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 Section, United States

Department of Justice, Washington D.C. (Eric F. Melgren, United States

Attorney, District of Kansas and Gregory G. Hough, Assistant United States

Attorney, District of Kansas, with her on the briefs) for Plaintiff-Appellant.

Kirk C. Redmond, Federal Public Defender, Topeka, Kansas (David J. Phillips,

Federal Public Defender and Ronald E. Wurtz, Assistant Federal Public Defender

for the District of Kansas, Topeka, Kansas on the brief) for Defendant-Appellee.

Before SEYMOUR, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
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We must decide whether law enforcement officers violated Lawrence D.

Nielson’s Fourth Amendment rights when they executed a search warrant that

authorized them to enter his home without complying with the Fourth

Amendment’s knock and announce requirement. Finding under the totality of the

circumstances that officers were obligated to knock and announce prior to

entering, the district court suppressed evidence seized during the search. Because

we take the district court’s view that law enforcement 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 Crime Stoppers report

that a person named Danny Mills or Danny Nielson possessed an automatic

weapon kept in the loft in his garage and possessed narcotics in a work bench in

the garage. Detective Eric Coffman, who is with the Junction City/Geary County

Drug Task Force, determined that Nielson resided at an 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 on the tip and the

circumstances of the 1999 search, he sought a search warrant authorizing police

officers to search the residence without complying with the Fourth Amendment’s
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“knock and announce” requirement. Finding that probable cause existed to

support the search warrant with a “no-knock” exemption, 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, knives were on the night stand,

and seven other firearms were recovered from a closet safe, including assault

rifles. In the garage they found 25-millimeter military rounds, and an M21

artillery simulator. Detectives also seized small amounts of marijuana and

smoking devices found in the garage workbench and bedroom. 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 establish probable cause for the search

and to support reasonable suspicion for an exemption 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 master bedroom, although both

Nielson and Vigil were located between the kitchen and living room. That search

uncovered five weapons and marijuana which resulted in Nielson being charged
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with possession of a firearm by a convicted felon and with misdemeanor

possession of marijuana. Second, police received a Crime Stoppers anonymous

report in August 2003 that Nielson possessed an automatic weapon and narcotics

which were located in the garage. Third, detectives searched Nielson’s garbage

which revealed marijuana seeds, and “five round cloth patches” which they

believed to have been used to clean firearms. In his 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 potential for violence.” 

Before the district court, Nielson sought to suppress 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 connected to the house, but

they did not know if there was an interior passageway between the garage and the

house. Regarding the search more than four years prior, detectives testified that

placing a gun on a laundry basket was unusual, and speculated that Nielson had

handled the gun shortly before police entered, though Nielson did not resist and

did not threaten violence. Moreover, police noted that small amounts of
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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 concluded that it was clear

that the officers were obligated to knock and announce before entering Nielson’s

home. The district court found that the facts presented to support reasonable

suspicion fell far short of providing reasons to believe Nielson would be violent

or attempt to destroy evidence when he had exhibited no prior violent behavior

and when he had not attempted to destroy evidence during the 1999 search. 

Finding that Tenth Circuit precedent clearly established that Detective Coffman’s

information was insufficient to support a no-knock execution to the search

warrant, the district court refused to apply the good faith doctrine under United

States v. Leon, 468 U.S. 897 (1984), and granted Nielson’s motion to suppress the

evidence obtained during the search. The United States 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 findings in the totality of the

circumstances, we view the evidence in the light most favorable to the prevailing

party. Id. Because they are questions of law, we review de novo the

reasonableness of a search and seizure under the Fourth Amendment, as well as
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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 limitations on noknock entries with two Supreme Court cases. The first, Wilson v. Arkansas, 514

U.S. 927 (1995), held that the common-law knock and announce 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, Commentaries 288, the Supreme

Court concluded that the prohibition against the sovereign’s breaking down doors

without first knocking and announcing was “woven quickly 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 of authority and purpose before

forcing entry into a home is deeply rooted in our heritage and should not be given

grudging application.”). Not only is it part of our common law heritage, but

because the reasonableness of a search under the Fourth Amendment may depend

in part on the manner in which the search is executed, the Court reasoned: “[W]e

have little doubt that the Framers of the Fourth Amendment thought that the

method of an officer’s entry into a dwelling was among 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
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reasonableness of an unannounced entry must be flexible. Id. at 934 (“The Fourth

Amendment’s flexible requirement of reasonableness should not be read to

mandate a rigid rule of announcement that ignores countervailing 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 conclusion that the knock and

announce requirement did not apply to felony drug cases because as a category

they all involved a high risk of harm to police officers and a threat of disposal of

drugs. Under the flexible approach announced in Wilson, the Court explained

that “the knock-and-announce requirement could give way under circumstances

presenting a threat of physical violence or where police officers have reason to

believe that evidence would likely be destroyed if advance notice were given.” 

Id. at 391 (quotation omitted). Before law enforcement officers may enter a

dwelling without complying with the knock and announce requirement, they

“must have a reasonable suspicion that knocking and announcing their presence,

under the particular circumstances, would be dangerous 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 States
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v. Stewart, 867 F.2d 581, 584 (10th Cir. 1989) (examining “whether the officers,

after considering the particular facts 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 ruling, we must “determine

whether the facts and circumstances of the particular 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 case in light of the distinctive

features and events of the community,” Ornelas v. United States, 517 U.S. 690,

699 (1996), we owe due deference to the district court’s evaluation of the factual

context in determining whether reasonable suspicion existed 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 defendant’s residence was

searched in 1999, the officers knocked and announced before entering the

house. Defendant and Caroline Vigil were awake when the search was

conducted. Although they did not answer the door, there is no claim that

they attempted to destroy evidence or that they threatened the safety of the

officers. In addition, there is no evidence or indication that defendant or

his girlfriend had acted violently or threatened violence toward officers or

others since 1999. The only evidence referred to in the affidavit to support

a no-knock entry for the safety of the officers is the anonymous tip that
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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 district 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-knock entry. We cannot conclude that

these factual findings are clearly erroneous. 

Whether these facts are sufficient to support a determination with regard to

dangerous or exigent circumstances is a legal question we review de novo. 

Dahlman, 13 F.3d at 1398. Search and seizure cases involve, 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 at the particular circumstances

law enforcement officers confronted in this case. Following the Supreme Court,

our prior holdings have focused on the criminal history and past violent behavior

of the defendant as well as the conduct under investigation with particular

emphasis on trafficking in narcotics with possession of a firearm. See United

States v. Ramirez, 523 U.S. 65, 68-69 (1998) (upholding a no-knock search when

the defendant had escaped from police custody, having violently attempted to do

so on previous occasions, and was believed to be hiding 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 bail, had been involved in a
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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 displayed 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 knowledge

that defendant had been convicted of possession of a firearm and a firebomb, had

been involved in the firebombing of a police vehicle, had prior convictions for

burglary, theft and drug trafficking, and was suspected of current drug trafficking

activity); Dahlman, 13 F.3d at 1398 (relying on information that defendant

“intended to shoot it out with police rather than be arrested.”); cf. United States v.

Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001) (noting agreement among circuits

“that the presence of a firearm coupled with information such as a suspect’s

violent tendencies, criminal record, or specific violent 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 warrant in an investigation of

narcotics-trafficking when defendant had been arrested 24 times with charges

including assault on a police officer, had been convicted of two felonies, and the

affidavit supporting the warrant stated defendant had been aggressive with police

officers in the past. More recently, our circuit overturned a district court’s
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suppression of evidence seized pursuant to a no-knock warrant when the

defendant possessed firearms, was known to be dealing methamphetamine, and

had been arrested four prior times for domestic battery and battery on a lawenforcement officer which we concluded “indicated a volatile, violent

disposition.” United States v. Musa, 401 F.3d 1208, 1214 (10th Cir. 2005). We

found further support justifying the no-knock entry in the fact that children had

been observed playing in the area. Id. at 1214. 

 None of the elements that have supported dispensing with the knock and

announce requirement in our case law exist in the current factual circumstances. 

Our inquiry remains flexible, but because the Supreme Court “left to the lower

courts the task of determining the circumstances under which an unannounced

entry is reasonable under the Fourth Amendment,” Ramirez, 523 U.S. at 70

(quotation omitted), we ordinarily expect the government to justify a no-knock

entry in light of our case law. Although the standard for reasonable suspicion is

not high, Richards, 520 U.S. at 395, requiring no more than a “particularized and

objective basis,” Ornelas, 517 U.S. at 696, for believing exigent circumstances

exist, the police in this case fail to provide such a basis to believe that knocking

and announcing their presence would have been dangerous or futile. See Moore,

91 F.3d at 98.
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 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. Detective Coffman explicitly

testified to the fact that he had no information when executing the search warrant

that either Vigil or Nielson had engaged in past acts of violence. Moreover, the

prior search of Nielson’s home resulted in no violence, and despite his silent

refusal to answer the door, he apparently cooperated 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, their information was that a

firearm was in a loft in the garage, and they had no information leading them to

believe that Nielson had interior access to the garage. Further reasons to believe

that knocking and announcing police presence would be dangerous or futile, such

as counter-surveillance activities, are also absent in this case. See United States

v. Cline, 349 F.3d 1276, 1289-90 (10th Cir. 2003). Without a prior history of

violence in interacting with police, without a record of prior convictions that

indicate a predilection towards violence, without a suspicion that defendant was

engaged in narcotics trafficking, or without any other exigent circumstances such

as children playing nearby or evidence of counter-surveillance activities, we
1

 We find this statement troubling in light of our prior observations that

“[o]ur concern is heightened because this court ‘seems 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)). 

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cannot conclude that the police had sufficient justification in this case for a noknock warrant. 

Law enforcement officers may have perceived certain additional risks

caused by the likelihood that Nielson possessed guns, 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 suspicion that exigent

circumstances exist. In response to the court’s own questions, Detective Coffman

testified that the belief that firearms are present is sufficient to justify a no-knock

search.1 Our precedent has made clear that the “mere statement 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 weapons will be found in the

searched premises alone will [not] support the reasonableness of a given waiting

period.”). To hold otherwise would risk running afoul of the Supreme Court’s

admonishment against “creating exceptions to the knock-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 clearly rejected by the Court in

Richards in favor of a case-by-case analysis, and we have similarly concluded that
2

 “[I]f the knock and announce requirement is to remain the rule rather than

the exception, we must still be able to tell the difference 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). 

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to justify no-knock entries based on claims that officers 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 may heighten the risk to

law enforcement officers, where no other evidence of potential violence or danger

exists, we have made clear that such circumstances do not support reasonable

suspicion that exigent circumstances justify dispensing with the requirement that

police knock and announce their presence when executing a search warrant.2

 The

district court properly concluded that the police failed to demonstrate reasonable

suspicion that in this particular circumstance knocking and announcing their

presence would be dangerous or futile or would lead to the destruction of

evidence.

III

Nielson’s Fourth Amendment rights were violated when the police failed to

comply with their constitutional duty to knock and announce their presence. 

Nonetheless, the government argues that the officers’ actions were conducted in
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good faith. Because the remedy courts have fashioned for Fourth Amendment

violations is harsh, requiring the exclusion of potentially reliable evidence of

wrongdoing, we conduct a separate inquiry as to whether the exclusionary

sanction is appropriate. Designed to provide a deterrent to police misconduct, the

exclusionary rule is not mandated by the Fourth Amendment. See Leon, 468 U.S.

at 906-907. Thus, the Court has created a good-faith 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 Leon specifically addressed whether the

exclusionary sanction should be applied to warrants lacking probable cause to

justify a search, the government argues that good faith 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 Leon goodfaith grounds that defendant was not entitled to suppression of evidence seized

pursuant to a no-knock entry). Finding that the warrant application was so

lacking in a particularized and objectively reasonable suspicion that knocking and

announcing would be dangerous or futile, the district court denied the

government’s request to apply the good-faith exception to its Fourth Amendment

violation. We review the district court’s decision whether to apply the Leon
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good-faith exception de novo. United States v. Riccardi, 405 F.3d 852, 860 (10th

Cir. 2005). 

In determining whether to suppress evidence “our good-faith inquiry is

confined to the objectively ascertainable question whether a reasonably well

trained officer would have known that the search was illegal despite the

magistrate's authorization.” Leon, 468 U.S. at 923, n.23. In Leon the Court

enumerated four general situations in which law enforcement officers who relied

on an invalid warrant could not benefit from the good faith exception, one of

which is relevant to the present case. The Court provided that “a warrant may be

so facially deficient . . . that the executing officers 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 applicant gives reasonable grounds to

expect futility or to suspect that one or another such exigency already exists or

will arise instantly upon knocking, a magistrate judge is acting within the

Constitution to authorize a ‘no-knock’ entry.” United States v. Banks, 540 U.S.

31, 36 (2003). Thus, if the warrant in the present case is so facially deficient with

regard to whether reasonable suspicion that knocking and announcing police

presence would be dangerous or futile, then the good-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). 

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In response to questions from the court below, Detective 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 entirely 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 firearms, without more, is insufficient

to justify a no-knock entry, and so, necessarily the 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 demonstrate exigent

circumstances.”); Jenkins, 175 F.3d at 1214. 

Officers must demonstrate that they have an objectively reasonable concern

that exigent circumstances exist. See Stewart, 867 F.2d at 584-85 (suppressing

evidence because no-knock entry not supported by objectively reasonable belief

that exigent circumstances existed); see also, United States v. Bates, 84 F.3d 790

(6th Cir. 1996) (affirming the district court’s suppression of evidence seized in
4

 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 no-knock entry was made

pursuant to an affidavit that alleged that “the defendant was part of a large-scale

drug-trafficking organization, that he had prior arrests for narcotics and weapons,

that known drug dealers repeatedly visited the premises, 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 present case could quite

reasonably state, as it did, “we do not believe this is a close call.”

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violation of the knock and announce requirement because belief that defendant

was likely to be violent was not objectively reasonable). The warrant in this case

is lacking in a sufficient indicia of reasonable suspicion that exigent

circumstances exist as to Nielson’s “potential for violence” 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-knock search warrant presented facts

that established past possession of firearms and small amounts of marijuana, and

present evidence of the same. Officers failed to present any evidence of past

violent behavior that would indicate a potential for present violence or futility, or

any other evidence that would provide a reason to believe Nielson or Vigil would

be violent. In light of our clear precedent providing that mere allegations of the

presence of a firearm are insufficient to support a no-knock entry, we cannot say

that law enforcement officers’ reliance on the state judge’s authorization was
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objectively reasonable. Therefore we conclude that law enforcement officers are

not entitled to a good-faith exception to suppression of evidence in this case. 

IV

Because we agree with the district court that the circumstances presented in

this case did not excuse law enforcement officers from complying with the Fourth

Amendment’s knock and announce requirement, we AFFIRM.