* The gov ernment filed a notice of

appeal, Docket N o. 05-151 4-cr(X AP), but ul

timately elected not to pursue a cross-appeal. 05-1284-cr United States v. Carvajal UNIT ED S TAT ES COU RT OF A PP EALS 1 2 F OR THE S ECOND C IRCU IT 3 4 5 6 August Term, 2006 7 8 (Argued: July 12, 2007 De cided: September 5, 2007) 9 10 Docket N os. 05-12 84-cr(L); 0 5-1514-c r(XAP) * 11 12 13 U NITED S TAT ES OF A MERICA , 14 15 Appellee , 16 17 –v.– 18 19 S TEVEN A COS TA , L INDA H ODGE , T ODD B LUNT , R OBER T C ARVAJAL , 20 21 Defenda nts , 22 23 J OSEPH C ARVAJAL , 24 25 Defendant-Appellant

. 26 27 28 29 Before: 30 P OOLER , B.D. P ARKER , W ESLEY , Circuit Judges

. 31 32 Appeal from a judgment of conviction entere d in the United States District Court for the 33 Southern District of New York (Hellerstein, J. ) on March 9, 2005. 34 35 A FFI RMED . 36 372 1 2 J EREMI AH D ONOVAN , Old Saybrook, CT, for Defendant-Appellant

. 3 4 D ANIEL L. S TE IN , A ss is ta nt Un it ed St at es At to rn ey on behalf of Michael J. Garcia, United 5 States Attorney for the Southern District of New York (Katherine Polk Failla, 6 Assistant United States Attorney, on the brief ), for Appellee

. 7 8 9 10 W ESLEY , Circuit Judge : 11 Joseph Carvajal argues his conviction should be overturned, claiming the evidence 12 presented against him at trial was obtained in violation of the knock-a nd-announce rule under the 13 Fourth A

mendment

and 18 U.S .C. § 3109. Befor e oral a rgumen t, but afte r Carvaj al filed h

is 14 brief, the Supreme Court held in Hudson v. Michigan , 126 S. Ct. 2159 (2006), that although a 15 police officer’s failure to abide by the knock-and-announce rule may violate an individual’s right 16 to be free from unreasonable sea rches under the Fourth Amendment, the exclusionary rule does 17 not apply to evidence discovered in the ensuing search. Hudson forecloses Carvajal’s argume nt 18 in favor of suppression under the Fourth Amendment, y et leaves us to decide whether the 19 exclusionary rule applies to putative violations of § 3109. We hold that it does not and join the 20 circuits that have considered the matter. See United States v. Bruno , 487 F.3d 304 (5th Cir. 21 2007); United States v. Southerland , 466 F.3d 1083 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 22 1361 (2007). Because an alleg ed violation of the knock-and-announce rule—both under the 23 Fourth Amendment and § 3109— does not trigger the exclusionary rule, we affirm the judgment 24 of convic

tion ente red ag ainst Car

vajal. 25 263 I. 1 Carvajal and his brother managed a c urrency counterfeiting scheme—the fruits of which 2 they used to purcha se crack cocaine—from an a partment complex located on 115th Street in New 3 York City. The two brothers lived in one apartment; several of their associates slept in the other. 4 Upon learning about the criminal activity from a confidential informant, the United States Secret 5 Service obtained a warrant for Carva jal’s arrest and search warr ants for the two apartments. The 6 search warrants authorized the Secret Ser vice to confiscate any

counterfeit currency, computers 7 and print

ers used to crea te counte rfeit cu rrency , crack cocaine , and dru

g para phernal ia found i

n 8 the apartments. An attached affidavit, authored by a member of the Counterfeiting Squad for the 9 Secret Service, indicated that Carvajal kept three firearms in his apartment. 10 At six o’clock in the morning, twenty Secr et Service agents simultaneously executed the 11 search warrants and arre st warrant at the two apartments. Following their pre -dawn arrival at the 12 apartment building, the agents split into two teams and dispersed to the sixth and tenth floors. 13 The ten a

gents a ssigned

to Carvaj al’s sixth- floor ap artment h uddled in t

he hallwa y a round his 14 door and

prepar ed for e ntry . An attem

pt to slide a

fiberoptic scope

under the apartme nt door did 15 not yield any

information, prompting the supervising agent to ra dio the signal to execute the 16 warrant. One agent pounded on the door to Carvajal’s apartment and y elled “Police!” 17 Receiving no response within five seconds, the ag ents brought out their battering ram, struck the 18 door three times, and breached the entra nce. As they f

anned out inside the apartment, Carvajal’s 19 brother ran toward the age nts holding a firearm. Two agents re sponded with gunshots to the 20 brother’s head and mid-section. An age nt standing outside the apartment building, hearing the 214

gunshots, looked up and watched as a computer printer and handgun fell from the apartment 1 window. The Secret Service collected the printer and handgun from the courty ard behind the 2 apartment, as well as drug paraphe rnalia and printing supplies from within the apartment. 3 The government indicted Carvajal on ten counts ar ising out of his counterfeiting and 4 crack cocaine scheme. Prior to trial, Carva jal sought to suppress the evidence obtained during 5 the search, alleging the government obtained the evidence in violation of the Fourth Amendment 6 and 18 U.S.C. § 3109. He did not dispute the fact that the agents knocked on his door and 7 identified themselves as the police, but argued the unre asonableness of the agents’ five- second 8 pause. At the suppression hearing, the district court re ndered an oral judgment deny ing 9 Carvajal’s motion: 10 The simultaneous execution of the warrants on two neighboring apartments, the 11 easeof communication by ce ll phones and other mea ns, an d the ability to destroy 12 evidence, at least major parts of the evidence, by discarding them out the window in 13 anarea wher e others may also be involved w ith narcotics, and the kinds of 14 contraband make it important for speedy and efficient execution of the warrant. 15 Even at 6:00 in the morning, the kinds of lo ud knocki ng that o ccurre d and noise 16 of

the battering that occurred would have c aused occupants within, if they had a 17 reasona

ble belief of their own propriety , to say , “stop, I’ll answer the door, don’ t 18 break

in the door, I’m coming,” or anything like tha

t. There was no such mention of 19 anything

of this, an d the officers, I hold, we re looking and listening for such 20 evidence, and accordingly , they were

justified in ramming down the door. 21 Carvajal proceeded to trial, where he was found guilty

of one count of conspiracy to make and 22 distribute counterfeit currency, four counts of passing counterfeit curr ency, a nd one count of 23 conspiracy

to distribute crack cocaine. He was found not g uilty of distributing crac

k cocaine, of 24 possessin

g a fir earm in f urthera nce of a drug-t rafficking cr

ime, of ill egally

possessin

g a fir earm, 25 and of destroying evidence to avoid its seizure. This appeal followed. 265 II. 1 The government and Carvajal dispute the proprie ty of the ag ents’ actions under the 2 Fourth A

mendment

and 18 U.S .C. § 3109. Whether s uch a viol ation occ

urred, however , is 3 irrelevant; the exclusionary rule has no application when a defendant alleges a violation of the 4 knock-and-announce rule under e ither the Fourth Amendment or § 3109. As a result, the district 5 court pr

operly admitted e

vidence obtained during t he sear ch of Car vajal’s a partmen t. 6 The Four

th Amendme

nt knock- and-ann

ounce pr inciple a nd § 3109 share the

same 7 common law roots, overlap in scope, and protect the same intere sts, which necessitates similar 8 results in

terms of t

he exclusi onary

rule’s a pplication. Section

3109 authorizes fe deral of ficers t o 9 break op en doors or windows for entr y or exit in cer

tain circ umstance s: 10 The officer may break open any outer

or inner door or window of a house, or any part 11 of

a house, or any

thing therein, to exec ute a search warran t, if, aft er notic e of his 12 authority

and purpose, he is refuse d admittan ce or when nece ssary

to libera te himself 13 or a person aiding him in the execution of

the warr ant. 14 15 18 U.S.C. § 3109. Although first codified in 1917, see Act of June 15, 1917, ch. 30, tit. XI, §§ 8- 16 9, 40 Stat. 229, “[f]rom earliest days, the common law dra stically limited the authority of law 17 officers to break the door of a house to ef fect an arrest.” Miller v. United States , 357 U.S. 301, 18 306-07 (1958) (footnote omitted). By enacting § 3109, Congress codified this common law 19 tradition , thereby de monstrati ng its “ revere

nce of the law for

the individ

ual’s rig ht of priv acy

in 20 his house.” Id. at 313. The Fourth Amendmen

t, the sco pe of whi ch is esta

blished, a t least in 21 part, by

refer ence to t he tradi tional protections a

fforde d by

the common law, like

wise 22 incorporates this principle: The “Framers of the Fourth Amendment thought that the method of 23 an officer’s entry into a dwelling was among the factors to be considered in assessing the 246

reasonableness of a search or seizure.” Wilson , 514 U.S. a t 934. Acc ordingl

y, u nder the Fourth 1 Amendmen

t and § 310 9, “[e]ver

y ho useholde r, the g ood and the bad, the guilty and the in

nocent, 2 is entitled to the protection designed to secure the common interest against unlawful invasion of 3 the house.” Miller , 357 U.S. at 313. 4 Law

enforc ement of

ficers w ho execute

a searc h warra nt at a re sidence

gener ally must 5 give notice of their authority and provide the occupant a reasonable oppor tunity to respond 6 before entering. Wilson v. Arkansas , 514 U.S. 927, 934 (1995). The Fourth Amendment’s 7 inquiry into the totality of the circumstances surrounding a sea rch incorporates this principle; 8 “the meth

od of an o fficer ’s entry

into a dwe lling [is] am

ong the factor s to be con sidered

in 9 assessing the reasonableness of a se arch or seizure.” Id. Although suppression provides a potent 10 deterr

ent for a ny n umber of unreasonable se arches

and seizur

es under the Four th Amendme

nt, 11 the Supreme Court in Hudson , 126 S. Ct. 2159, concluded that a police officer’s violation of the 12 Fourth Amendment knock-and-announce rule does not require suppression of the evidence 13 obtained in the ensuing search. 14 Hudson involved a conceded violation of the Fourth Amendment where state police 15 office

rs execut ing a se arch wa

rrant a nnounce d their pr

esence upon arr ival, but e ntered t hree to 16 five seconds later without permission from the occupant. Id. at 2162-63. In holding that the 17 officers’ violation of the knock-and-announce rule did not mandate suppression, the Court 18 reasoned that, “[w]hether that preliminary misstep had occurred or not , the police would have 19 executed the warrant they had obtained, and would have discovered the g un and drugs inside the 20 house.” Id. at 2164 (e mphasis in origina

l). I n other words, the

“illeg al manne

r of entr y w as not a 217

but-for cause of obtaining the evidence .” Id. (emphasis in original omitted). The Court further 1 observed that the “considerable” costs of enf orcing the knock-and-announce rule outweighed any 2 benefit that might be gained from suppression. Id. at 2165. A pply ing the e xclusionar

y r ule 3 might “generate a c onstant flood of alleged failures to observe the r ule,” encourage police 4 officers to wait longer than nece ssary bef ore entering, and force

courts to second-guess law 5 enforcement officers on what constitutes “a reasonable wait time.” Id. at 2166. Against t hese 6 costs, the

Court foun

d any deterr ence va lue “not worth a lot; ” adher ence to t he rule merely 7 ensures that property will not be destroyed or that oc cupants will not engage in life-threa tening 8 resistance. Id. The availability of c ivil suits, which generate attorney s’ fees under 42 U.S.C. § 9 1988(b), and the “increasing prof essionalism of police forces” similarly undercut the deterrence 10 value inherent in the exclusionary rule. Id. at 2167-68. As a result, the Court found unjustified 11 any “[r]esort to the massive reme dy of suppressing evidence of guilt” whenever a police officer’s 12 failure to follow the knock-and-announce rule violates the Fourth Amendment. Id. 13 Although Hudson forecloses Carvajal’s argume nt that the Fourth Amendment requires 14 suppress ion of the evidenc e obtaine d during the sear ch of his a

partmen t, Carvaj al sugg ests 15 suppression is warranted on an independent gr ound, namely § 3109. Since Hudson involved 16 state law

enforc ement of

ficers w hose act ions were gover ned solel y by the Four th Amendme

nt, 17 the Supreme Court had no occasion to consider whether § 3109 re quired suppression of the 18 evidenc e obtaine d in violati on of the k nock-an d-annou nce rule . We find that the re asoning in 19 Hudson applies with equal force to § 3109, and thus hold that an alleged violation of the sta tutory 20 knock-and-announce rule cannot for m the basis for suppression of the evidence discovered in the 218

ensuing search. 1 Given the common law origins of § 3109 and the Fourth Amendment’s knock-and2 announce principle, it is unsurprising that they overlap to a considerable extent. I ndeed, we have 3 often obs erved that the contours of § 3109 coi

ncide wit h the rea sonableness inquir y of the Four th 4 Amendment. See United Sta tes v. Ale jandro , 368 F.3d

130, 137 (2d Cir. 200 4); Ayeni v. 5 Mottola , 35 F.3d 680, 687 n.9 (2d Cir. 1994) abrogated on other grounds by Wilson v. Layne , 6 526 U.S. 60 3 (1999); Rivera v. United States , 928 F.2d 592, 606 (2d Cir. 199 1); United States v. 7 Mapp , 476 F.2d 67, 75 (2d Cir. 1973). Because § 3109 “codifie s the common law in this area,” 8 while “the common law in turn informs the Fourth Amendment,” Fourth Amendme nt cases 9 necessarily

“serve as guideposts in construing the statute.” United States v. Ramirez , 523 U.S. 65, 10 73 (1998) ; see also United States v. Banks , 540 U.S. 31, 42-43 (2003) (holding officers’ entry 11 upon rea sonable s uspicion o f exigen

t circums tances s atisfied

both § 3109and the F ourth 12 Amendment). 13 Because of this cross-fertilization, both § 3109 and the Fourth Amendment knock-and14 announce principle have been held subject to the same exceptions and found to protect similar 15 interests. Three circumstances may justify a no-knock entr

ance, permitting officers to disreg ard 16 the knock and announce rule altogethe r: (1) when law enforcement offic ers reasonably fear 17 violence

may result if they were to a nnounce their pre sence; (2) when o fficers have re ason to 18 believe evidence may be destroye d if they wer

e to provide notice before entry ; or (3) when an 19 announcement by officers would be futile, as may occur when the circumstances indicate tha t the 20 inhabitants are well aware of the offic ers’ presence. See Richards v . Wisconsin , 520 U.S. 385, 219

394 (1997 ); United Sta tes v. Spi nelli , 848 F.2d

26, 28 (2d

Cir. 1988) . And like

the Four th 1 Amendment, § 3109 serves three principal interests: “(1) the r eduction of potential for violence 2 to both the police officer and the occupants of the house into which e ntry is sought; (2) the 3 needless destruction of private property ; and (3) a recognition of the individual’s right of privacy 4 in his house.” United Sta tes v. Bro wn , 52 F.3d 4 15, 421 (2 d Cir. 1995 ); see also Hudson , 126 S. 5 Ct. at 2165 (identifying identica l interests served by the

Fourth Amendment). But the knock6 and-announce rule, either under the F ourth Amendment or § 3109, has never prevented “the 7 government from seeing or taking evidence described in a warra nt.” Hudson , 126 S. Ct. at 2165. 8 In lig

ht of the in

tersection betwe en § 3109 a nd the Fo urth Amen

dment, we

find no re ason to hol d 9 the exclusionary rule applica ble to alleged violations of § 3109. 10 Carvajal suggests the lack of a civil remedy for

violations of § 3109 requires application 11 of the exclusionary rule to a dequately de

ter federal officers from violatingthe knock-and12 announce rule. A civil cause of action under 42 U.S.C. § 1983, which provides monetary r elief 13 when state actors violate federal law or the Constitution, may deter state office rs from violating 14 the knock-and-announce principle under the Fourth Amendment. See Hudson , 126 S. Ct. at 15 2166-67. Section 19 83, of co urse, doe s not apply

to alleg edly

unlawfu l acts of f ederal office rs, 16

see Wheeldin v. W heeler , 373 U.S. 6 47, 650 n.2(1963), a nd no othe

r statute provides a civil 17 remedy f

or violations of § 3109 by fede ral officers. But the lack of a c ivil remedy for § 3109 18 violations does not necessarily c ompel the conclusion that the deterrence value of the 19 exclusionary rule outweig hs its considerable costs, thereby requiring application of the 20

ex cl us io na ry r ul e t o e vi de nc e o bt ai ne d i n v io la ti on of § 3 10 9. As in di ca te d a bo ve , § 31 09 en jo ys 2110

appreciable overlap with the Fourth Amendment. One would think that the facts underlying an 1 allege d violation

of § 3109 would form

the basis for atta cking the propri ety

of the se arch as

also 2 violative of the Fourth Amendment. See, e.g. , Banks , 540 U.S. a t 41-43; Alejandro , 368 F.3d at 3 137-38. If such is the case , a cause of action for damag es may lie against the federal officer 4 under Bivens v. Six Unknown Agents of the Federal Bureau of Investigation , 403 U.S. 388 5 (1971). The possibility of a Bivens claim, as much as a § 1983 claim against a state off icer, 6 provides an adequate incentive for fede ral officers to stay

within the bounds of the knock-and7 announce rule when executing searc h warrants. See United Sta tes v. Lang ford, 314 F.3d 892, 8 894-95 (7th Cir. 2002) (observing “that 42 U.S.C. § 1983 and the Bivens doctrine have made tort 9 damages an effective r emedy for

constitutional violations by federal or state law enforcement 10 officers”). 11 We similarly agre e with the D.C. Circuit and the Fifth Circuit that no direct precedent 12 from the Supreme Court prevents us from holding the exclusionary rule inapplicable to § 3109. 13 See Bruno , 487 F.3d at 306; Southerland , 466 F.3d at 1084-86. It is true that, “[i]f a prece dent of 14 [the Supre

me] Court ha s direct a

pplication in a cas e, y

et appea rs to rest on reasons rejected in 15 some othe

r line of d ecisions , the Cour

t[s] of Appe als should

follow the

case wh ich dire ctly 16 controls, leaving to this Court the prerogative of over ruling its own decisions.” Rodriguez de 17 Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484 (1989). But neither Miller , 357 U.S. 18 301, nor Sabbath v. United States , 391 U.S. 585 (1968), stands as direct precedent requiring 19 application of the exclusionary r ule when a violation of § 3109 occurs. Section 3109 was not 20 directly at issue in Miller , for that case involved a District of Columbia law that the gover nment 2111

posited was analogous to § 3109 in deciding the propriety of action by loca

l police officers who 1 neither had a warrant nor stated their purpose upon knocking. 357 U.S. at 306. And “[l]ike 2 Miller , Sabbath invoked § 3109 by analog y to hold that an entry

for the purpose of making an 3 arrest was illegal. I t too is not a direct holding under § 3109.” Southerland , 466 F.3d at 1085. 4 Just as no Supreme Court precedent stands in the way of our holding, no previous 5 decision of our Court has held that a § 3109 violation requires suppression. Although a number 6 of our previous decisions have sugge sted in dicta that suppression follows a violation of § 3109, 7 no decision has explicitly ruled as much. For instance, United Sta tes v. Voz zella , 124 F.3d 389 8 (2d Cir. 1997), indicated that “[e]vidence seized in violation of Section 3109 must be excluded at 9 trial unless the noncompliance was excused by exigent circumstances,” id. at 393 (internal 10 quotation mark and citation omitted). That decision, however, ultimately concluded that the 11 record was insufficiently developed to decide whether a violation of § 3109 occur red and thus 12 had no reason to decide whether the exclusionary rule applied. Id. at 393-94. Similarly, Spinelli , 13 848 F.2d 26, observed that “[p]roperty seized in violation of § 3109 may be excluded from 14 evidence,” id. at 28, but had no opportunity to apply the exclusionary rule bec ause no violation of 15 the knock-and-announce rule occur red. Nor did United States v. Burke , 517 F.2d 377 (2d Cir. 16 1975), resolve the matter, for that decision merely observed in a footnote that “it has been 17 generally

understood that the exclusionary rule a pplies to violations of 18 U.S.C. § 3109, the 18 ‘knock’ statute,” id. at 386 n.13, without deciding whether and to what extent the exclusionary 19 rule applied to violations of § 3109. Bound by neither a decision from the Supreme Court nor 20 this Court, we hold that alleged violations of § 3109 do not trigger the e xclusionary rule. 2112 IV. 1 In su

m, a claim

by a defenda nt that fe deral of

ficers v iolated the knock- and-ann ounce ru le 2 under either the Fourth Amendment or 18 U.S.C. § 3109 cannot form the basis for suppression of 3 the evidence obtained in the ensuing searc h. After due consideration of Carvajal’s re maining 4 argume

nts, we fi nd they lack mer it. The jud

gment of convicti on enter

ed by the distri ct court

is 5

ac co rd in gl y A FFI RMED . 6