United States Court of Appeals

Fifth Circuit

FILED

May 18, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 05-41763

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UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

PHILLIP BRUNO; CHRISTOPHER JEROME CALDWELL,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________

Before GARWOOD, SMITH, and DEMOSS, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The district court granted PhillipBruno and

Christopher Caldwell’s joint motion to suppress evidence found pursuant to a search that

the court found to have violated the knockand-announce rule. After this ruling, the Supreme Court held in Hudson v. Michigan, 126

S. Ct. 2159, 2165 (2006), that the exclusionary rule is inapplicable to Fourth Amendment

knock-and-announce violations. We consider

whether, in light of Hudson, suppression isthe

remedy for a violation of 18 U.S.C. § 3109’s

knock-and-announce requirement. Holding it

is not, we reverse and remand.

I.

DrugEnforcement Agency (“DEA”) agents

and members of the League City SWAT Team

arrived at Caldwell’s residence early one

morning to execute a search warrant. One of

the SWAT team members knocked loudly on

Caldwell’sfront door and announced, “Police,
2

search warrant.” About ten seconds after this

announcement, two officers at the master bedroom performed a “rake-and-break” maneuver: One broke the window and cleaned it

out, and the other pointed a long gun with a

light on it through the window and instructed,

“Police. Don’t move. Search warrant. Put

your hands where I can see them.” Caldwell

was in bed with his wife and appeared to have

been awakened recently. 

Approximately 15 to 20 seconds after officers broke the bedroom window, the frontdoorteamtossed a concussiongrenade toward

the garage as a distraction in case other adults

were present, and then broke through the front

door. Bruno tried to flee from the garage, but

DEA agents caught and arrested him.

Officersrecovered a small, loaded handgun

from above the headboard on the side of the

bed where Caldwellwassleeping, and a loaded

shotgun from the master bedroom shower

stall. A later search uncovered narcotics and

seven other weapons. 

Caldwell and Bruno were charged in an

eleven-count indictment with various narcotics- and firearms-related offenses under 18

U.S.C. §§ 2, 922, and 924 and 21 U.S.C.

§§ 841 and 846. They filed a motion to suppress the evidence, claiming that federal officers did not knock and announce their identity

and purpose when executing the search warrant, in violation of the Fourth Amendment

and 18 U.S.C. § 3109. The district court

granted the motion, and the government appeals. 

II.

When considering the grant or denial of a

motion to suppress evidence, we review the

district court’s factual findings for clear error

and its legal conclusions de novo. United

States v. Gonzalez, 328 F.3d 755, 758 (5th

Cir. 2003); United States v. Jordan, 232 F.3d

447, 448 (5th Cir. 2000). The common law

principle “that law enforcement officers must

announce their presence and provide residents

an opportunity to open the door” has been part

of federalstatutory law since 1917 and is codified at 18 U.S.C. § 3109.1 Hudson, 126 S.

Ct. at 2162. In Hudson, the Court held that

suppression is not the appropriate remedy for

a violation ofthe constitutional knock-and-announce requirement, but the Court did not address whether suppression is the correct remedy for violations of § 3109. Id. at 2165.

Hudson’s reasoning, however, entails this

result. The District of Columbia Circuit has

explained persuasively why:

[E]ach of the reasons Hudson gave for not

applying the exclusionary rule to knockand-announce violations of the Fourth

Amendment applies equally to violations of

§ 3109. Among those reasons are that the

knock-and-announce requirement does not

protect an individual’s interest in shielding

“potential evidence from the government’s

eyes,” Hudson, 126 S. Ct. at 2165; that

“imposing th[e] massive remedy” of suppression “for a knock-and-announce violation would generate a constant flood of

1 Title 18 U.S.C. § 3109, “Breaking doors or

windows for entry or exit,” states the following:

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.
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alleged failures to observe the rule,” id. at

2165-66; that questions about whether the

police waited long enough before entering

would be “difficult for the trial court to

determine and even more difficult for an

appellate court to review,” id. at 2166; that

any deterrent value from suppressing evidence in these cases would not be “worth a

lot,” id.; that civil damage actions would

still provide some deterrence, id. at

2166-68; and that “[a]nother development

over the past half-century that deters

civil-rights violations is the increasing professionalism of police forces, including a

new emphasis on internalpolice discipline,”

id. at 2168.

United States v. Southerland, 466 F.3d 1083,

1084 (D.C. Cir. 2006), cert. denied, 127 S. Ct.

1361 (2007).

The Ninth Circuit has also held, in an unpublished opinion, that “[s]uppression of evidence is not an available remedy for violations

of the ‘knock and announce’ rule under 18

U.S.C. § 3109.” United States v. Ramirez,

196 Fed. Appx. 538, 539 (9th Cir. 2006) (citing Hudson, 126 S. Ct. at 2166). The First

Circuit has also confronted “whether Hudson

should be extended to a knock and announce

violation committed in the course of executing

an arrest warrant” and has concluded “that the

Hudson Court’s reasoning mandates such an

extension.” United States v. Pelletier, 469

F.3d 194, 196 (1st Cir. 2006).

Caldwell and Bruno contend that two decisions that Hudson did not explicitly overrule

continue to require suppression for a violation

of § 3109: Miller v. United States, 357 U.S.

301 (1958), and Sabbath v. United States, 391

U.S. 585 (1968). The defendants point us to

the Court’sinstruction that “[i]f a precedent of

this Court has direct application in a case, yet

appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals

should follow the case which directly controls,

leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989). 

Miller and Sabbath are not direct precedents, so they do not preclude us from concluding that suppression is not the proper

remedy for a § 3109 violation. In neither did

the Court analyze the precise question Hudson

squarely addressed: the remedy for a knockand-announce violation. Rather, both focused

on whether a knock-and-announce violation

had occurred. In Sabbath, 391 U.S. at 589,

the Court discussed whether the phrase “break

open” as used in § 3109 requires the use of

force. In Miller, 357 U.S. at 305, the parties apparently conceded the evidence’s inadmissibility if the officers had unlawfully failed

to announce their authority and purpose (noting the petitioner’sthree contentions onappeal

and stating, “If any one of these contentions

prevails, it is agreed that the marked money

was inadmissible in evidence.”).

In summary, Hudson compels the conclusion that suppression is not the remedy for a

violation of §3109, and Miller and Sabbath do

not prevent it. Even if the conduct in this case

violated that statute,2suppression is not available as a remedy for Caldwell and Bruno. 

The suppression order is REVERSED, and

this matter is REMANDED for further appropriate proceedings.

2 Because of our conclusion about the remedy

of suppression, we do not reach whether a § 3109

violation occurred in this case.