United States Court of Appeals

For the Eighth Circuit

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No. 18-2948

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Sergio Diaz-Ortiz

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - Joplin

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Submitted: April 18, 2019

Filed: June 20, 2019

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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

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MELLOY, Circuit Judge. 

Appellant Sergio Diaz-Ortiz seeks, for the first time on appeal, suppression of

evidence obtained after an alleged violation of the knock-and-announce rule under

the Fourth Amendment and 18 U.S.C. § 3109. Applying plain-error review, we

affirm the judgment of the district court.

1

1The Honorable M. Douglas Harpool, United States District Judge for the

Western District of Missouri. 
I. Background

On June 16, 2016, officers with the Ozark Drug Enforcement Team and the

Bureau of Alcohol, Tobacco, Firearms and Explosives took Justin Thurston, a

methamphetamine dealer, into custody. Prior to being taken into custody, Thurston

told the officers that his supplier, whom he knew as “Pedro,” had a room at the

Microtel Hotel, located in Joplin, Missouri. Thurston also indicated that he had seen

a large amount of methamphetamine in the room earlier that day. The officers then

drove to the Microtel Hotel and contacted hotel management. They eventually

learned that the man Thurston identified as “Pedro” was actually Diaz-Ortiz and that

Diaz-Ortiz wasrenting room239. Based upon the information provided byThurston,

the officers applied for a search warrant. 

While waiting for the search warrant, the officers learned that Thurston had

been released from custody. The officers became worried that Thurston would alert

Diaz-Ortiz to their presence and that Diaz-Ortiz would begin destroying evidence.

They therefore decided to enter the room and secure Diaz-Ortiz to prevent the

potential destruction of evidence. The officers went to room 239 and knocked on the

door. Hearing Diaz-Ortiz approach the door, they used a key card obtained from

hotel management and entered. Upon entering, the officers detained Diaz-Ortiz and

advised him of his Miranda rights. They did not search the room. According to the

district court, Diaz-Ortiz implied to the officers that he did not wish to speak with

them until he had a lawyer present. Officers engaged in conversation with DiazOrtiz while they were waiting for the search warrant, however, and Diaz-Ortiz told

them that there were three pounds of methamphetamine in the room.

A few hours after entering the room and detaining Diaz-Ortiz, more officers

arrived with a signed search warrant. Only then did the officers search the room. 

Their search uncovered: approximately three pounds of methamphetamine, $10,331

in cash, a loaded handgun, and sample amounts of heroin and cocaine. Diaz-Ortiz

was arrested and transported to the Newton County Jail. 

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At a suppression hearing, Diaz-Ortiz argued that the officers conducted an

unlawful, warrantless entry into room 239 and that any evidence or statements

obtained as a result of that entry should be suppressed. The district court concluded

that the officers’ entry was unlawful and suppressed Diaz-Ortiz’s unprompted

statement regarding the amount of methamphetamine in the room. The district court,

however, did not suppress the evidence discovered during the search of the room. 

The court held that the search warrant, which was issued based solely on evidence

obtained prior to the officers’ unlawful entry, was an independent source of the

evidence obtained during the search, and thus suppression was not warranted. 

On appeal, Diaz-Ortiz argues for the first time that the search evidence should

have been suppressed because it was obtained after an alleged violation of the knockand-announce rule under the Fourth Amendment and 18 U.S.C. § 3109. 

II. Standard of Review 

Because Diaz-Ortiz did not timely raise the knock-and-announce issue before

the district court, we review his appeal for plain error. United States v. James, 353

F.3d 606, 612 (8th Cir. 2003). “To obtain relief under a plain-error standard of

review, [Diaz-Ortiz] must show that there was an error, the error is clear or obvious

under current law, the error affected [his] substantial rights, and the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). 

III. Discussion

The district court did not commit plain error. The Supreme Court’s ruling in

Hudson v. Michigan, 547 U.S. 586 (2006) disposes of this case. In Hudson, the

Supreme Court considered whether a gun and drugs seized by officers pursuant to a

search warrantshould be suppressed because the officers had violated the knock-and-

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announce rule in the course of executing the warrant. Id. at 592. Based on the facts

of that case, the Court found that “whether that preliminary misstep had occurred or

not, the police would have executed the warrant they had obtained, and would have

discovered the gun and drugsinside the house.” Id. The Court then held that because

the knock-and-announce violation had “nothing to do with the seizure of the

evidence, the exclusionary rule [was]inapplicable.” Id. at 594;see also United States

v. Gaver, 452 F.3d 1007, 1008 (8th Cir. 2006) (“[Defendant’s] motion to suppress

was premised entirely on his contention that officers violated the Fourth Amendment

by failing to knock and announce their presence, and Hudson disposes of his claim.”). 

Similarly, in this case, the officers’ alleged violation of the knock-andannounce rule had nothing to do with their seizure of the gun, drugs, and cash in

Diaz-Ortiz’s hotel room pursuant to their search warrant. As the district court found,

the search warrant was based solely on evidence obtained prior to the officers’ entry. 

Therefore, regardless of whether the officers violated the knock-and-announce rule,

they still would have obtained and executed the warrant and discovered the

aforementioned evidence. Accordingly, Diaz-Ortiz’s claim is foreclosed. 

To the extent Diaz-Ortiz argues that the Supreme Court’s analysis in Hudson

does not apply to knock-and-announce violations under 18 U.S.C. § 3109,

2

a number

of circuits have found otherwise. See United States v. Bruno, 487 F.3d 304, 305–06

(5th Cir. 2007) (collecting cases and holding that “Hudson compels the conclusion

that suppression is not the remedy for a violation of § 3109”); see also United States

v. Acosta, 502 F.3d 54, 59 (2d Cir. 2007) (“[T]he reasoning in Hudson applies with

equal force to § 3109.”). This Court has not yet addressed the issue, but even

2Section 3109 reads: “[An] 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 isrefused admittance or when

necessary to liberate himself or a person aiding him in the execution of the warrant.” 

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assuming it might be error to apply Hudson to violations of 18 U.S.C. § 3109, that

error is certainly not “clear or obvious under current law.” Poitra, 648 F.3d at 887. 

IV. Conclusion

We affirm the judgment of the district court. 

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