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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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellant 

### , VERSUS


### P HILLIP 

### B RUNO 

### ; C HRISTOPHER 

### J EROME 

### C ALDWELL 

### , Defendants-Appellee 

### s.

_________________________ Appeal from the United States District Court fo r the Southern District of Texas

______________________________

Before G ARWOOD , S MITH , and D EM OSS , Circuit Judges.
J ERRY E. S MITH , Circuit Judge:
The district court granted Phillip Bruno and Christophe r Caldwell’s joint motion to suppress evidence fo und pursuant to a search th at t he court fo und to have vio lat ed the knock

and-announce rule. Aft er this ruling, the Supreme Court held in Hudson v. Michigan , 126 S. Ct. 2159, 2165 (2006), th at the exclusionary rule is inapplicable to Fourth Amendment knock-and-announce vio lat io ns. We consider whether, in light of Hudson , suppression is the remedy f or a v io lat io n of 18 U.S.C. § 3109’s knock-and-announce requirement. Holding it is no t, we reverse and remand.

I. Drug Enforcement Agency (“DEA”) agents and members of the League Cit y SWAT Team arrived at Caldwell’ s residence early one mo rning to execute a search warrant. One of the SWAT team members knocked lo udly on Caldwell’s front door and announced, “Police,2

search warrant.” Abo ut ten seconds after this announcement, two of

ficers at the master bedroom perf

ormed a “rake-and-break” maneuver: One broke the window and cleaned it out, and the other point ed a lo ng gun wit h a light on it th

rough the window and inst ructed, “Police. Don’t move. Search warrant. Put yo ur hands where I can see t hem.” Caldwell was in bed wit h his wife and appeared to have been awakened recently. Approximately 15 to 20 seconds aft er office r s broke the bedroom window, the frontdoor team tossed a concussion grenade toward the garage as a distraction in case other adults were present, and then broke th rough the front door. Bruno tried to f

lee from the garage, but DEA agents caught and arrested him.
Officers recovered a small, lo aded handgun from above the headboard on the side of the bed where Caldwell was sleeping, and a lo aded shotgun from the master bedroom shower stall. A lat er search unco vered narcotics and seven other weapons.
C aldwell and Bruno were charged in an eleven-count indict ment wit h various nar cotics- and fir earms-re l ated of fenses 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 th at f ederal officers did not knock and announce their identity and purpose when executing the s earch warrant, in violation of the Fourth Amendment and 18 U.S.C. § 3109. The di strict court g ranted the mo tion, and the government ap
peals.
II. When considering th e grant or denial of a mo tion to suppress evidence, we review the district court’s factual findings fo r clear error and it s legal con clusions de novo . U nited States v. Gonzalez , 328 F.3d 755, 758 (5th Cir. 2003); United States v. Jordan , 232 F.3d 447, 448 (5th Cir. 2000). The com mo n law p rinciple “t hat law enforcement of ficers mu s t announce their presence and provide residents an opportunity to open the door” has been part of federal statutory law since 1917 and is codified at 18 U.S.C. § 3109. 1 H udson , 126 S. Ct. at 2162. In H

udson , the Court held th at suppression is not the appropriate remedy for a vio lat io n of the constitutional knock-and-announce requirement, but the Court did not address whether suppression is the correct rem

edy for violations of § 3109. Id. at 2165.
Hudson ’s reasonin g, h owever, entails this result. The District of Columbia Circuit has explained persuasively why: [E]ach of the reasons Hudson gave fo r not applying the exclusionary rule to kn ockand-announce vio lat io ns of the Fourth Amendment applies equally to vio lat io ns of § 3109. Among those reasons are th at the knock-and-announce requirement does not protect an individual’s int erest in shielding “potenti al evidence from the government’s eyes,” Hudson, 126 S. Ct. at 2165; that“imposing th[e] massive remedy” of suppression “fo r a knock-and-announce vio lati on would generate a constant flood o f

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 au thority and pu r pose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.3

alleged failures to observe the rule,” i d. at 2165-66; that questions about whether the pol ice waited lo ng enough before entering wo uld be “difficult for the trial court to determ ine and even mo re difficult fo r an appellate court to review,” id. at 2166; th at any deterrent value from suppressing evidence in these cases would not be “worth a lo t ,” i d. ; th at civil damage actions would still provide som

e deterrence, id. at 2166-68; and th at “[a]nother development over the past half-century th at deters civil-right s vio lat io ns is the increasing profess io nal ism o f police forces, including a new emphasis on int ernal pol ice 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 Nint h Circuit has also held, in an unpublished opinio n, th at “[s]uppression of evidence is not an available remedy fo r vio lat io ns of the ‘knock and announce’ rule under 18 U.S.C. § 3109.” U

nite d States v. Ramirez , 196 Fed. Appx. 538, 539 (9th Cir. 2006) (citing Hudson , 126 S. Ct. at 2166). The Fi rst Circuit has also confronted “whether Hudson should be extended to a knock and announce vio lat io n com

mit ted in the course of executing an arrest warrant” and has concluded “t hat the Hudson Court’s reasoning mandates such an e xt ension.” U

nited States v. Pelletier , 4 6 9 F.3d 194, 196 (1st Cir. 2006).
Caldwell and Bruno contend th at two decisio ns th at Hudson did not explicit ly ove rrule continue to require suppression fo r a vio lat io n 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’s inst ruction th at “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in so me other line of d e cisio ns, the Court of Appeals should fo llo w the case which directly control s, leaving to this Court the prerogative of overrul ing it s own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, I n c. , 490 U.S. 477, 484 (1989).
Miller and Sabbath are not d ir ect precedents, s o th ey do not preclude us from concluding th at suppression is not the proper remedy fo r a § 3109 vio lation. In neither did the Court analyze the precise question Hudson squarely addressed: the remed y for a knockand-announce vio lat io n. Rather, both focused on whether a knoc k-an d-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 fo rce. In Miller , 357 U.S. at 305, the parties apparently conceded the evidence’s inadmissibilit y if the of

ficers had unlawfully failed to announce their authority and purpose (noting the peti

tioner’s th ree contentions on appeal and stating, “If any o ne of these contentions prevails, it is agreed th at the marked mo ney was inadmissible in evidence.”).
In summary, Hudson com pels th e conclusion that suppression is not the remedy for a vio lat io n of §3109, and Miller and Sabbath do not prevent it

. Even if the conduct in this case vio lat ed th at statute, 2 suppression is not available as a remedy for Caldwell and Bruno.
The suppression order is REVERSED, and this mat ter is REMANDED fo r further appropri ate proceedings.

2 Because of our conclusion abou t the remedy of suppression, we do not reach whether a § 3109 violation occurred in this case.