## F I L E D United States Court of Appeals Tenth Circuit 

### July 21, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. LAWRENCE D. NIELSON, Defendant-Appellee. No. 04-3424

Appeal from the United States District Court

for the District of Kansas (D.C. No. 04-CR-40068-01-RDR)
Patty Merkamp Stemler, Chief, Criminal Appellate Se ction, United States Department of Justice, Washington D.C. (Eric F. Mel gren, United States Attorney, District of Kansas and Gregory G. Hough, Assistant United States Attorney, District of Kansas, with her on the brief s) for Plaintiff-Appellant. Kirk C. Redmond, Federal Public Defender, Topeka, K ansas (David J. Phillips, Federal Public Defender and Ronald E. Wurtz, Assist ant Federal Public Defender for the District of Kansas, Topeka, Kansas on the b rief) for Defendant-Appellee.

Before SEYMOUR , HOLLOWAY, and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.- 2 -

We must decide whether law enforcement officers vio lated Lawrence D. Nielson’s Fourth Amendment rights when they execute d a search warrant that authorized them to enter his home without complying with the Fourth Amendment’s knock and announce requirement. Findin g under the totality of the circumstances that officers were obligated to knockand announce prior to entering, the district court suppressed evidence se ized during the search. Because we take the district court’s view that law enforcem ent officers failed to demonstrate that they had an objectively reasonable suspicion that knocking and announcing would be dangerous or futile, we AFFIRM

. I Law enforcement officials received an anonymous Cri me Stoppers report that a person named Danny Mills or Danny Nielson po ssessed an automatic weapon kept in the loft in his garage and possessednarcotics in a work bench in the garage. Detective Eric Coffman, who is with th e Junction City/Geary County Drug Task Force, determined that Nielson resided atan address matching that given by the tip. Coffman determined that Nielson had previously been arrested in 1999 for possession of a firearm by a convicted felon and had pled no contest to misdemeanor possession of marijuana. Relying onthe tip and the circumstances of the 1999 search, he sought a searc h warrant authorizing police officers to search the residence without complying with the Fourth Amendment’s- 3 -

“knock and announce” requirement. Finding that pro bable cause existed to support the search warrant with a “no-knock” exempt ion, a Geary County district judge signed the warrant granting authority to the police to search the home of Nielson and Caroline Vigil. In executing the warrant the following morning at 4 :45 a.m., police found Nielson, unclad, and Vigil, clad in a bathrobe, in a bedroom. A loaded .45 caliber handgun was found on the floor next to their bed, k nives were on the night stand, and seven other firearms were recovered from a clos et safe, including assault rifles. In the garage they found 25-millimeter mil itary rounds, and an M21 artillery simulator. Detectives also seized small amounts of marijuana and smoking devices found in the garage workbench and b edroom. Both Nielson and Vigil were arrested. In support of the application for a no-knock warrant, Detective Coffman provided an affidavit reciting three facts to estab lish probable cause for the search and to support reasonable suspicion for an exemptio n to the knock and announce requirement. First, police conducted a search of Nielson’s home pursuant to a search warrant four years earlier. When executing the 1999 search, a loaded gun was found on top of a laundry basket outside a mast er bedroom, although both Nielson and Vigil were located between the kitchen and living room. That search uncovered five weapons and marijuana which resultedin Nielson being charged- 4 -

with possession of a firearm by a convicted felon a nd with misdemeanor possession of marijuana. Second, police received aCrime Stoppers anonymous report in August 2003 that Nielson possessed an aut omatic weapon and narcotics which were located in the garage. Third, detectiv es searched Nielson’s garbage which revealed marijuana seeds, and “five round clo th patches” which they believed to have been used to clean firearms. In h is affidavit, Coffman therefore requested “a no-knock search warrant for officer’s safety based on Mr. Nielson’s past history of possessing firearms and the potenti al for violence.” Before the district court, Nielson sought to suppre ss the evidence seized pursuant to the search, arguing that executing the search at 4:45 a.m. without knocking and announcing violated his constitutional rights. At the suppression hearing, Detective Coffman testified that officers were concerned that Nielson and Vigil might attempt to arm themselves if police knocked and announced. Officers determined that the garage where the Crime Stoppers tip said an automatic weapon and marijuana were located was con nected to the house, but they did not know if there was an interior passagew ay between the garage and the house. Regarding the search more than four years p rior, detectives testified that placing a gun on a laundry basket was unusual, and speculated that Nielson had handled the gun shortly before police entered, thou gh Nielson did not resist and did not threaten violence. Moreover, police noted that small amounts of- 5 -

marijuana for personal use are easily destroyed by flushing. Police thus feared both violence and destruction of evidence. After hearing this testimony, the district court co ncluded that it was clear that the officers were obligated to knock and annou nce before entering Nielson’s home. The district court found that the facts pres ented to support reasonable suspicion fell far short of providing reasons to be lieve Nielson would be violent or attempt to destroy evidence when he had exhibite d no prior violent behavior and when he had not attempted to destroy evidence d uring the 1999 search. Finding that Tenth Circuit precedent clearly establ ished that Detective Coffman’s information was insufficient to support a no-knock execution to the search warrant, the district court refused to apply the go od faith doctrine under United
States v. Leon , 468 U.S. 897 (1984), and granted Nielson’s motionto suppress the evidence obtained during the search. The United St ates now appeals.
II On appeal from a motion to suppress, we accept the district court’s factual findings unless they are clearly erroneous. United States v. Moore , 91 F.3d 96, 97 (10th Cir. 1996). When reviewing factual findin gs in the totality of the circumstances, we view the evidence in the light mo st favorable to the prevailing party. Id. Because they are questions of law, we review de n ovo the reasonableness of a search and seizure under the Fo urth Amendment, as well as- 6 -

the district court’s determinations with regard to exigent circumstances. United States v. Dahlman , 13 F.3d 1391, 1398 (10th Cir. 1993). We must begin any examination of Fourth Amendment l imitations on noknock entries with two Supreme Court cases. The fi rst, Wilson v. Arkansas , 514 U.S. 927 (1995), held that the common-law knock andannounce principle forms part of the Fourth Amendment reasonableness inquiry . Tracing deep into the English Common law the history of the principle that a person’s house is “his castle of defence and asylum,” 3 W. Blackstone, Com mentaries 288, the Supreme Court concluded that the prohibition against the so vereign’s breaking down doors without first knocking and announcing was “woven qu ickly into the fabric of early American law.” Id. at 932-933; see also , Miller v. United States , 357 U.S. 301, 313 (1958) (“The requirement of prior notice o f authority and purpose before forcing entry into a home is deeply rooted in our h eritage and should not be given grudging application.”). Not only is it part of ou r common law heritage, but because the reasonableness of a search under the Fo urth Amendment may depend in part on the manner in which the search is execut ed, the Court reasoned: “[W]e have little doubt that the Framers of the Fourth Am endment thought that the method of an officer’s entry into a dwelling was am ong the factors to be considered in assessing the reasonableness of a search or seizure.” Wilson , 514 U.S. at 934. The Court was quick to note, however, that inquiry into the- 7 -

reasonableness of an unannounced entry must be flex ible. Id. at 934 (“The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores c ountervailing law enforcement interests.”). In the second case, Richards v. Wisconsin , 520 U.S. 385, 394 (1997), the Court struck down the Wisconsin Supreme Court’s con clusion that the knock and announce requirement did not apply to felony drug c ases because as a category they all involved a high risk of harm to police off icers and a threat of disposal of drugs. Under the flexible approach announced in Wi lson , the Court explained that “the knock-and-announce requirement could give way under circumstances presenting a threat of physical violence or where p olice officers have reason to believe that evidence would likely be destroyed if advance notice were given.” Id. at 391 (quotation omitted). Before law enforceme nt officers may enter a dwelling without complying with the knock and annou nce requirement, they “must have a reasonable suspicion that knocking andannouncing their presence, under the particular circumstances, would be danger ous or futile, or that it would inhibit the effective investigation of the crime by , for example, allowing the destruction of evidence.” Id. at 394. However, an officer must have an objectively reasonable belief, and may not rely on subjective factors or hunches.
See United States v. Maden , 64 F.3d 1505, 1509 (10th Cir. 1995); United State s- 8 -

v. Stewart , 867 F.2d 581, 584 (10th Cir. 1989) (examining “wh ether the officers, after considering the particularfacts regarding the premises to be searched and the circumstances surrounding the execution of the warrant, could reasonably have decided that an urgent need existed for [a no- knock] entry into the premises”). When reviewing a district court’s suppression rulin g, we must “determine whether the facts and circumstances of the particul ar entry justified dispensing with the knock and announce requirement.” Richards , 520 U.S. at 394. Because “[a] trial judge views the facts of a particular ca se in light of the distinctive features and events of the community,” Ornelas v. U nited States , 517 U.S. 690, 699 (1996), we owe due deference to the district co urt’s evaluation of the factual context in determining whether reasonable suspicionexisted to justify a no-knock entry. Despite our deferential standard of review, the government urges that the totality of the circumstances demonstrates that the district court clearly erred in making its findings. The district court found: [T]here was a prior history of searching defendant’ s residence without violence or the destruction of evidence. When defe ndant’s residence was searched in 1999, the officers knocked and announce d before entering the house. Defendant and Caroline Vigil were awake whe n the search was conducted. Although they did not answer the door, there is no claim that they attempted to destroy evidence or that they thr eatened the safety of the officers. In addition, there is no evidence or ind ication that defendant or his girlfriend had acted violently or threatened vi olence toward officers or others since 1999. The only evidence referred to i n the affidavit to support a no-knock entry for the safety of the officers is the anonymous tip that- 9 -

defendant had automatic weapons in the loft of his garage approximately seven weeks before the search was conducted. Slip op. at 8. Based on these findings, the distri ct court concluded that this case was not close because no facts were alleged in the affidavit or existed in the totality of the circumstances to justify a no-knockentry. We cannot conclude that these factual findings are clearly erroneous. Whether these facts are sufficient to support a det ermination with regard to dangerous or exigent circumstances is a legal quest ion we review de novo. Dahlman , 13 F.3d at 1398. Search and seizure cases involv e, by their very nature, fact-dependent and case-specific inquiries. Thus, our inquiry into whether exigent circumstances exist must rely on analogical reasoning from prior holdings and prior circumstances, as well as a close look atthe particular circumstances law enforcement officers confronted in this case. Following the Supreme Court, our prior holdings have focused on the criminal his tory and past violent behavior of the defendant as well as the conduct under inves tigation with particular emphasis on trafficking in narcotics with possessio n of a firearm. See United States v. Ramirez , 523 U.S. 65, 68-69 (1998) (upholding a no-knock s earch when the defendant had escaped from police custody, havi ng violently attempted to do so on previous occasions, and was believed to be hi ding at a home suspected of having a “stash of guns”); United States v. Gay , 240 F.3d 1222 (10th Cir. 2001) (relying on information that defendant had jumped b ail, had been involved in a- 10 -

prior police shootout, and was armed at all times); United States v. King , 222 F.3d 1280 (10th Cir. 2000) (relying on information that defendant sold drugs, that he belonged to a gang, that he had previously displ ayed a willingness to use his gun, and that another drug dealer might be present in the house with a gun); United States v. Myers , 106 F.3d 936, 940 (10th Cir. 1997) (relying on kn owledge that defendant had been convicted of possession of a firearm and a firebomb, had been involved in the firebombing of a police vehicl e, had prior convictions for burglary, theft and drug trafficking, and was suspe cted of current drug trafficking activity); Dahlman , 13 F.3d at 1398 (relying on information that defe ndant “intended to shoot it out with police rather than b e arrested.”); cf. United States v. Geraldo , 271 F.3d 1112, 1118 (D.C. Cir. 2001) (noting agre ement among circuits “that the presence of a firearm coupled with inform ation such as a suspect’s violent tendencies, criminal record, or specific vi olent threats is enough to create an exigency because the weapon might be used”). For example, in United States v. Colonna , 360 F.3d 1169, 1176 (10th Cir. 2004), we upheld a no-knock execution of a search w arrant in an investigation of narcotics-trafficking when defendant had been arres ted 24 times with charges including assault on a police officer, had been con victed of two felonies, and the affidavit supporting the warrant stated defendant h ad been aggressive with police officers in the past. More recently, our circuit o verturned a district court’s- 11 -

suppression of evidence seized pursuant to a no-kno ck warrant when the defendant possessed firearms, was known to be deali ng methamphetamine, and had been arrested four prior times for domestic battery and battery on a lawenforcement officer which we concluded “indicated avolatile, violent disposition.” United States v. Musa , 401 F.3d 1208, 1214 (10th Cir. 2005). We found further support justifying the no-knock entryin the fact that children had been observed playing in the area. Id. at 1214. None of the elements that have supported dispensin g with the knock and announce requirement in our case law exist in the c urrent factual circumstances. Our inquiry remains flexible, but because the Supre me Court “left to the lower courts the task of determining the circumstances un der which an unannounced entry is reasonable under the Fourth Amendment,” Ramirez , 523 U.S. at 70 (quotation omitted), we ordinarily expect the gover nment to justify a no-knock entry in light of our case law. Although the stand ard for reasonable suspicion is not high, Richards , 520 U.S. at 395, requiring no more than a “partic ularized and objective basis,” Ornelas , 517 U.S. at 696, for believing exigent circumstan ces exist, the police in this case fail to provide such a basis to believe that knocking and announcing their presence would have been dange rous or futile. See Moore , 91 F.3d at 98.- 12 -

We find particularly notable in the present case the fact that law enforcement officers make no claim that Nielson was distributing narcotics or that he had engaged in any prior violent conduct. Detec tive Coffman explicitly testified to the fact that he had no information wh en executing the search warrant that either Vigil or Nielson had engaged in past ac ts of violence. Moreover, the prior search of Nielson’s home resulted in no viole nce, and despite his silent refusal to answer the door, he apparently cooperate d after the police entered. Although the police had evidence that a firearm was present, that fact by itself does not demonstrate an increased risk beyond that normally faced by law enforcement officers, especially where, as here, th eir information was that a firearm was in a loft in the garage, and they had n o information leading them to believe that Nielson had interior access to the gar age. Further reasons to believe that knocking and announcing police presence would be dangerous or futile, such as counter-surveillance activities, are also absentin this case. See United States v. Cline , 349 F.3d 1276, 1289-90 (10th Cir. 2003). Withouta prior history of violence in interacting with police, without a reco rd of prior convictions that indicate a predilection towards violence, without asuspicion that defendant was engaged in narcotics trafficking, or without any ot her exigent circumstances such as children playing nearby or evidence of counter-s urveillance activities, we1 We find this statement troubling in light of our p rior observations that

“[o]ur concern is heightened because this court ‘se ems to be reviewing the actions of Kansas police executing ‘knock and announce’ warrants with some frequency.’” United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir. 1999) (quoting United States v. McCloud , 127 F.3d 1284, 1288 n.3 (10th Cir. 1997)). - 13 - cannot conclude that the police had sufficient just ification in this case for a noknock warrant. Law enforcement officers may have perceived certain additional risks caused by the likelihood that Nielson possessed gun s, at least in the garage, to which he may have had access. However, perception of an increased risk does not by itself establish the objective, reasonable s uspicion that exigent circumstances exist. In response to the court’s ow n questions, Detective Coffman testified that the belief that firearms are presentis sufficient to justify a no-knock search. 1 Our precedent has made clear that the “mere state ment that firearms are present, standing alone, is insufficient,” Moore , 91 F.3d at 96; Jenkins , 175 F.3d at 1214 (“[T]he mere likelihood that drugs or weapo ns will be found in the searched premises alone will [not] support the reas onableness of a given waiting period.”). To hold otherwise would risk running af oul of the Supreme Court’s admonishment against “creating exceptions to the kn ock-and-announce rule based on the ‘culture’ surrounding a general category of criminal behavior.” Richards , 520 U.S. at 392. Such a blanket approach was clear ly rejected by the Court in Richards in favor of a case-by-case analysis, and we have s imilarly concluded that2 “[I]f the knock and announce requirement is to rem ain the rule rather than

the exception, we must still be able to tell the di fference between the ordinary risks to officer safety in serving search warrants and the risks to officer safety in instances in which a no-knock entry is justified.” Musa , 401 F.3d at 1219 (Henry, J. dissenting). - 14 - to justify no-knock entries based on claims that of ficers executing narcotics search warrants always have increased risks would “ expand the exigent circumstances exception to such an extent [that it] would completely swallow the rule.” Moore , 91 F.3d at 98. Although the potential presence of loaded weapons m ay heighten the risk to law enforcement officers, where no other evidence o f potential violence or danger exists, we have made clear that such circumstances do not support reasonable suspicion that exigent circumstances justify dispen sing with the requirement that police knock and announce their presence when execu ting a search warrant. 2 The district court properly concluded that the police f ailed to demonstrate reasonable suspicion that in this particular circumstance knoc king and announcing their presence would be dangerous or futile or would leadto the destruction of evidence.
III Nielson’s Fourth Amendment rights were violated whe n the police failed to comply with their constitutional duty to knock and announce their presence. Nonetheless, the government argues that the officer s’ actions were conducted in- 15 -

good faith. Because the remedy courts have fashion ed for Fourth Amendment violations is harsh, requiring the exclusion of pot entially reliable evidence of wrongdoing, we conduct a separate inquiry as to whe ther the exclusionary sanction is appropriate. Designed to provide a det errent to police misconduct, the exclusionary rule is not mandated by the Fourth Ame ndment. See Leon , 468 U.S. at 906-907. Thus, the Court has created a good-fai th exception to imposition of the exclusionary rule when law enforcement officers ’ reliance on a magistrate’s warrant is objectively reasonable. Id. at 922-24. Although the analysis in Leonspecifically addressed whether the exclusionary sanction should be applied to warrants lacking probable cause to justify a search, the government argues that good f aith excuses its failure to comply with the Fourth Amendment knock and announce requirement. See, e.g. , United States v. Tisdale , 195 F.3d 70, 73 (2d Cir. 1999) (holding on Leongoodfaith grounds that defendant was not entitled to suppression of evidence seized pursuant to a no-knock entry). Finding that the wa rrant application was so lacking in a particularized and objectively reasona ble suspicion that knocking and announcing would be dangerous or futile, the distri ct court denied the government’s request to apply the good-faith except ion to its Fourth Amendment violation. We review the district court’s decision whether to apply the Leon- 16 -

good-faith exception de novo. United States v. Ric cardi , 405 F.3d 852, 860 (10th Cir. 2005). In determining whether to suppress evidence “our go od-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search wa s illegal despite the magistrate's authorization.” Leon , 468 U.S. at 923, n.23. In Leonthe Court enumerated four general situations in which law enf orcement officers who relied on an invalid warrant could not benefit from the go od faith exception, one of which is relevant to the present case. The Court p rovided that “a warrant may be so facially deficient . . . that the executing offi cers cannot reasonably presume it to be valid.” Id. at 923. Specifically regarding no-knock warrants, the Supreme Court has provided that “[w]hen a warrant applicantgives reasonable grounds to expect futility or to suspect that one or another s uch exigency already exists or will arise instantly upon knocking, a magistrate ju dge is acting within the Constitution to authorize a ‘no-knock’ entry.” Uni ted States v. Banks , 540 U.S. 31, 36 (2003). Thus, if the warrant in the presentcase is so facially deficient with regard to whether reasonable suspicion that knockin g and announcing police presence would be dangerous or futile, then the goo d-faith exception may not be applied.3 It does not appear that Kansas provides statutory approval for no-knock

warrants. See Estate of Fuentes v. Thomas , 107 F. Supp. 2d 1288, 1298 (D. Kan. 2000). - 17 - In response to questions from the court below, Dete ctive Coffman represented that the mere belief that firearms are present is sufficient to justify a warrant from a state judge excusing compliance with the Fourth Amendment’s knock and announce requirement. 3 Although “[t]he practice of allowing magistrates to issue no-knock warrants seems entire ly reasonable when sufficient cause to do so can be demonstrated ahead of time,” Richards , 520 U.S. at 396 n.7, Detective Coffman’s affidavit fails to allege that sufficient cause exists in this case to support a no-knock execution of the search warrant. Our holdings have established that evidence of the presence of firear ms, without more, is insufficient to justify a no-knock entry, and so, necessarily th e mere belief that firearms are present would be insufficient as well. See Moore , 91 F.3d at 98 (“[T]he mere fact that firearms were present was insufficient to demo nstrate exigent circumstances.”); Jenkins , 175 F.3d at 1214. Officers must demonstrate that they have an objecti vely reasonable concern that exigent circumstances exist. See Stewart , 867 F.2d at 584-85 (suppressing evidence because no-knock entry not supported by ob jectively reasonable belief that exigent circumstances existed); see also , United States v. Bates , 84 F.3d 790 (6th Cir. 1996) (affirming the district court’s sup pression of evidence seized in4 We find instructive the Eighth Circuit’s reasoning that the “good-faith

exception is perfectly suited for cases . . . when the judge’s decision was borderline.” United States v. Scroggins , 361 F.3d 1075, 1084 (8th Cir. 2004). In that case, a “borderline” decision to authorize a n o-knock entry was made pursuant to an affidavit that alleged that “the def endant was part of a large-scale drug-trafficking organization, that he had prior ar rests for narcotics and weapons, that known drug dealers repeatedly visited the prem ises, and that officers had found a round from an assault rifle in his trash.” Id. By comparison to these “borderline” averments, the district court in the p resent case could quite reasonably state, as it did, “we do not believe thi s is a close call.” - 18 - violation of the knock and announce requirement bec ause belief that defendant was likely to be violent was not objectively reason able). The warrant in this case is lacking in a sufficient indicia of reasonable su spicion that exigent circumstances exist as to Nielson’s “potential forviolence” or as to the threat posed by his “past history of possessing firearms.” 4 As we have already discussed, the affidavit in support of the no-knocksearch warrant presented facts that established past possession of firearms and sm all amounts of marijuana, and present evidence of the same. Officers failed to p resent any evidence of past violent behavior that would indicate a potential fo r present violence or futility, or any other evidence that would provide a reason to b elieve Nielson or Vigil would be violent. In light of our clear precedent provid ing that mere allegations of the presence of a firearm are insufficient to support ano-knock entry, we cannot say that law enforcement officers’ reliance on the stat e judge’s authorization was- 19 -

objectively reasonable. Therefore we conclude thatlaw enforcement officers are not entitled to a good-faith exception to suppressi on of evidence in this case.
IV Because we agree with the district court that the c ircumstances presented in this case did not excuse law enforcement officers f rom complying with the Fourth Amendment’s knock and announce requirement, we AFFIRM

.