen defendant in house the night before with
drugs and two loaded handguns, defendant had crimi-
nal record and alias, and residence had steel doors},
petition for cert. pending, No. 96-7439 (filed Jan. 14,
1997); see also United States v. Spinelli, 848 F.2d 26,
29-30 (2d Cir. 1988). 10 

___________________(footnotes)

    9 In United States v, Stewart, 867 F.2d 581 (10th Cir. 1989),
the court of appeals stated that an "especially clear" showing
was necessary to uphold an unannounced entry, in light of sev-
eral factors, including the fact that "destruction of physi-
cal property took place." Id. at 584. More recently, however,
the Tenth Circuit rejected the contention that its decision in
Stewart requires a "specific showing" that "the defendant
presents a danger to law enforcement officers in the context
of resisting arrest with violence." United States v. Maden, 64
F.3d 1505, 1509 n.2 (1995).
    10 In determining whether exigent circumstances justify
dispensing with a warrant altogether, the Second Circuit uses a
multi-factor test that includes as one factor "the peaceful cir-
cumstances of the entry." See, e.g., United States v. Gordils,
982 F.2d 64, 69 (1992), cert. denied, 507 U.S. 1054 [1993).
Recently, the Second Circuit applied that test in determining
whether officers had adequate grounds for making an unan-
nounced entry pursuant to a warrant. See United States V.
Brown, 52 F.3d 415, 421 (1995), cert. denied, 116 S. Ct. 764
(1996). In upholding the entry in that case, however, the court
did not discuss the means of making the entry.

---------------------------------------- Page Break ----------------------------------------

21

    Thus, no other court of appeals focuses on property
damage as the pivotal factor that elevates the specific-
ity of proof required to justify an unannounced entry.
And under the general approach employed in other
circuits,  the degree of danger that the officers
reasonably believed that they faced in this case would
have justified their decision to execute the search
warrant for the escaped fugitive without giving prior
notice to the occupants of respondent's house.
    3. The court of appeals' approach is disruptive to
law enforcement in the Ninth Circuit and increases
the risk of harm faced by officers executing warrants.
Executing search warrants is often highly danger-
ous. To minimize those dangers, officers sometimes
break a window to distract the occupants' attention
and draw them to a visible position. In other cases,
officers employ force to open a door quickly in order
to prevent the occupants from retrieving weapons. If
officers must show a near certainty of physical vio-
lence in order to justify that type of damage to a door
or window upon entry, they will often be forced to
forgo minimally intrusive tactics where those tactics
would be effective in avoiding violent confrontation.
Because the Ninth Circuit's incorrect focus on prop-
erty damage in evaluating no-knock entries conflicts
with the approach employed by other circuits and has
dangerous consequences for law enforcement, this
Court's review is warranted. 11

___________________(footnotes)
                                    
    11 This Court has granted certiorari in Richards V. Wis-
consin, No. 96-5955 (to be argued Mar. 24, 1997), which pre-
sents the question whether it is always reasonable for officers
executing a narcotics-trafficking search warrant to make an
immediate, no-knock entry.  This case presents a distinct
knock-and-announce issue, as the warrant in this case was to
search for a fugitive (rather than drugs) and the Ninth

---------------------------------------- Page Break ----------------------------------------

22

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney  General

MICHAEL R. DREEBEN
Deputy Solicitor General

ALAN JENKINS
Assistant to the Solicitor
General

J.  DOUGLAS WILSON
Attorney

___________________(footnotes)
                   
Circuit's rule turns on a consideration-damage to property-
that is not at issue in Richards.

---------------------------------------- Page Break ----------------------------------------

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE-NINTH CIRCUIT

No. 95-30158.
D.C. No. CR-94-00379-1-ALH

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

HERNAN RAMIREZ, DEFENDANT-APPELLEE

Appeal from the United States District Court
    for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding

[Filed: Aug. 2, 1996]

OPINION

Before: STEPHEN REINHARDT, ALEX KOZINSKI, and
FERDINAND F. FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Dissent by Judge
KOZINSKI

FERNANDEZ, Circuit Judge:
    Hernan Ramirez was indicted for being a felon in  
possession of firearms. 18 U.S.C.  922(g)(1). The
district court determined that the firearms had been
discovered in connection with a violation of Ramirez's

(la)

---------------------------------------- Page Break ----------------------------------------

2a

rights under the knock-and-announce law. 18 U.S.C.
3109. It, therefore, suppressed the evidence of the
weapons, and the United States appealed. We affirm.

BACKGROUND

    On November 5, 1994, Ramirez and his wife awoke
out, of their peaceful slumbers to a series of unusual
sounds, including the breaking of a window. Their
child, too, awoke and started crying. They feared that
they were being attacked by burglars. They were not,
but by the end of the day Ramirez found himself in the
custody of federal agents and charged with a crime-
felon in possession of a firearm-which could lead to
a lengthy period of incarceration. How he found him-
self in that predicament takes some telling.

    Just three days before, Alan Lawrence Shelby had
knocked a deputy sheriff down and escaped from
custody. He was then facing a term of federal im-
prisonment of 248 months and had declared that he
would not do federal time. He had tried to escape
before. One time he had struck an officer, kicked out
a jail door, stolen an automobile, and rammed a police
vehicle as he attempted to get away. Another time he
had attempted to escape by using a rope made from
torn bedsheets. At some time in the past he had also
threatened to kill witnesses, and, it was said, he had
tortured someone with a hammer.
    
    The authorities were understandably anxious to
get Shelby back, so they sent out a press release. Al-
most immediately, on November 3, 1994, a reliable
confidential informant contacted Bureau of Alcohol,
Tobacco and Firearms Special Agent George H. Kim
and told him that he had seen a person he believed to
be Shelby at Ramirez's home the day before. Agent

---------------------------------------- Page Break ----------------------------------------

3a

Kim and the informant then drove out to the area, and
from some distance away they saw a person who was
"very similar to" a photo of Shelby and noted that the
man was wearing a blue jumpsuit and was clean-cut.
That was the person the confidential informant had
seen there the day before. Thereupon, a deputy mar-
shal also went out, and from 1,000 yards away he saw a
clean-cut man wearing blue sweats come out of the
house. The marshal decided that the man was the
person whom Agent Kim had seen.

    In the afternoon of the next day, a warrant to arrest
Shelby at Ramirez's home was obtained, and that led
to the early morning raid on November 5, which
brought Ramirez, but not Shelby, into the clutches of
the law.
    
    Ramirez's fateful day unfolded in this way. In the
predawn hours of November 5, Ramirez, his wife, and
their three-year-old child were asleep in their abode.
The main house had three bedrooms, a livingroom, an
activity room, and a kitchen which led into a small
utility room, which, in turn, led into an attached gar-
age. The informant, who said that Shelby was at
the house, also "indicated there were supposed to be
several guns in the garage." Apparently there were
not, and apparently the informant had never seen
them there. Nevertheless, that is what he had said.
    
    At 6:15 a.m., 45 armed officers converged on the pro-
perty. The group included S.W.A.T. teams of state,
county, and city officers. The officers set up "a port-
able loud speaker system and began announcing that
they had a search warrant, but without waiting for a
response they broke the window of the garage and
began waving a gun through that window, a maneuver

---------------------------------------- Page Break ----------------------------------------

4a

that was not too efficacious because a curtain got in
the way.

    The Ramirezes had no idea that police were outside
their home, but they did hear the disturbance, did
hear the breaking of glass, and thought that they
were being burglarized. They feared for their safety
and for the safety of their three-year-old child. Thus,
in order to frighten the intruder off, Mr. Ramirez
obtained a pistol from a utility closet and fired it to-
ward the ceiling of the garage. The officers fired back
and shouted "Police." At that point, and only at that
point, the occupants of the house realized that it was
law enforcement officers who had broken into the
home. Ramirez "ran to the livingroom, threw away
the firearm across the floor, and threw himself on the
floor in a prone position, shaking from fright." By
635 a.m., he and his wife, with their child in her arms,
had walked out of the, house and into police custody.
These householders were the only persons captured
in the raid. Shelby was nowhere to be found, although
Ramirez acknowledged that a photo of Shelby looked
like a person who might have been there on November
3.

    Based on what occurred at the house that morning,
a second warrant was obtained, the gun which
Ramirez had fired and another one were seized, and
Ramirez found himself in the toils of the law.

JURISDICTION AND STANDARD OF REVIEW

    The trial court had jurisdiction over this matter
pursuant to 18 U.S.C. 3231. We have jurisdiction
pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3731.

---------------------------------------- Page Break ----------------------------------------

5a

    In general, we review determinations of motions to
suppress de novo. United States v. Khan, 993 F.2d
1368, 1375 (9th Cir. 1993). The trial court's factual
findings are reviewed for clear error. United
States v. Negrete-Gonzales, 966 F.2d 1277, 1282
(9th Cir. 1992). Where no findings of fact were
made or requested, this court will uphold a trial
court's denial of a motion to suppress if there_ was
a reasonable view to support it. United States v.
Rabe, 848 F.2d 994, 997 (9th Cir. 1988). The mixed
fact and law question of exigent circumstances
justifying a failure to comply with the statutory
knock and announce provisions of 18 U.S.C. 3109
is reviewed de novo. United States v. McConney,
728 F.2d 1195, 1205 (9th Cir.) (en banc), cert.
denied, 469 U.S. 824, 105 S. Ct. 101,83 L. Ed. 2d 46
(1984).

United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.
1994).

DISCUSSION

    A. Knock and Announce. We have previously had
occasion to expatiate on the important role that the
Fourth Amendment plays in the protection of our
homes-the centers of our family life and our refuge
from the rude world. We must now cover that ground
again.
    
    As we said in Los Angeles Police Protective League
v. Gates, 907 F.2d 879, 884 (9th Cir. 1990):

    Nowhere is the protective force of the fourth
amendment more powerful than it is when the
sanctity of the home is involved. Boyd v. United
States, 116 U.S. 616,630,6 S. Ct. 524,532,29 L. Ed.

---------------------------------------- Page Break ----------------------------------------

6a

746 (1886); United States v. Shaibu, 895 F.2d 1291,
1293 (9th Cir. 1990) [, amended and superseded
by, 920 F.2d 1423 (9th Cir. 1990)]; United States v.
Winsor, 846 F.2d 1569, 1574 (9th Cir. 1988) (en
banc). The sanctity of a person's home, perhaps
our last real retreat in this technological age, lies
at the very core of the rights which animate the
amendment. Therefore, we have been adamant in
our demand that absent exigent circumstances a
warrant will be required before a person's home is
invaded by the authorities. See Shaibu, at 1293;
United States v. George, 883 F.2d 1407, 1411 (9th
Cir. 1989).

    The amendment's force, however, extends even
beyond the obtaining of a warrant. Even if a warrant
issues, the concerns which lie at the heart of the
amendment continue to evoke our solicitude. Our
"concern for the privacy, the safety, and the property
of our citizens continues. . . ." Becker, 23 F.3d at 1540.
That concern is reflected in knock-and-announce re-
quirements. As the Supreme Court recently said,
"[i]n evaluating the scope of [our Fourth Amendment]
right, we have looked to the traditional protections
against unreasonable searches and seizures afforded
by the common law at the time of the framing."
Wilson v. Arkansas, - U.S. -, -, 115 S. Ct.
1914, 1916, 131 L. Ed. 2d 976 (1995). Among those
traditions was  "[t]he common law knock-and-
announce principle [which] was woven quick] y into
the fabric of early American law." Id. at -, 115 S.
Ct. at 1917. The Court, therefore, concluded that as a
matter of constitutional law "the method of an
officer's entry into a dwelling was among the factors
to be considered in assessing the reasonableness of a

---------------------------------------- Page Break ----------------------------------------

7a

search or seizure." Id. at -, 115 S. Ct. at 191.8. For
our purposes, the tradition finds an even more direct
expression of societal concern. "It finds expression
in the knock and announce statute which allows an
officer to `break open any outer or inner door of a
house . . . to execute a search warrant if, after notice
of his authority and purpose,' he is refused admit-
tance. 18 U.S.C. 3109." Becker, 23 F.3d at 1540. We
insist upon this notice because, as individuals, we fear
for our privacy in the face of government might, and
we fear for our property and our safety as well.

"The fear of a smashing in of doors by government
agents is based upon much more than a concern
that our privacy will be disturbed. It is based upon
concern for our safety and the safety of our
families. Indeed, the minions of dictators do not
kick in doors for the mere purpose of satisfying
some voyeuristic desire to peer around and then go
about their business.  Something much more
malevolent and dangerous is afoot when they take
those actions. It is that which strikes terror into
the hearts of their victims. The fourth amendment
protects us from that fear as much as it protects
our privacy. . . ."

Id. at 1540 (citation omitted). See also Soldal v. Cook
County, 506 U.S. 56, 62-63, 113 S. Ct. 538, 544, 121. L.
Ed. 2d 450 (1992). As concerned citizens we also fear
the needless injuries that might be inflicted upon
police officers, or upon a homeowner, as a result of
the homeowner's mistaken belief that miscreants are
invading his little. castle.  See Sabbath v. United  
States, 391 U.S. 585, 589, 88 S. Ct. 1755, 1758, 20 L. Ed.
2d 828 (1968) (one facet of rule is to safeguard officers

---------------------------------------- Page Break ----------------------------------------

8a

from injuries inflicted by mistaken homeowners). So
it was here. Had Ramirez been less reasonable, the
officer at the window might have been killed; had
Ramirez been less wise, he or his family might have
been killed. As it was, his property was needlessly
damaged when his home was broken into.

    When the officers executed the warrant they brush-
ed aside the wisdom of history and elicited a response
which, if not strictly intended, should have been
reasonably foreseen. They seek to excuse their
conduct on the grounds that the dangerousness of
Shelby resulted in an exigency which permitted them
to break into the home of Ramirez without following
knock-and-announce requirements.

    No doubt exigent circumstances can justify
breaking into a house without notice, but "incantation
of that phrase does not dissolve the shield that our
law provides."  Becker, 23 F.3d at 1540. When
exigency is claimed, we must determine what kind of
exigency it was. "We have held that even a mild
exigency, like knowledge that a person is dangerous,
can justify immediate entry where that can be done
without any physical disruption of property. That, of
course, is not this case.')  Id. (citations omitted).
Here, an officer broke into the home through a
window, poked a gun through the window, and was
ready to fire the weapon if he deemed it necessary to
do so. It takes more than a mild exigency to justify
that.  "To justify physical destruction of property
`[m]ore specific inferences of exigency are neces-
sary.'"  Id. at 1541 (citation omitted). Was there
more? We think not.

---------------------------------------- Page Break ----------------------------------------

9a

    Consider. The 45 officers did not fear any of the
actual residents of the house and were not attacking a
gang or cult hangout where they might be met by a
fusillade of gunfire. They were concerned about one
person, Shelby, who might be on the premises. But
Shelby was not known to have ever shot or shot at
anyone. He was an escape artist, who said he would
not go to federal prison. He had knocked people down
in his escape attempts, and he had stolen a car and run
into a police vehicle.  His violence towards law en-
forcement had not extended beyond that, even though
he had obviously been arrested on some occasions.
Perhaps his degree of dangerousness bespoke a mild
exigency. Certainly it did not bespeak more. In
United States v. McConney, 728 F.2d 1195 (9th Cir.)
(en bane) cert. denied, 469 U.S. 824,105 S. Ct. 101,83
L. Ed. 2d 46 (1984), for example, we found a mild exi-
gency when an officer knew that McConney was a
member of Hell's Angels, had a conviction for a vio-
lent crime, was a drug dealer, and had spoken of pro-
tecting club members. Id. at 1206. That justified an
announcement and a simultaneous entry through an
unlocked screen door. Id.

    On the other hand, in a case where a person in a
drug dealer's apartment was known to own a gun, but
there was no indication that he had the gun with him,
we found no exigent circumstances at all. See United
States v. Fluker, 543 F.2d 709, 717 (9th Cir. 1976). And
in United States v. Mendonsa, 989 F.2d 366, 370-71
(9th Cir. 1993), we found the circumstances insuffi-
cient to justify breaking into a house after the police
heard a little noise, even though an occupant was a
drug dealer who had a prior felony conviction for
armed robbery. We also found no exigency where all

---------------------------------------- Page Break ----------------------------------------

10a

the police had was a generalized concern about drug
dealers. See United States v. Moreno, 701 F.2d 815,
817-18 (9th Cir. 1983), vacated on other grounds, 469
U.S. 913,105 S. Ct. 286, 83 L. Ed. 2d 223 (1984). The
same sort of generated unspecific concerns proved
insufficient in Becker, 23 F.3d at 1541.
    
    We did find a mild exigency in United States v. Von
Willie, 59 F.3d 922 (9th Cir. 1995), where the police
sought to execute a search warrant at the home of an
armed warlord for a motorcycle gang. Id. at 924. In
that case, the police did attempt to comply with 3109
at one door, did comply with it at another door, but
seized Von Willie at still a third door without com-
pliance after he had seen them and was trying to shut
them out. Under the combination of what was known
before plus what happened on the scene, we validated
an entry which took place with no destruction of
property. Id. at 925-26. Similarly, in United States v.
Scott, 74 F.3d 175 (9th Cir. 1996), petition for cert.
filed, (June 6, 1996) (No. 95-9248), we found a mild
exigency. The police arrived on the scene to execute
a warrant. Scott opened the blinds and saw them; he
had a weapon in his hand. Id. at 176. He then
attempted to close an open door, as the police an-
nounced their presence and that they had a warrant.
They then forced their way into the room. Id. at 177.
We were satisfied that there was a mild exigency, and
we excused any failure to comply with the knock-and-
announce rule. See also United States v. Reed, 15
F.3d 928,934 (9th Cir. 1994) (likely armed suspect saw
the police and closed the door). None of those circum-
stances inform the case at hand. There is no sugges-
tion that the police presence was known, no confirma-
tion that Shelby was on the premises, and, more

---------------------------------------- Page Break ----------------------------------------

11a

importantly, no indication that Shelby was armed and
would resist with deadly force.

    We were considerably more impressed when the
police knew that the person they were after had a gun
and had heard him say that he kept the gun to use
against the police themselves.  United States v.
Turner, 926 F.2d 883,885 (9th Cir.), cert. denied, 502
U.S. 830, 112 S. Ct. 103, 116 L. Ed. 2d 73 (1991). We
were equally impressed in United States v. Perez , 67
F.3d 1371, 1384 (9th Cir. 1995), reh'g en banc granted,
77 F.3d 1210 (9th Cir. 1996), and for much the same
reasons. There the police on the scene realized that
Perez probably knew they were present. Moreover,
he was probably armed, had killed before, and had said
that if arrested "he intended to `go down shooting.'"
Id. In both cases we did find more than a mild exi-
gency. Of course, the police had no such information
about Shelby. They neither knew that he had a gun,
nor that he had access to one, nor that he would
consider using one against them.

    We have touched upon all of these cases because our
review is necessarily fact-bound. Our cases do not
describe a simple straight line, rather they graph a
much more complex curve. Police must have some
leeway in balancing the demands of the knock-and-
announce requirement against other safety con-
siderations.  Nevertheless, the courts must ulti-
mately determine whether the police struck that bal-
ance properly. We think it clear that the police did
not do so in this case.

    Again, the householders themselves presented no
known danger. If he was there, Shelby might wish to
escape, but the phalanx of already positioned officers
on hand made escape unlikely. Moreover, there was

---------------------------------------- Page Break ----------------------------------------

12a

no specific evidence that Shelby was armed, that he
would use firearms against the officers, or that when
he was faced with that show of force he would do
anything violent at all.  Also, before the break-in
nothing developed on the scene which would have
added to the circumstances already known and, thus,
raise them to a higher degree of exigency. In short,
we agree with the district court that the knock-and-
announce rules were violated in this case. 1
    
    B. Causation. When Ramirez walked out of his
house and into the arms of the waiting police, he was
seized. He then admitted that he had fired the gun,
that another gun was on the premises, and that he had
previously committed felonies in California. Those
admissions and the fact that an officer had seen the
discarded pistol in the livingroom led to a second
warrant and a seizure of the weapons. It is the use of
those weapons in evidence which Ramirez seeks to
suppress?

___________________(footnotes)

     1 The careful reader will note that we have assumed that
there was probable cause for the issuance of the warrant in the
first place. There may well be some doubt about that, when the
most that was known was that Shelby had been at Ramirez's
house on two occasions two or three days earlier. Nevertheless,
we give considerable deference to the issuing magistrate. See
Perez, 67 F.3d at 1382. Because of that deference and because
it is unnecessary to our resolution of this case, we have assumed
rather than decided that there was probable cause.

     2 We do not consider the statements themselves, which
clearly were not severable from the arrest of Ramirez, because
no issue regarding them is before us. But see United States V.
Ricardo D., 912 F.2d 337, 342 (9th Cir. 1990) (confession follow-
ing illegal arrest suppressed).

---------------------------------------- Page Break ----------------------------------------

13a

    Because the initial entry into Ramirez's house was
illegal, he is entitled to have the weapons suppressed
if "the police obtained the evidence `by exploitation of
the illegality.'" United States v. Jones, 608 F.2d 386,
390 (9th Cir. 1979) (quoting Wong Sun v. United
States, 371 U.S. 471, 488, 83 S. Ct.. 407, 417, 9 L. Ed. 2d
441 (1963)). It is clear that a mere "but for" causal
connection will not lead to suppression. Rather, we
must conduct an inquiry by applying three tests:

First, we consider the proximity of the illegal
arrest with the seizure of the evidence. Second,
we consider whether there were independent in-
tervening events that led the police to the
evidence. Third, we consider the effect of sup-
pression on the exclusionary rule's purpose of
deterring police misconduct. The three factors
are closely interrelated.

United States v. Shephard, 21 F.3d 933, 939 (9th Cir.
1994) (citation omitted); see also Jones, 608 F.2d at
391.

    The first of these factors is easily met; the seizure
of the guns could hardly be more approximately linked
to the police break-in itself. They came as the most
direct, if not the only, result of the morning's activi-
ties. Similarly, there can be little doubt that suppres-
sion would serve to dissuade the police from this_ kind
of unnecessary invasion of people's homes. It would
encourage, even exhort, them to use more caution.
Only a particularly cynical view of government would
induce us to think otherwise. The third factor weighs
in favor of suppression.

---------------------------------------- Page Break ----------------------------------------

14a

    That leaves the second factor-was there an inde-
pendent intervening event? We think not, but that
requires a bit more explanation. In the mine run of
cases, the determination is relatively straight-
forward. If an unlawful search follows directly on the
heels, of an unlawful arrest, suppression will likely
follow.  See, e.g., Shephard, 21 F.3d at 939-40; Cf.
Jones, 608 F.2d at 390-91. If an unlawful search ulti-
mately leads to the seizure of tangible materials,
they, too, will be suppressed if their connection is
close enough. See Murray v. United States, 487 U.S.
533, 536-38, 108 S. Ct. 2529, 2532-33, 101 L. Ed. 2d 472
(1988); United States v. Hillt 55 F.3d 479, 481 (9th Cir.
1995); United States v. Santa Maria, 15 F.3d 879, 883
(9th Cir. 1994). If a confession is closely tied to an
illegal arrest, suppression will often follow. See
Orhorhaghe v. INS, 38 F.3d 488, 504 (9th Cir. 1994);
Ricardo D., 912 F.2d at 343. The principles which
animate these cases would seem to lead directly to a
conclusion that suppression is required in this case.
However, the government claims that there was an
intervening event which broke the causal chain. That
event was Ramirez's firing of the pistol at the ceiling
when he thought that would help protect his family
against malevolent intruders. We disagree with the
government.

    There was no gap or attenuation between the break-
in and the firing of the weapon. More than that, the
police were very lacking in perspicacity if they failed
to foresee the reaction they encountered. What could
they have expected when they broke into the home of
a sleeping family in the early hours of the morning?
If they did not intend to elicit a strong protective
reaction, they must have willfully blinded themselves

---------------------------------------- Page Break ----------------------------------------

15a

to that possibility. Cf. United States v. Jewell, 532
F.2d 697, 700-04 (9th Cir.) (en banc), cert. denied, 426
U.S. 951, 96 S. Ct. 3173, 49 L. Ed. 2d 1188 (1976);
United States v. Aguilar, 80 F.3d 329, 332-33 (9th Cir.
1996) (en bane).

    The government, nevertheless, says that when a
new illegal act intervenes, the chain is broken be-
cause police illegality should not be taken to justify
citizen illegality. That general proposition is accu-
rate enough in the abstract, but the cases which
support it have no application here. No doubt a home-
owner is not justified in aiming a semiautomatic
weapon at persons he knows to be police officers, even
if they happen to have entered his home illegally. See
United States v. Waupekenay, 973 F.2d 1533, 1537-38
(10th Cir. 1992). Similarly, when an officer is engag-
ing in an illegal arrest, if the suspect engages in
illegal resistance, that new violation may well justify
a new and proper arrest.  See United States v.
Dawdy, 46 F.3d 1427, 1431 (8th Cir.), cert. denied, 423
U.S. 934 116 S. Ct. 195, 133 L. Ed. 2d 130 (1995). We
reached just that conclusion in United States v.
Garcia, 516 F.2d 318 (9th Cir.), cert. denied, 423 U.S.
934,96 S. Ct. 290,46 L. Ed. 2d 265 (1975). In that case
officers ordered Garcia to pull over at what we
assumed to be an illegal checkpoint. Garcia did  so at
first, but then sped off and led the officers on a high-
speed chase. Id. at 319. That illegal flight and the
ensuing chase supplied the necessary intervening
activity to justify Garcia's arrest. Id. at 320. We said
that unless the officers had acted for the very purpose
of initiating the chase activity, we would not find the
second stop to be illegal. Id. at 319-20; cf. United
States v. Ogilvie, 527 F.2d 330, 332 (9th Cir. 1975)

---------------------------------------- Page Break ----------------------------------------

16a

(explaining the limitations of Garcia); United States
v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976) (same).

    In the case at hand, Ramirez did not threaten or
flee from persons whom he knew to be police officers.
Quite the contrary. He fired a gun at the ceiling of
his own home when unknown intruders were invading
it. The government does not claim that he committed
a crime when he did that, unless, of course, the crime
was the fact that he had a gun at all. But to the
extent that it was a crime for him to have a gun, that
crime did not intervene. It existed before the police
engaged in their unlawful intrusion. That crime was
brought to light by the intrusion itself. We agree
with the Eleventh Circuit's determination that if the
act of a suspect is not a new and distinct crime, but is
simply a legal act which reveals the fact of some
crime-such as possession of an illegal substance- it
will not erase the taint. United States v. Bailey, 691
F.2d 1009, 1016-17 (llth Cir. 1982), cert. denied, 461
U.S. 933, 103 S. Ct. 2098,77 L. Ed. 2d 306 (1983). To
paraphrase that decision: Ramirez was in possession
of the gun before the police misconduct occurred, and
his response to the misconduct only revealed this
extant crime and did not itself constitute a crime-
i.e., firing a gun at the ceiling of his own home to
scare off intruders is not a crime; possessing the
weapon is. Id. at 1017.

    We, therefore, determine that there was no inter-
vening event, the second element of our analysis
favors suppression, and suppression must follow.

---------------------------------------- Page Break ----------------------------------------

17a

CONCLUSION

    The flame of our Fourth Amendment liberties is
bright and strong-that should come as no surprise.
It has been tended by lovers of liberty for over two
centuries.  While it burns, it keeps our homes free
from unlawful intrusions by the government. Still, it
is just a flame, and it will be quickly quenched if it is
not protected. Should that occur, a tenebrific atmos-
phere would envelop our liberties and our homes.
That must not happen.
    
    We hold that Ramirez's statutory and Fourth
Amendment rights were violated when government
agents broke into his home in the early morning
hours without complying with the knock-and-
announce requirements.  We also hold that the
district court correctly suppressed use of the seized
weapons as evidence against him.

AFFIRMED.

---------------------------------------- Page Break ----------------------------------------

18a

KOZINSKI, Circuit Judge, dissenting.

    1. The majority opens up a square conflict with
United States v. Turner, 926 F.2d 883 (9th Cir.), cert.
denied, 502 U.S. 830, 112 S. Ct. 103, 116 L. Ed. 2d 73
(1991), a case where we upheld a no-knock entry. In
Turner, police forced open a locked apartment door
and entered the defendant's bedroom; Turner argued
the no-knock entry was illegal because the police
couldn't be sure he was armed, but we upheld the
search. The majority contrasts Turner with Shelby,
characterizing the former as a "considerably more
impress[ive]" threat, maj. op. at 9466, and the latter as
an "escape artist" whose "degree of dangerousness
bespoke a mild exigency," if that. Id. at 9465.

    The record contradicts the majority's romantic
description of Shelby-a hardened and desperate
criminal, much more dangerous than Turner.  But
words are cheap; here are facts:
    
                            Turner                               Shelby

Current access     Highly likely                    Highly likely 
to guns                              

Past access          "Turner kept wea-             "Shelby was a
to guns                 pons in the apart-               major Metham-              
                             ment he used for                phetamine
                             his drug operations."         manufacturer                  
                                                                        and has had
                                                                        access to large 
                                                                        caches of wea- 
                                                                         pons."

---------------------------------------- Page Break ----------------------------------------

19a

Threatened police    Yes                                     Yes

Threatened police    No                                       Yes

Escape attempts        0                                          3   

Police and    
civilians assaulted     0                                          3 

People tortured          0                                         1

Criminal Record        1 conviction for                 Serving 20 
                                    recieving stolen                years plus, on
                                    property, 17 years            state and fed- 
                                                                             eral charges
                                                                             for dealing
                                                                             methampheta
                                                                             mines and
                                                                             using a gun in
                                                                             a drug trans-
                                                                             action

Knew police were     No                                       Yes
looking for him

    My colleagues trip lightly over the fact that Shelby
had "a history of violent escapes." ER at 22. But,
in his dogged efforts to flee from custody, Shelby not
only struck two law enforcement officers, but "as-
saulted a woman in a parking lot and stole her ve-
hicle," id.; he then crashed into a police car in making
his getaway. Assaulting helpless civilians and then
using a ton of mechanized steel as a battering ram
hardly comports with the majority's characterization
of Shelby as a latter-day Harry Houdini. The ma-

---------------------------------------- Page Break ----------------------------------------

20a

jority also dismisses reports of Shelby's torture ac-
tivities with "it was said," as if to suggest they lacked
substance. Maj. op. at 9459. But the record is positive
on this point:  "Alan Shelby has brutally tortured
others in the past with a hammer." ER at 22. The
majority's characterization of Shelby as "[p]erhaps
. . . mildly dangerous)" is more than mildly off the
mark.
The majority posits two main distinctions between
Shelby and Turner. First, it argues, Turner had
threatened to kill police while Shelby had not. Wrong.
Shelby had "made threats to kill witnesses and police
officers associated with his incarceration." ER at 22.
Next, the majority says, the police here didn't know
Shelby had access to weapons, while the police in
Turner did. Wrong again. In Turner, the police only
knew that the suspect was armed at another location.
Turner claimed the police had no way of knowing he
would carry a gun with him, but we rejected his
argument Although "[the police] may not have had
specific information that Turner currently had
weapons, . . . the facts they did have made this highly
likely." 926 F.2d at 887.
Here, the police had more information about the
suspect's access to weapons than in Turner. Ac-
cording to the Confidential Reliable Informant (CRI),
Shelby was hiding in the home of another suspected
drug dealer, ER at 52; two law enforcement officers
confirmed that someone matching Shelby's descrip-
tion was on the premises. ER at 23-24. The Infor-
mant also told police that "there were supposed to be
guns in the garage," ER at 52, a garage attached to
the house where Shelby was thought to be hiding.
Police thus not `only were informed that Shelby was

---------------------------------------- Page Break ----------------------------------------

21a

at that location, but that there were guns there-
something the police in Turner merely surmised.
The police in our ease did have to infer that Shelby or
someone else in the house might go for the guns if
cornered but, as we said in Turner, "the facts that
[the police] did have made this highly likely." 926
F.2d at 887.

    The majority's every effort to disparage the search
here only underscores the conflict with Turner. The
majority criticizes the police for failing to recognize
they "were not attacking a gang or cult hangout
where they might be met by a fusillade of gun fire,"
maj. op. at 1301; the same was true in Turner. The
majority complains that "[t]here is no suggestion
that the police presence was known," id. at 1302;
Turner complained about the exact same thing. See
926 F.2d at 887. The majority points out that "the
phalanx of already positioned officers on hand made
escape [by Shelby] unlikely," maj. op. at 1302; in
Turner, we held that "[t]he number of officers sur-
rounding the building and Turner's lack of prior
charges for escape are irrelevant." 926 F.2d at 887.
The majority carps, "Shelby was not known to have
ever shot or shot at anyone," maj. op. at 1301; Turner
hadn't even committed a violent crime. Every argu-
ment the majority makes here was considered and
rejected in Turner. 1     

___________________(footnotes)

    1 Any material differences between this case and Turner
cut against the majority's conclusion. First, the intrusion in
Turner was much more serious than that here. In Turner,
police broke into the apartment and "found Turner in bed with
a woman." 926 F.2d at 886. Here, they broke a single window
of the garage where they were told the guns were located and
poked a gun through the hole. Quite clearly, this was an effort
to keep Shelby (or whoever else was in tbe house) from making

---------------------------------------- Page Break ----------------------------------------

22a

    My colleagues try to duck Turner by claiming that
our cases "graph a . . . complex curve." Id. at 9467.
But if the law is that much in turmoil, we must call
for sua sponte en banc. See Atonio v. Wards Cove
Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) ("A
panel faced with [an irreconcilable] conflict must call
for en bane review. ." ). In fact, there is no pre-
existing conflict because Turner is the only case on
point. The other cases the majority cites did not
involve the breaking of property; 2 no more than a mild
exigency was thus required to uphold those entries.
These cases did not could not-speak to whether a
more serious intrusion was warranted.

    The majority's ruling not only creates a circuit
conflict, it's bad law on its own terms. There is much
rhetoric in the opinion about the sanctity of every
man's "little castle," but the principal reason we can
sleep safely at night is that the men and women of law
enforcement put their lives on the line to keep our

___________________(footnotes)

a run for the weapons. While the maneuver failed, it was a
rational and measured effort by the police to deal with the
dangerous situation presented to them. The search here was
also much less troublesome than in Turner because police had
obtained a no-knock warrant.  In Turner, police decided to
break down the door unilaterally and on the spur of the mo-
ment. Finally, unlike in Turner, police here tried, albeit unsuc-
cessfully, to announce their presence. ER. at 53 (the police
announced their presence over a loud speaker, but Ramirez
could not determine what was going on); see United States v.
Moreno, 701 F.2d 815, 817 n.3 (9th Cir. 1983) ("An attempt to
notify by knocking and announcing complies with the statute
whether or not it is heard,"), vacated on other grounds, 469
U.S. 913 (1989).
2 E.g., United States v. VonWillie, 59 F.3d 922 (9th Cir.
1995); United States v. Scott, 74 F.3d 175 (9th Cir. 1996);
United States v. Reed, 15 F.3d 928 (9th Cir. 1994).

---------------------------------------- Page Break ----------------------------------------

23a

castles from being invaded by brutal criminals. When
police track down "a major Methamphetamine manu-
facturer[, who] has had access to large caches of
weapons" and a history of torture and other violent
conduct, they are entitled to take precautions. A
castle, little though it be, often looks like a fortress
from the outside; police cannot know what's lurking
within. It's easy enough, sitting in our well-guarded
offices, and with the benefit of hindsight, to issue
 pronouncements about what the police should or could
have done, but this provides little useful guidance to
police in the field who must make difficult judgments
in unknown territory and subject to unpredictable
developments. What if the police had adopted the
majority's rosy view of Shelby and had politely tapped
at the door and asked if he would come along, but
Shelby had seized the guns in the garage, taken the
Ramirez family hostage and precipitated a shoot-out?
No doubt, we would then have issued a similarly smug
opinion, this time lecturing the police that they were
not free to ignore the words and warnings of their
CRI, and affirming the payment of compensation to
the Ramirezes or anyone else harmed in the alterca-
tion.

    My guess is that, had any of us been in charge of
this operation-had we been responsible for the lives
and safety of dozens of law enforcement officers and
the family sleeping inside-we would have done just
what the police here did. To have done less would have
been foolhardy (my colleagues' .high-fallutin' rhetoric
notwithstanding); to have done more would have been
excessive.  The police properly balanced the home-
owner's privacy and property interests against the
dictates of security. See Wilson v. Arkansas, 115 S.

---------------------------------------- Page Break ----------------------------------------

24a 

Ct. 1914, 1918 (1995) ('The Fourth Amendment's
flexible requirement of reasonableness should not be
read to mandate a rigid rule of announcement that
ignores countervailing law enforcement interests.");
United States v. Bustamante-Gamez, 488 F.2d 4, 10
(9th Cir. 1973) ("[I]t has never been suggested that
the [no-knock] requirement is an inflexible one; both
at common law and in the constitutional context
the courts have acknowledged that the interests [pro-
tected by the rule] may give way to other considera-
tions."), cert. denied, 416 U.S. 970 (1974). They de-
serve to be congratulated, not chastened and ridi-
culed.

    2. Even had the no-knock search been illegal, this
would provide no grounds for suppression of the
evidence pertaining to Ramirez.  In reaching the
contrary `conclusion, the majority raises conflicts
with two other of our cases, United States v. Jones,
608 F.2d 386 (9th Cir. 1979), and United States v.
Garcia, 516 F.2d 318 (9th Cir.), cert. denied sub nom.
Martinez- Lopez v. United States, 423 U.S. 934
(1975). In Jones, the police arrested the defendant on
suspicion of a Los Angeles area burglary and found a
motel "room key on him, they then searched the room
and discovered evidence of an unrelated burglary at
San Francisco's Presidio. Although the initial arrest
was illegal, evidence obtained from the motel room
was not excluded because exclusion could have had no
deterrent value. We held it "crucial" that the police
were not investigating the Presidio. burglary when
they illegally found the evidence, because "[deter-
rence can have its effect only when it can be said that
an object of the illegal conduct was the securing of
the evidence sought to be suppressed." Id. at 391

---------------------------------------- Page Break ----------------------------------------

25a

(quoting Allen v. Cupp, 426 F.2d 756, 759 (9th Cir.
1970)). Here, the police weren't out to catch a felon in
possession; they didn't even know Ramirez owned the
house, much less that he was a felon. 3 The object of
the supposedly illegal search was the arrest of Alan
Shelby for escape; police couldn't possibly be deterred
by the threat of exclusion of evidence relating to a
completely different person and crime. Cf Allen, 426
F.2d at 759 (exclusion when illegal police conduct in-
advertently reveals evidence would merely "make
tasting the fruit more difficult, but would not dimin-
ish its temptation").
    
    The majority leaps over the deterrence question
with a single bound: "[T]here can be little doubt that
suppression would serve to dissuade the police from
this kind of unnecessary invasion of people's homes."
Maj. op. at 9469. This is contrary to Jones and other
cases where we have held that suppression can
provide no deterrence when police officers, through

___________________(footnotes)
                                            
    3 Ramirez apparently was fond of pseudonyms. Utility re-
cords indicated a "Hernan Rios" lived at 23170 S.E. Bohna
Park Rd. ER. at 24. The CRI, however, said the owner went
by "Angel" or "Havannah."  Id. DMV records showed an
"Angel Rios" had a driver's license in the name "Angel
Estrada." Id. Even after the raid, the police weren't sure
who Ramirez was. The affidavit for the second warrant seeks
to search "the premises occupied by Herman Ramirez aka
Hernan Ramirez, Angel Estrada." Id. at 44.
    
    Ramirez's criminal record was also unknown to the police
before the search, After the search, Ramirez told police that
his birthday was May 8, 1957, and he had been convicted of
burglary in 1981. Id. at 45. Only then did a check of police
records reveal a Hernan or Herman Ramirez who was born on
May 8, 1955 and was convicted of rape in 1978 and burglary
with a firearm in 1982. Id. at 46.

---------------------------------------- Page Break ----------------------------------------

26a

"investigatory serendipity," stumble across evidence
of a crime of which they were previously unaware.
See United States v. Bacall, 443 F.2d 1050, 1056 (9th
Cir.) (it's "crucial to a determination of taint" that
police didn't suspect the defendant of the crime for
which their illegal activity produced evidence), cert.
denied, 404 U.S. 1004 (1971); Durham v. United
States, 403 F.2d 190, 196 (9th Cir. 1968) ("The price is
too high and the advantage too uncertain to make it
reasonable to suppose that law enforcement officers
will be encouraged to indulge in unlawful searches,
knowing that what they find will be suppressed, in the
hope of obtaining admissible evidence as remote and
fortuitously acquired as this.").

    The majority creates yet a third conflict, this time
with United States v. Garcia. Garcia was stopped at
an illegal checkpoint but then sped off and was
captured; police searched the car and found marijuana.
We declined to suppress. The suspect's intervening
act, we held, gave police new grounds for probable
cause that were untainted because police didn't intend
to provoke the response. Garcia, 516 F.2d at 320 ("By
ordering [the defendant] to stop, the officer could
hardly have intended him to flee."). Here, police de-
veloped new grounds for searching Ramirez's house
when he fired his gun. Following Garcia's rationale,
Ramirez's use of the gun was evidence untainted
by the (supposed) earlier illegality, unless police
intended to provoke the response. It's ludicrous to
suppose the police broke the garage window hoping to
provoke those inside to shoot at them. The majority
claims, inexplicably borrowing a deliberate ignorance
instruction from substantive criminal law, that the
police "willfully blinded themselves to [the] possi-

---------------------------------------- Page Break ----------------------------------------

27a

bility" of Ramirez's response, maj. op. at 9470 (citing
United States v. Jewell, 532 F.2d 697, 700-04 (9th
Cir.), cert. denied, 426 U.S. 951 (1976)). But, accord-
ing to Garcia, the test isn't willful blindness, it is
intent. Far from intending that the occupants of the
house shoot at them, the police here tried to prevent a
shoot-out by covering the. area where they thought
the guns were stored. Because Ramirez's interven-
ing act was not "the intended result of illegal police
conduct," Garcia, 516 F.2d at 319 (emphasis added), it
attenuates the alleged taint from the no-knock entry.

      *****

    Opinions like this lend support to the notion that
the Ninth Circuit is not a single court but a series of
disaggregate panels whose judges are guided by
their predilections rather than precedent. Because I
cannot join in this wholesale flouting of circuit
authority. I dissent.

---------------------------------------- Page Break ----------------------------------------

28a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
  FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

v.

HERNAN RAMIREZ, DEFENDANT

[Filed: May 4, 1995]

OPINION

HAGGERTY, Judge:

    Defendant was indicted for being an ex-felon in
possession of firearms. Defendant moves to suppress
evidence regarding his possession of the weapons at
issue because such evidence was obtained as a direct
result of the execution of a warrant that (1) lacked
sufficient probable cause, and (2) was unreasonably
executed. A hearing was conducted on 24 April 1995,
at which oral argument was presented regarding the
motion. This court denies the motion to suppress as
to the issue of insufficient probable cause, but grants
the motion as it pertains to the execution of the war-
rant.

---------------------------------------- Page Break ----------------------------------------

29a

BACKGROUND 

    Counsel have stipulated to most. facts surrounding
the issuance of the two warrants involved in this case,
and the subsequent arrest and charging of defendant.
In the early morning of 5 November 1994, several
dozen law enforcement officers encircled defendant's
home in Boring, Oregon, to execute a federal search
warrant seeking fugitive Alan Lawrence Shelby.
Shelby had escaped custody while enroute to testify
in a matter in Tillamook County. The United States
Marshal obtained a warrant for Shelby's arrest, and
conducted a manhunt that led to defendant's home.
    On 5 November 1994, law enforcement officers sur-  
rounded defendant's residence, identified themselves
over bullhorns, and ordered the residence's occupants
to come outside. At the same time, officers outside
the home's garage shouted "Sheriff - search war-
rant," and broke a garage window. Defendant fired a
gun from inside his home, prompting a hail of return
fire from the officers. Defendant was forced from his
residence and, after advice and waiver of rights,
acknowledged that he was a convicted felon, and that
he owned the gun he had fired as well as another
weapon. This information, coupled with an officer's
observation of a weapon inside defendant's home, was  
used to obtain a second search warrant permitting
officers to re-enter defendant's home later that day to
retrieve the weapons. Fugitive Shelby was not found
at the residence during either search.  Defendant,
however, was arrested and charged with being a
convicted felon in possession of weapons in violation
of 18 U.S.C.  922(g)(1).

---------------------------------------- Page Break ----------------------------------------

30a

ARGUMENTS
     
    Defendant challenges the validity and execution of
the first warrant regarding the search for Shelby.
That warrant's execution provided the grounds for
the second warrant pertaining to defendant's wea-
pons, and led directly to the seizure of those weapons.
Defendant contends that the seizure of the weapons
must be suppressed because the first warrant seeking
Shelby lacked sufficient probable cause and was im-
properly executed.

1.Probable Cause 

    Defendant first contends that the affidavit sub-
mitted in support of the warrant for Shelby was
insufficient to justify a conclusion that Shelby was
probably on defendant's premises at the time it was to
be searched. A magistrate's role is to determine
whether, given all the circumstances set forth in the
supporting affidavit, there is a fair probability that
what is being sought will be found in a particular
place. Illinois v. Gates, 462 U.S. 213, 238 (1983). The
magistrate determines this by considering the total-
ity of the circumstances, and a court reviewing this
decision must ask whether the magistrate had a sub-
stantial basis for concluding that sufficient probable
cause existed to issue a warrant. Id.
    This court is satisfied that the magistrate had
a substantial basis for finding probable cause to
believe that the fugitive being sought would be found
at defendant's residence. The affiant stated that a
confidential, reliable informant reported that he had
seen a man named "Alan" at the residence, and that
"Alan" had uttered words to the effect that "I had

---------------------------------------- Page Break ----------------------------------------

31a

to knock out a guard."  During his escape, Shelby
had slipped from his handcuffs and had assaulted an
officer.
    The informant had provided correct information
previously, leading to the arrest of another fugitive,
and, when driven to defendant's residence by an offi-
cer, the informant identified a man who was washing a
car in the driveway as "Alan." The officer with the
informant found the man to be similar in appearance
to a photograph of Shelby.
    The affiant also stated that he had made a second
reconnaissance of defendant's residence, and that a
man resembling Shelby had emerged from the home
during his surveillance.  Because of distance, how-
ever, a positive identification could not be made.
This affidavit established a substantial basis upon
which the magistrate could reasonably conclude that
under the totality of the circumstances, there was
probable cause to believe that Shelby would be found
at defendant's residence. Defendant's motion to sup-
press is denied as it pertains to the claim that the
affidavit failed to establish probable cause.

2. Execution of the Shelby Warrant     

    Defendant also contends that the execution of the
first warrant violated his Fourth Amendment rights
and did not comply with 18 U.S.C. 3109. That
statute provides:

The officer may break open any outer or inner
door or window of a house, or any part of a "house,
or anything therein, to execute a search warrant,
if, after notice of his authority and purpose, he is
refused admittance or when necessary to "liberate

---------------------------------------- Page Break ----------------------------------------

32a

  himself or a person aiding him in the execution of
  the warrant.
See also United States v. Mendonsa, 989 F.2d 366 (9th
  Cir. 1993).
      There is no factual dispute that the officers in
this case failed to adhere to the knock and announce
requirements described by 18 U.S.C.  3109 when
they "announced their identity and purpose but,
for safety reasons, brake the garage window before
waiting for the occupants to respond." Government's
Memorandum in Opposition at 7.
    The Ninth Circuit recently stated that the Fourth
Amendment's "concern for the privacy, the safety,
and the property of our citizens continues and is
reflected in knock and announce requirements" such
as those established in 18 U.S.C.  3109. United
States v. Becker, 23 F.3d 1537, 1540 (9th Cir. 1994). In
Becker, the court acknowledged that mild exigency,
such as knowledge that a person is dangerous, can
justify an immediate entry that is done without physi-
cal destruction of property. Id.
    To justify a warrant entry that is accompanied by
physical destruction of property, however, more spe-
cific inferences of exigency are necessary.  Id. at
1541. The government acknowledges that the offi-
cers' entry into defendant's home included the physi-
cal destruction of defendant's garage window. The
government contends that highly specific facts known
about Shelby, which were reported to the magistrate,
establish adequate inferences of exigency as required
by Becker. Shelby was known to have assaulted a dep-
uty in making his escape a few days before the war-
rant was executed. He had been convicted of manufac-
turing methamphetamine, using a firearm during a

---------------------------------------- Page Break ----------------------------------------

33a

crime, and armed robbery. He was reported to have
stated that he would "not do federal time." In 1991
Shelby struck a corrections officer and kicked a jail
door. During an escape he assaulted a woman, stole
her vehicle, and rammed a police car. Shelby was also
reported to have made threats to kill witnesses and
officers during his incarceration, and prior to his im-
prisonment, to have tortured other persons with a
hammer. He was also thought to have access to large
caches of weapons.
    This information regarding Shelby was reported in
the affidavit supporting the request for a warrant to
search defendant's property, and the affiant requested
that "the court grant a no-knock warrant exception."
Ex. A, attached to Defendant's Memorandum in Sup-
port of the Motion to Suppress. Additionally, the
government discloses that the officers had informa-
tion pertaining to the defendant himself that height-
ened their concerns. Defendant was believed to be
selling drugs and storing drugs and guns in his gar-
age.
    This Court is satisfied, as was the magistrate, that
there were sufficient exigent circumstances to' have
allowed immediate entry into defendant's residence
where entry could be obtained without physical de-
struction of property. Becker, 23 Fed at 1540; United
States v. McConney, 728 F.2d 1195, 1206 (9th Cir.
1984) (en bane) (opening of an unlocked screen door
was found permissible because of exigent circum-
stances). The officers' knowledge of Shelby's violent
past justified an immediate, no-knock entry into
defendant's residence.
    Knowledge of Shelby's violent past and defendant's
suspected drug activity, however, was insufficient to
meet the stricter standard required by Becker when

---------------------------------------- Page Break ----------------------------------------

34a

officers physically destroy property while gaining
entry into a residence. As the Ninth Circuit recog-
nized in Becker, neither knowledge of a possible
occupant's prior convictions for armed robbery, nor
of the possible possession of a weapon, provides suffi-
cient exigency to justify breaking into a house. Nor
is the danger inherent in pursuing drug dealers
sufficient to justify" an immediate entry that is
accompanied by destruction of property. Becker, 23
F.3d at 1541.
    Although there were specific facts known regard-
ing Shelby's propensity to attempt escape, his disdain
for federal incarceration, and his past willingness to
use threats and violence as a means of intimidation,
there was no information that he was armed and
dangerous at defendant's home, or that he would pre-
sent any specific dangers to arresting officers if
found there. There are insufficient exigent circum-
stances to establish that Shelby presented such a
threat to the force deployed to apprehend him in the
early morning of 5 `November as to justify abandon
ing the "simple and ancient requirement that the
officer[s] `ought to signify the cause of [their] coming,
and to make request [sic] to open doors'" before de-
stroying property during a governmental intrusion
into a person's home. Becker, 23 F.3d at 1541.
    Defendant had legitimate privacy, property and
safety interests which were entitled to protection
under the Fourth Amendment.  The law officers'
decision to compromise those interests by choosing
instead to destroy property while intruding suddenly
into defendant's home, although prompted by a knowl-
edge of Shelby's past, was not sufficiently supported
by circumstances Suggesting that the fugitive posed

---------------------------------------- Page Break ----------------------------------------

35a

a particular danger to others during this attempted
apprehension.

CONCLUSION

    Because the specific inferences of sufficient exi-
gency which must accompany the physical destruc-
tion of property during an unannounced entry are
lacking in this case, defendant's motion to suppress
must be granted as to this issue. There is no dispute
that the basis for the second search warrant of
defendant's home, and the subsequent seizure of the
weapons, were direct consequences of the manner in
which the first warrant was executed. For the rea-
sons stated above, this court concludes that the
manner of this execution was improper, and the sub-
sequent "fruit" of the improper execution is tainted   
and must be suppressed.
    Defendant's motion to suppress is denied as to the
contention that the initial search warrant was
unsupported by probable cause. The motion to sup-
press is granted, however, as it pertains to the law
officers' violation of the protections afforded defend-
ant under the Fourth Amendment and 18 U.S.C. 
3109. The seizure of the weapons found in defendant's
possession, which resulted directly from an improper
warrant execution during the early morning of 5
November 1994, is suppressed.

Dated this 4 day of May, 1995.

                                                                                                                       
/s/    ANCER L. HAGGERTY
        ANCER L. HAGGERTY
        United States District Judge

---------------------------------------- Page Break ----------------------------------------

36a

IN THE UNITED STATES DISTRICT COURT
  FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

v.

HERNAN RAMIREZ, DEFENDANT

[Filed: May 4, 1995]

 ORDER

HAGGERTY, Judge:

    Defendant's motion to suppress (doc. # 19) is denied
in part and granted in part. The motion is denied as
to the contention that the initial search warrant was
unsupported by probable cause. The motion to sup-
press is granted, however, as it pertains to the law
officers' violation of the protections afforded defend-
ant under the Fourth Amendment and 18 U.S.C. 
3109.

    The seizure of the weapons found in defendant's
possession which resulted directly from the improper
warrant execution during the early morning of 5
November 1994, is suppressed.

IT IS SO ORDERED.

Dated this 4 day of May, 1995.

/s/ ANCER L. HAGGERTY
ANCER L. HAGGERTY
United States District Judge

---------------------------------------- Page Break ----------------------------------------

37a

APPENDIX C

AFFIDAVIT

I, Wayne Kauffmann, being duly sworn do hereby
depose and say

1. I am a Deputy U.S. Marshal and have been so em-
ployed for 5 years.

2. On November 2, 1994, the U.S. Marshals Service in
Portland, Oregon, received information that a pris-
oner named Alan Lawrence Shelby had escaped from
the Tillamook County Sheriff on November 1, 1994.
Alan Shelby had slipped out of his handcuffs during
transport and assaulted a Deputy Sheriff by knocking
him down. Shelby then fled on foot and has not been
seen since.

3. I then reviewed the file on Alan Shelby and obtain-
ed the following facts.

    A. That Alan Lawrence Shelby was sentenced
on Criminal Case Number: CR.91-60195-1 charging
Conspiracy to Manufacture, Possession with Intent
to Distribute and Distribution of Methamphetamine,
in violation of 21 USC 841(a)(l) and 846, and the
charge of Use of a Firearm During a Drug Crime, in
violation of 18 USC 924(c).
    
    B. That Alan Lawrence Shelby was sentenced on
August 31, 1992 by the Honorable Michael R. Hogan,
United States District Judge for the District of
Oregon, for a period of 188 months on count 1 of the

---------------------------------------- Page Break ----------------------------------------

38a

Indictment, and 60 months consecutive on count 2 of
the Indictment.

    C. That Alan Lawrence Shelby had a history vio-
lent escapes in his criminal history.
    
    D. That Alan Shelby made statements in the past,
overheard by OSCI officers that he planned to escape
from a transport van when he had a chance. Shelby
also stated that he "will not do federal time".

    E. That Alan Shelby was serving a concurrent
Federal Sentence with his State Sentence at the
Oregon State Penitentiary.
  
    F. That Tillamook County Sheriff took temporary
custody of Alan Shelby and transported him to the
Tillamook County Courthouse.

    G. That Alan Shelby escaped from custody as he
stated he would.

    H. That Alan Shelby attempted escape in 1991 by
striking a corrections officer in the face and kicking
out the door of the jail. Shelby ran from the jail and
assaulted a woman in a parking lot and stole her
vehicle. During the escape attempt, Shelby rammed a
police vehicle with the stolen vehicle.

    I. That while awaiting trial in Eugene on Nar-
cotics and Weapons charges, Shelby attempted to
escape from the Lane County Jail by constructing a
rope made from torn bed sheets and breaking a
window.

    J. That Alan Shelby has made threats to kill wit-
nesses and police officers associated with his
incarceration.

---------------------------------------- Page Break ----------------------------------------

39a

    K. That Alan Shelby has brutally tortured others
in the past with a hammer.

    L. That Alan Shelby was a major Methamphe-
tamine manufacturer and has had access to large
caches of weapons.

4. Based on this information, a task force was
established which consisted of the following agencies:
U.S. Marshals, FBI, Oregon Department of Correc-
tions and the Tillamook County Sheriffs Office. A
press release was sent to the media requesting all
information on Shelby be given to the U.S. Marshals
Task Force. Numerous leads were established in the
Eugene area.

5. On November 3, 1994, I received information from
George Kim, a Special Agent with the Bureau of
Alcohol, Tobacco and Firearms (AFT). Agent Kim
had received information from a Confidential Reliable
Informant (CRI) regarding the fugitive, Alan Shelby.
This CRI has given very reliable information to the
AFT in the past, including information that led to the
arrest of a fugitive felon. The CRI stated that the
CRI had seen a person believed to be Alan Shelby at a
residence located at: 23170 S.E. Bohna Park Rd;
Boring, Oregon.  The CRI also overheard "Alan"
make a statement approximating the following. "1 had
to knock out a guard". At the time the statements
were made, the CRI thought nothing about it. The
next day, the CRI read an article describing the
escape, and relayed the information to Agent Kim.

6. Agent Kim then took the CRI out near the house
which is located on the Clackamas County line in
Boring, Oregon. Agent Kim and the CRI saw a man

---------------------------------------- Page Break ----------------------------------------

40a

who they believed to, be Alan Shelby, outside the
residence washing a car. Agent Kim described the
man they saw was very similar to the photograph of
Alan Shelby. The CRT also stated that this man was
the same person the CRI had seen previously at the
residence. Agent Kim said this person was very clean
cut and wearing what appeared to be a blue jumpsuit
or coveralls.

7. I then drove out to this residence with other
Deputy U.S. Marshals. The residence is located in a
rural area on about 10 acres of property. I was able to
view the residence from a nursery approximately 1000
yards away. The residence appears to be a light
colored tan brick single family house with a circular
driveway. There are numerous outbuildings which
include at least 2 travel trailers, a large blue shed,
and a smaller green shed. I saw a man come out of the
house wearing what appeared to be dark blue sweats,
and very clean cut.  From the distance, I couldn't
make a positive I.D. but I believe it was the same
person described by agent Kim.

8. The CRI stated that the person who resides at
23170 S.E. Bohna Park Rd. is known as Angel or
Havannah. A PGE power check lists the subscribers
as Hernan Rios and Cynthia Rios. I also received
information from DMV that Angel Rios has an
Oregon Drivers License under the name Angel
Estrada.

9. The latest description information from law
enforcement sources describe Alan Lawrence Shelby
as a white male, date of birth of 03-23-66, 5 feet, nine
inches tall, 160 pounds, with blue eyes and brown hair.

---------------------------------------- Page Break ----------------------------------------

41a

10. Based on this information, I believe Alan Shelby
is currently hiding at the residence at: 23170 S.E .
Bohna Park Rd. Boring, Oregon. I also believe Alan
Shelby is an extreme danger to law enforcement
officers and thereby request the court grant a no-
knock warrant exception. I also request that the
court grant permission for night time service on this
warrant.

11. Based on this information, I request the permiss-
ion for a search warrant on the residence located at
23170 S.E. Bohna Park Rd. for the body of Alan
Lawrence Shelby.

10. Shelby is currently the subject of an arrest
warrant in this district for the federal charge of
Escape in violation of 18 U.S.C. Section 751 arising
out of the incident described above.

11. Because this application involves information
given by a Confidential Informant, I respectfully re-
quest that the Court keep this document sealed until
the Court grants its disclosure at the appropriate
time,

Subscribed and sworn before me
this 4 day of November, 1994.

/s/  WAYNE KAUFFMANN  
      WAYNE KAUFFMANN
      Deputy U.S. Marshal

/s/ DONALD C. ASHMANSKAS 
  DONALD C. ASHMANSKAS
  U.S. Magistrate

---------------------------------------- Page Break ----------------------------------------

42a

APPENDIX D

[Defense Counsel's name and address omitted]

IN THE UNITED STATES DISTRICT COURT
  FOR THE DISTRICT OF OREGON

Cr. No. 94-379-HA

UNITED STATES OF AMERICA, PLAINTIFF

v.

HERNAN RAMIREZ, DEFENDANT

  STIPULATION OF FACTS FOR MOTION TO
SUPPRESS ON GROUNDS OF ILLEGAL EXECUTION
       OF SEARCH WARRANT

    With respect only to the defendant's argument that
evidence should be suppressed because the warrant
was executed in violation of the Fourth Amendment
and the federal no-knock statute, l the United
States of America, through Assistant United States
Attorney Stephen F. Peifer, and Hernan Ramirez,
through his attorney, Michael R. Levine, hereby
stipulate to the following facts:

    1 This stipulation is not relevant to defendant's argument
that the evidence should be suppressed on the grounds that
there was no probable cause to search to the defendant's home
for Mr. Shelby. To decide that question, the Court must look
only to the facts set forth in the affidavit to the warrant.

---------------------------------------- Page Break ----------------------------------------

43a

    In the pre-dawn hours of Saturday, November 5,
1994, Hernan Ramirez, his wife Cynthia, and his
three-year-old son Christopher were asleep in the
residence at 23170 Bohna Park Road in rural Boring,
Oregon. The residence has three bedrooms (including
a master bedroom), a living room, kitchen, and an at-
tached garage. A diagram of the property is attached
as Exhibit A. This property covers several acres and
includes, in addition to the residence, (1) a large work
shop building, located about 195 feet south of the
main residence (Diagram "E" in Exhibit A); (2) a
large travel trailer located about 75 feet west of the
workshop (Diagram "F"); (3) a small utility trailer,
located about 75 feet from the southwest corner of
the residence (Diagram "D"); and (4) a small travel
trailer, located immediately adjacent to the east side
of the garage (Diagram "C").
    At about 6:15 am., about 45 armed law enforcement
officers converged on the property to execute a fed-
eral search warrant for the person of one Alan Law-
rence Shelby. A federal and state fugitive, Shelby had
slipped from his handcuffs and struck a deputy sheriff
to escape while en route to testify on an associate's
behalf in Tillamook County. Shelby had a history of
escapes, violent conduct, and criminal convictions and
had vowed that he would not serve time in a federal
prison. Agents obtained information from a person
termed a confidential, reliable informant, that indi-
cated that Shelby had been present on the defendant's
property. (Further facts contained in the search
warrant affidavit, attached to defendant's memoran-
dum in support of his motion to suppress are hereby
incorporated into this stipulation). Other information
from the same informant indicated that the defendant
was possibly involved in drugs, which he kept in the

---------------------------------------- Page Break ----------------------------------------

44a

garage. The informant also indicated there were
supposed to be several guns in the garage.
    The U.S. Marshal sought authorization from the
issuing magistrate to serve the search warrant for
Shelby at night and do so without compliance with the
knock-and-announce requirement set forth in 18
U.S.C.  3109. The Marshall prepared the warrant
with the appropriate language, and the Magistrate
signed it.
    Special "SWAT" teams of state, county, and city
officers surrounded the property.  The Portland
Police SWAT team was responsible for clearing and
securing the large work shop building, the large
travel trailer, and `the small utility trailer.  The
Clackamas County Sheriff's SWAT Team would be
responsible for securing the garage area of the
residence through the East side window and for
securing the travel trailer on the east side of the
driveway immediately adjacent to the two car garage
(Diagram "C").
    Officers Lowe, McCuiston, and Thackson entered
the unlocked and empty travel trailer in the driveway.
While this was occurring, members of the Portland
State SERT team passed the location of the travel
trailer to other parts of the property.
    Thereafter, Deputy Barnum of the Portland Police
broke out the glass of the garage window. While he
did so, Sergeant VeraCruz shouted several times,
"Sheriff's Office, Search Warrant," at the window.
VeraCruz then began to "gunport" the window, that
is, aiming and moving his gun through the window
ready to shoot if necessary, but he had trouble when
the window's curtain got in his way.
    At about the same time as this activity at the
garage window, an Oregon State Police officer was

---------------------------------------- Page Break ----------------------------------------

45a

talking through a portable loud speaker system
located at the front of the house,  Sergeant Lowe,
while at the garage window, was unable to hear what
was being announced by the OSP officer because of
VeraCruz's yelling.  OSP Lieutenant Geistwhite,
however, who was present in front of the house next
to Detective Lockwood as Lockwood announced over
the loudspeaker:

State Police-search warrant. Attention inside
23170 SE Bohna Park. This is the State Police.
All occupants inside 23170 SE Bohna Park, you
are instructed to come out the front door now. Do
not resist. Have hands on heads. You will not be
harmed.

    Inside the residence, Mr. Ramirez and his wife
were awakened by outside noises.  Neither could
determine what the noises were. Mr. Ramirez then
heard the breaking of glass, and he and his wife
thought they were being burglarized. Both he and his
wife feared for their safety and that of their child who
had awakened and was crying. After hearing the
glass breaking, Mr. Ramirez ran to the laundry room
closet, obtained a pistol, and ran to the entrance of the
garage area. In a state of panic, Mr. Ramirez fired
toward the ceiling in an effort to scare away the
intruders. A fragment of metal struck Veracruz in
the face causing a slight wound.
    The law enforcement officers returned fire and
simultaneously shouted "police, police." Realizing,
for the first time, that law enforcement officers
were outside and trying to enter his residence, Mr.
Ramirez ran to the living room, threw away the
firearm across the floor, and threw himself on the
floor in a prone position, shaking from fright. Mr.

---------------------------------------- Page Break ----------------------------------------

46a

Ramirez states that had he known that the police
were trying to enter his home, he never would have
fired the weapon. Ultimately, Mr. Ramirez and his
wife, who was carrying their child in her arms, walk-
ed out of the house and into police custody. Despite a
thorough search of the property, the officers did not
find Shelby on the premises.
    About 6:35 a.m., ATF Agent George Kim inter-
viewed Mr. Ramirez. After advice and waiver of
Miranda rights, Mr. Ramirez admitted he had fired
the weapon, that he owned the gun he used as well as
another one in the house, and that he was a convicted
felon. He said that he had been awakened by noises
outside his house and heard the sound of breaking
glass. He said he shot up in the air to scare away
people he thought were trying to burglarize his home.
Because they were asleep, Mr. Ramirez said, neither
he nor his wife had heard any announcement of
identity by the officers.  Shown a picture of Shelby,
Mr. Ramirez said that a man with that appearance
might have been present on the property two days
earlier.
    Mrs. Ramirez also said that she did not know that
the police were trying to enter her home and that she
believed she was being burglarized and/or attacked by
intruders.
    Agent Kim used the information furnished by Mr.
Ramirez, along with a searching officer's observation
of the gun on the living room floor, to obtain another
search warrant (attached to the government's memo-
randum in opposition  to defendant's motion to
suppress, and hereby incorporated into this stipula-
tion). Executing the second warrant, agents re-
entered the house later the same day and retrieved

---------------------------------------- Page Break ----------------------------------------

47a

the pistol on the living room floor and a second one in
a box as Mr. Ramirez had described.

SO STIPULATED BY THE PARTIES:

/s/ MICHAEL R. LEVINE
  MICHAEL R. LEVINE
Attorney for Mr. Ramirez

/s/
A. U.S.A. STEPHEN F. PEIFER
for the Government

DATED: April 20,1995 DATED: 1/20/95

---------------------------------------- Page Break ----------------------------------------
48a

APPENDIX E

UNITED STATES COURT OF APPEALS
   FOR THE NINTH CIRCUIT

No. 95-30158

D.C. No. CR-94-00379-1-ALH

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

HERNAN RAMIREZ, DEFENDANT-APPELLEE

[Filed: Nov. 15, 1996]

ORDER DENYING PETITION FOR REHEARING
  AND REJECTING SUGGESTION FOR
      REHEARING EN BANC

Before: REINHARDT, KOZINSKI, and FERNANDEZ,
Circuit Judges.
The panel has voted to deny the appellant's petition
for rehearing and to reject the suggestion for rehear-
ing en bane. Judge Kozinski would grant the petition
for rehearing and accept the suggestion for rehearing
en bane. Judge Kozinski's dissent is amended to
delete the penultimate sentence.
The suggestion for rehearing en bane was circu-
lated to the judges of the court, and no judge request-
ed a vote for en bane consideration.
The petition for rehearing is DENIED and the
suggestion for rehearing en banc is REJECTED.

---------------------------------------- Page Break ----------------------------------------

No. 96-1469

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITED STATES OF AMERICA , PETITIONER

v.

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE  NINTH  CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WALTER DELLINGER
Acting Solicitor General

Deparment  of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------
 
TABLE OF AUTHORITIES

Cases:
Dorman v. United States, 435 F.2d 385 (D.C. Cir.
1970) . . . . 3, 4
Richards v. Wisconsin, No. 96-5955 (Apr. 28,
1997) . . . . 5
Sabbath v. United States, 391 U.S. 585 (1968) . . . . 4
Stevens v. Department of Treasury, 500 U.S. 1
(1991) . . . .  2
United States v. Brown, 52 F.3d 415 (2d Cir.
1995), cert. denied, 116 S. Ct. 754 (1996) . . . . 3
United States v. Maden, 64 F.3d 1505 (10th Cir.
1995) . . . . 3
United States v. McConney, 728 F.2d 1195 (9th
Cir.), cert. denied, 469 U.S. 824 (1984) . . . . 2
United States v. Stewart, 867 F.2d 581 (10th Cir.
1989) . . . . 3
United States v. Wells, 117 S. Ct. 921 (1997) . . . . 1
United States v. Williams, 504 U.S. 36 (1992) . . . . 1, 3
Virginia Bankshares, Inc. v. Sandberg, 501 U.S.
1083 (1991) . . . . 1-2
Wilson v. Arkansas, 115 S. Ct. 1914 (1995) . . . . 4

Constitution and statute:

U.S. Const. Amend. IV . . . . 4 
18 U.S.C. 3109 . . . . 4

Miscellaneous:

Arthur D. Hellman, By Precedent Unbound: The
Nature and Extent of Unresolved Intercircuit
Conflicts, 56 U. Pitt. L. Rev. 693 (1995) . . . . 3

(I)

---------------------------------------- Page Break ----------------------------------------

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

No. 96-1469

UNITED STATES OF AMERICA, PETITIONER

v.

HERNAN RAMIREZ

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

    1. Respondent contends that the government
waived its right to challenge the Ninth Circuit's two-
tiered approach in this Court because it did not
directly challenge that rule until seeking rehearing
and suggesting rehearing en bane.  This Court's
traditional rule, however, "precludes a grant of cer-
tiorari only when the question presented was not
pressed or passed upon below." United States v.
Williams, 504 U.S. 36, 41 (1992) (internal quotation
marks omitted). " That * * * rule operates (as it
is phrased) in the disjunctive, permitting review of
an issue not pressed so long as it has been passed
upon." Ibid.; see also United States v. Wells, 117 S.
Ct. 921, 925-926 (1997); Virginia Bankshares, Inc. v.

(1)

---------------------------------------- Page Break ----------------------------------------

2

Sandberg, 501 U.S. 1083, 1099 n.8 (1991); Stevens v.
Department of Treasury, 500 U.S. 1, 8 (1991). The
court  of appeals clearly  "passed upon" the issue that
is presented in the petition; it explicitly applied a
two-tier approach to unannounced entries that re-
quires more specific inferences of exigency when the
entry involves physical destruction of property. Pet.
App. 8a.
    The government's acquiescence in the two-tier rule
until the rehearing stage does not provide a basis for
denying review as a matter of discretion. The two-
tier rule represented established Ninth Circuit prec-
edent, under an en banc decision of many years'
standing. United States  v. McConney, 728 F.2d 1195
(9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).  1
The district court had no authority to depart from
that rule, and the government could not have pre-
vailed on its initial appeal by challenging it before
the panel. The government did, however, challenge
that rule at the rehearing stage, giving the en
bane Ninth Circuit the opportunity to reconsider its
rule. There is therefore no merit to respondent's

___________________(footnotes)

    1 In McConney, the en banc court of appeals upheld an
unannounced entry based on its conclusion that a "mild exi-
gency" was sufficient to justify an entry that did not involve
property destruction. 728 F.2d at 1206. Because it prevailed
in McConney, the government had no opportunity to seek
review of the court's two-tier standard. And, when McConney
filed a petition for a writ of certiorari challenging the "mild
exigency" holding, the government urged that certiorari be
denied because, "under any standard, exigent circumstances
fully justified the officers' actions here." Memorandum for the
United States in Opposition at 3, McConney v. United States,
No. 83-1884 (0.T. 1984). Moreover, as respondent notes (Br. in
Opp. 14-15 & n.3), in the intervening years, the government
generally prevailed even under the two-tier standard.

---------------------------------------- Page Break ----------------------------------------

3

contention that the petition should be denied because
of an alleged waiver. Cf. United States v. Williams,
504 U.S. at 44-45.
    2. Respondent argues (Br. in Opp. 9) that there is
no circuit conflict over the Ninth Circuit's two-tiered
approach because "[t]he government fails to cite a
single case that has ever even questioned the Ninth
Circuit's approach, much less rejected it." Although
circuit conflicts may be noted explicitly by the lower
courts, such overt recognition is not a necessary
precondition for a conflict, since one exists "when two
courts have articulated plainly inconsistent state-
ments of law and have used them to reach different
results on the same issue." Arthur D. Hellman, By
Precedent Unbound: The Nature and Extent of
Unresolved Intercircuit Conflicts, 56 U. Pitt. L. Rev.
693,712 (1995). As we demonstrate in our petition for
a writ of certiorari (Pet. 18-21), no other court of
appeals focuses on damage to property as the key
determinant requiring greater specificity of proof to
justify an unannounced entry by law enforcement
officers. 2.  Thus, contrary to respondent's claim, the

___________________(footnotes)

    2  Respondent relies on United States v. Stewart, 867 F.2d
581, 584 (10th Cir. 1989); United States v. Brown, 52 F.3d 415,
421 (2d Cir. 1995), cert. denied, 116 S. Ct. 754 (1996); and Dor-
man v. United States, 435 F.2d 385, 393 (D.C. Cir. 1970). As
we note in our petition (Pet. 20 & n.9), however, a subsequent
decision by the Tenth Circuit has held that Stewart imposed no
requirement that a "specific showing" is needed. See United
States v. Maden, 64 F.3d 1505, 1509 n.2 (1995). Similarly,
respondent does not take issue with our explanation (Pet. 20 &
n. 10) that the Second Circuit's decision in Brown does not
entail a two-tier inquiry-either in its articulation of the gov-
erning multi-factor test or in its application of that standard.
And Dorman cannot be construed to require a specific (and

---------------------------------------- Page Break ----------------------------------------

4

consideration of property damage by the other courts
of appeals is "plainly inconsistent'! with the Ninth
Circuit's requirement of a greater showing on the
government to justify such an entry when property
has  been destroyed.
    3. Respondent further contends (Br. in Opp. 15-26)
that the outcome below was correct for alternative
reasons. Those contentions are either irrelevant or
without merit. The court below assumed the exis-
tence of probable cause in rendering its decision on
the knock-and-announce issue, see Pet. App. 12a n.1,
and the district court properly rejected respondent's
submission that probable cause for the warrant was
lacking, see id. at 28a. The court of appeals' decision
not to reach the probable cause issue does not pre-
clude this Court's review of the appropriate principles
to apply when law enforcement officers make a "no-
knock" entry. Similarly, respondent's challenge to
the magistrate judge's jurisdiction to issue an appro-
priate warrant is misplaced. Not only did respondent
not raise this issue below, but the legal principle pre-
sented in the petition should be decided irrespective of
what judicial officer has the appropriate authority to
issue the search warrant. Finally, respondent sug-
gests (Br. in Opp. 21) that "Section 3109 contains no
exception for danger to the officers executing the
warrant." That contention, however, misunderstands
the balancing of interests inherent in Section 3109's
codification of Fourth Amendment and common-law
principles. See Pet. 10-11 & n.3 (discussing Wilson v.
Arkansas, 115 S. Ct. 1914, 1918 n.3 (1995); Sabbath v.
United States, 391 U.S. 585, 591 n.8 (1968)).

___________________(footnotes)

higher) showing if the entry will involve even de minimis
destruction of property. See 435 F.2d at 393.

---------------------------------------- Page Break ----------------------------------------

5

    4. In seeking to defend the correctness of the
court of appeals' judgment, respondent relies (Br. in
Opp. 26-34) on a totality-of-the-circumstances in-
quiry. That approach, however, is not the theory
of the court of appeals. Critical to the Ninth Circuit's
unique rule is the principle that property damage
significantly elevates the threshold showing needed
to justify an entry without compliance with the
knock-and-announce requirement; the "mild exi-
gency" sufficient to justify no-knock entries without
property damage is not enough. The issue that
warrants review by this Court is whether the two-
tier standard should govern the analysis. We submit
that it should not.
    The Ninth Circuit's rule erroneously makes the
need to damage property dictate the showing of
whether it is "reasonable" for officers to enter with-
out a prior announcement. As this Court explained in
Richards v. Wisconsin, No. 96-5955 (Apr. 28, 1997),
slip op. 8:
     In order to justify a "no-knock" entry, the police
     must have a reasonable suspicion that knocking
     and announcing their presence, under the particu-
     lar circumstances, would be dangerous or futile, or
     that it would inhibit the effective investigation of
     the crime by, for example, allowing the destruc-
     tion of evidence.

    If the police lack such a reasonable suspicion, an
unannounced entry is not permitted. But if the police
have such a reasonable suspicion, officers are permit-
ted to effect a sudden entry-and thus protect their
own and others' safety or preserve the objects of the
search-whether or not some breakage of property is
required.

---------------------------------------- Page Break ----------------------------------------

6

    Although respondent expresses the view that it is
generally safer to knock and announce, the judgment
of law enforcement officers is that avoidance of
danger is often best achieved when officers quickly
take control of the situation in a no-knock entry. The
Ninth Circuit's rule thus inhibits law enforcement
practices that reduce risks in the execution of
warrants. See Pet. 21. The holding below magnifies
the problems in the Ninth Circuit's rule, because the
destruction of property was de minimis-a broken
garage door windowpane-and the fugitive sought by
the officers had already harmed other innocent per-
sons. The court's decision thus improperly mini-
mizes the legitimate and reasonable interests of law
enforcement officers by imposing a two-tier showing
every time the execution of a search warrant in a "no-
knock" circumstance results in damage to property.
Because there is no reason that officers operating in
the jurisdiction of the Ninth Circuit alone should
have to face enhanced risks, this Court's review is
warranted.

    For the reasons stated above and in the petition for
a writ of certiorari, the petition should be granted.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

MAY 1997