1The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3654

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Santos Garcia Tavares, *

*

Defendant - Appellant. *

___________

Submitted: February 15, 2000

Filed: August 31, 2000

___________

Before BEAM and JOHN R. GIBSON, Circuit Judges, and PRATT,1 District Judge.

___________

JOHN R. GIBSON, Circuit Judge.

Santos Garcia Tavares conditionally pled guilty to possessing a firearm in

violation of 18 U.S.C. § 922(g) (1994 & Supp. IV 1998), reserving the right to appeal

the district court’s denial of his motion to suppress evidence obtained in connection

with a search of his house by state and federal authorities on March 6, 1998. Because

the searching officers violated 18 U.S.C. § 3109 (1994), we reverse and instruct the

district court to vacate Tavares’s guilty plea and grant his motion to suppress.
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On the morning of March 6, 1998, Sergeant Michael Drews of the St. Paul

Police Department contacted the Drug Enforcement Agency and spoke with Agent

Glenn Haas. Drews told Haas that Sergeant Greg Lind, also with the S.P.P.D., was in

the process of requesting that a state judge sign a search warrant authorizing a "noknock" entry for a residence at 492 Ada Street, St. Paul, Minnesota. Drews explained

that an individual had been seen at the residence whose associations could be traced

to individuals connected to a DEA investigation. In response, Haas contacted Ed

Bauer, his group supervisor, and Tim McCormick, the resident DEA agent in charge

of the local office. The three went to the S.P.P.D. to determine whether a search of 492

Ada Street would interfere with the DEA investigation. When Lind arrived with the

signed warrant, Haas read it. Based on information Lind provided, Haas determined

the search would not interfere with the DEA investigation, and his supervisors agreed.

With the DEA’s approval, Lind decided to go forward with the search. Haas testified

that the DEA agents volunteered their assistance because there was a potential of

finding a large amount of drugs in the house, and if that occurred, the case might be

prosecuted in federal court. Lind needed the help, so he accepted the offer. Lind then

briefed the officers and agents who would be executing the search as to the house’s

location and the plan for the initial entry.

At 1:30 p.m that same day, the officers and agents executed the search warrant.

Four federal agents participated. Haas and Agent Dan Faflack, a Customs Agent on

the DEA Task Force, were part of the entry team. Bauer and McCormick were posted

outside. Lind, the lead person on the entry team, used a ram to force his way into the

house. He did not knock and announce his presence before entering. Tavares, who

was present during the search, was handcuffed by Lind and placed on the living room

couch. In an upstairs bedroom closet, Lind found a .45 caliber semiautomatic handgun

and a fully-loaded .45 caliber clip. However, no drugs were discovered.
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I.

When a district court denies a motion to suppress evidence, we will uphold the

court’s findings of fact unless clearly erroneous. See United States v. McMurray, 34

F.3d 1405, 1409 (8th Cir. 1994). However, we review the court’s application of law

to those facts de novo. Id. “We affirm the district court’s denial of a motion to

suppress evidence unless it is unsupported by substantial evidence, based on an

erroneous interpretation of the law, or, based on the entire record, it is clear that a

mistake was made.” United States v. Murphy, 69 F.3d 237, 240 (8th Cir. 1995)

(internal quotations omitted). Because the district court erred in interpreting the law

and in applying it to the facts of this case, we reverse.

II.

Tavares argues that the district court erred in concluding that 18 U.S.C. § 3109

did not apply to the officers’ and agents’ conduct in executing the search warrant. The

statute provides:

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 a warrant.

18 U.S.C. § 3109.

A.

Section 3109 applies “[w]hen federal officers are a significant part of a search

conducted pursuant to a state warrant . . . .” United States v. Murphy, 69 F.3d 237,

242 (8th Cir. 1995); see United States v. Moore, 956 F.2d 843, 847 n.3 (8th Cir. 1992).
2Unlike the dissent, however, we do not read Moore, or any of our other

precedent to require an additional showing that the state warrant is just a "ruse" to

cloak a federal investigation once significant federal involvement is shown.

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Accord United States v. Brown, 52 F.3d 415, 418, 420 (2d Cir. 1995) (search executed

by state and federal officers pursuant to a state warrant made the search subject to

federal rules). In Moore, we stated that “[f]ederal agents may not circumvent more

restrictive federal requirements by arranging for state officers to search under state

law,” 956 F.2d at 847 n.3.2

In the case before us, the facts related to the issue of federal involvement are not

in dispute. The search warrant was obtained by a state officer, Lind, and issued by a

state judge. Haas testified that he was contacted around the time the warrant was being

obtained, and that he in turn contacted Bauer and McCormick. Soon thereafter, and

before it was executed, Haas read the warrant. Though they were not involved in the

planning, directing, or organization of the search, agents Haas, Bauer, McCormick, and

Faflack constituted four of the approximately ten law enforcement officers who

participated in the search. Six or seven of those officers, including Haas and Faflack,

were members of the entry team. Haas’s supervisors, Bauer and McCormick, were

posted outside the house. Haas testified that part of the execution of a warrant involves

officers standing around the perimeter of the search scene, so Bauer and McCormick

did, in fact, participate in the execution of the warrant at Tavares’s residence.

According to Haas’s testimony, he was interested in participating in the execution of

the warrant because of the possibility of a federal prosecution if a large amount of drugs

was recovered. Haas discussed this possibility with the St. Paul police prior to the

search. Lind, the only other witness to testify, confirmed that the federal agents

participated in executing the warrant because of the possibility of finding a large

amount of drugs.
3McCain involved the applicability of Fed. R. Crim. P. 41(d). However, the

analysis is the same in section 3109 cases. See footnote 4, infra.

4Schroeder involved the applicability of Fed. R. Crim. P. 41(d), rather than 18

U.S.C. § 3109. However, our analysis was based on our prior ruling in Moore, a

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The district court focused primarily on the lack of federal involvement in

obtaining the search warrant, noting that “the preparation of the affidavit in support of

the search warrant was well along in its formative stages” when there was contact

between the St. Paul officers and the federal authorities. The court found it significant

that the affidavit was prepared before any federal involvement in the case. The court

further found that the federal involvement was only “incidental to the state court search

warrant,” and that there was no intent to evade the federal requirements of 18 U.S.C.

§ 3109. Therefore, the court determined that section 3109 did not apply. The court’s

concentration primarily on the lack of federal involvement in obtaining the search

warrant, giving substantially lesser weight to federal involvement in the execution of

the warrant, does not faithfully apply our precedent.

In determining whether there is significant federal involvement, our cases focus

not only on the efforts to obtain a warrant, but also on the execution of the warrant. In

United States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982), we observed that “federal

involvement in a state search may serve to render the search subject to federal

procedures.” However, since no federal officers were involved in the criminal

investigation, or in obtaining or executing the warrant, federal rules did not apply to the

search. Id. at 662-63.3

 See also Moore, 956 F.2d at 847 (section 3109 not applicable

where state officers acted totally without federal involvement in seizing evidence);

United States v. Murphy, 69 F.3d 237, 242 (8th Cir. 1995) (no “significant federal

involvement” where no federal officer participated in initial entry and search of

residence, and where federal officers not contacted until after state officers found what

they believed to be explosives). In United States v. Schroeder, 129 F.3d 439, 443 (8th

Cir. 1997),4 we held that even the presence of federal officers at the search would not
section 3109 case.

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have constituted significant federal involvement, at least where state officers obtained

and executed a warrant issued by a state judge as part of an investigation based on state

law. Cf. Byars v. United States, 273 U.S. 28, 33 (1927) (before the exclusionary rule

was held applicable to the states, federal participation in execution of state warrant

rendered the search “in substance and effect . . . a joint operation” of local and federal

officers to which federal exclusionary rules apply); Lustig v. United States, 338 U.S.

74, 79 (1949) (“The decisive factor in determining the applicability of the Byars case

is the actuality of a share by a federal official in the total enterprise of securing and

selecting evidence by other than sanctioned means. It is immaterial whether a federal

agent originated the idea or joined in it while the search was in progress.”).

While there is no question the warrant was obtained by state officials, there was

contact between the St. Paul Police Department and the federal agents before the

warrant was obtained. There was discussion of the effect of the search upon a DEA

investigation and the possibility that the search might uncover multiple pounds of

methamphetamine. Both Lind and Haas contemplated federal prosecution if that

quantity of drugs were recovered. The federal officers thus played more than a passive

role in preparing for the search.

Regarding the execution of the warrant, four of the approximately ten officers

involved were federal. Of the entry team of six or seven, two were federal. There is

no doubt that Lind of the St. Paul Police Department forced open the door, but the two

federal officers were either second and third in the entry, or third and fourth. These

federal officers each searched a specific portion of the house. Had they found illegal

contraband, they would have asked the state inventory officer to seize it. The two

federal supervisors also participated in the entry by being present outside the residence.

McCain, Moore, and Murphy all point to the significance of participation in the search.
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The district court erred in concluding that the federal involvement was only “incidental

to the state court search warrant.”

There is more federal involvement in the execution of the warrant in this case

than in the cited cases. Here, federal agents were directly involved in the execution of

the search warrant. That participation was lacking in McCain, Moore, and Murphy,

and was “at most negligible” in Schroeder, 129 F.3d at 443. And unlike the situation

in Schroeder, id., where officers conducted a search to look for possible violations of

state law, Lind and Haas contemplated that Tavares might be prosecuted federally if

a large amount of drugs were uncovered. This situation is one that fits the definition

of “significant involvement of federal officers.” Where federal agents directly

participate in a search conducted pursuant to a state warrant, but with an expectation

of federal prosecution, the stage is set for the circumvention of more restrictive federal

requirements such as those set forth in section 3109. See Moore, 956 F.2d at 847 n.3.

Therefore, we conclude that the district court erred in determining that there was no

significant federal involvement. Section 3109 was thus applicable.

B.

The next step in our section 3109 analysis is to determine whether the statute has

been violated. Lind admitted in his testimony before the magistrate judge that he had

not knocked and announced his presence or purpose before entering the Tavares home.

Our inquiry does not stop there, however, as exigent circumstances can excuse officers

executing a search warrant from meeting the requirements of section 3109. There must

be particular facts establishing “an urgent need to force entry[, which] . . . may result

from danger to the safety of the entering officers or from the imminent destruction of

evidence.” United States v. Lucht, 18 F.3d 541, 549 (8th Cir. 1994). However, at the

time of the search in the present case, the officers had no evidence of any such exigent

circumstance.
5Though this case analyzed the knock and announce requirement in light of the

Fourth Amendment reasonableness inquiry, the principle we cite is equally applicable

to a section 3109 inquiry, because section 3109 “is more restrictive than the Fourth

Amendment.” Moore, 956 F.2d at 847.

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With regard to the destruction of evidence exigency, there is no blanket

exception to the knock and announce requirement for felony drug cases. See Richards

v. Wisconsin, 520 U.S. 385, 388 (1997).5 Therefore, the government must point to

exigent circumstances peculiar to this case. We know from Lind’s affidavit in support

of his application for the search warrant that he held the following additional

information: (1) a confidential reliable informant stated he or she saw a large quantity

of a controlled substance at 492 Ada Street in the presence of its resident, identified as

Santos; (2) a criminal history check of Tavares showed six entries for either drug

possession or parole and probation violations on drug related charges; (3) while

conducting surveillance of the residence, Lind had observed individuals he knew to be

involved in the drug trade; and (4) the residence might be connected to the individuals

responsible for an earlier drug related arrest which uncovered five pounds of

methamphetamine. The officers had evidence of a large quantity of drugs, and while

Lind’s affidavit states that drugs are easily disposed of, he testified that a package of

five pounds of methamphetamine is large and would not be easy to flush down a toilet

or pour down a sink. The presence of a large amount of drugs makes their imminent

destruction difficult, which cuts against the argument that evidence might have been

destroyed had the officers knocked and announced their presence. See United States

v. Bates, 84 F.3d 790, 796-97 (6th Cir. 1996) (no exigency existed, because fifteen

pounds of cocaine could not be quickly disposed of, and there was no reason to believe

that the defendants were likely to destroy evidence). Furthermore, at the time he

applied for the warrant, Lind did not have any information that Tavares had any history

of trying to destroy or hide evidence.
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There is also no evidence in the instant case showing that a no-knock entry was

necessary for the safety of the officers. When applying for the warrant, Lind did not

have any information that Tavares was known to use weapons, that he was armed or

carried a weapon, or that he had a history of violence toward law enforcement officers.

The only statement Lind could offer as to the dangerousness of the search was his bare

conclusion in the warrant application that unidentified suspects might be involved in

violent crimes. No evidence has been offered to support that allegation, however.

Therefore, we conclude that no exigency existed in this case to excuse the requirements

set forth in section 3109.

C.

Finally, we must determine if the officers relied in good faith on the provision in

the search warrant authorizing a no-knock entry into the Tavares home. See United

States v. Leon, 468 U.S. 897, 922-23 (1984) (establishing good faith exception to the

exclusionary rule in the Fourth Amendment context); United States v. Marts, 986 F.2d

1216, 1218-19 (8th Cir. 1993) (applying Leon in the section 3109 context). This

exception to the exclusionary rule requires that the officers executing the warrant

conduct themselves in an “objectively reasonable” manner and with “a reasonable

knowledge of what the law prohibits.” Marts, 986 F.2d at 1219 (internal quotations

omitted).

The warrant in the case at bar contained a “no knock” provision, which stated

that the executing officers need not knock and announce their presence before entering

the Tavares home. In the application and supporting affidavit, Lind stated that the “no

knock” provision was necessary for two reasons--controlled substances are easily

disposed of, and unidentified suspects might be involved in violent crimes. However,

as stated above, there has been no evidence presented to support the presence of either

exigency.
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The government argues that the officers’ and agents’ reliance on the warrant was

nevertheless reasonable in light of State v. Lien, 265 N.W.2d 833, 838-39 (Minn.

1978), which held there is no blanket exception to the knock and announce requirement

in drug cases, but that the requirement need not be satisfied if the “dwelling is being

used . . . as an outlet or warehouse for a drug business.” However, Lien’s exception

to the no-blanket-exception rule it announced is clearly overruled by Richards, 520

U.S. at 388, which held there is no blanket exception to the knock and announce

requirement in felony drug cases and endorsed no exception to the rule. As did the

officers in Marts, the officers in the instant case “clear[ly] violat[ed] . . . the knock and

announce rule, without the presence of exigent circumstances.” 986 F.2d at 1219.

Therefore, the executing officers do not benefit from Leon’s good faith exception, and

Tavares’s motion to suppress should have been granted by the district court.

III.

Tavares also argues that his Fourth Amendment rights were violated by the

officers’ failure to knock and announce their identity and purpose before forcing entry

into his home. Because we find that section 3109 requires the suppression of evidence

obtained from the search, we need not reach this constitutional issue.

* * *

Based on the foregoing, we reverse and remand to the district court with

directions that it vacate Tavares’s guilty plea, grant his motion to suppress evidence

obtained as a result of the unlawful search of his home, and conduct further proceedings

that may be appropriate.
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BEAM, Circuit Judge, dissenting.

I respectfully suggest the court used the incorrect standard to determine if 18

U.S.C. § 3109 was violated. Accordingly, I dissent.

I agree with the court that there must be “significant” federal involvement before

section 3109 is implicated. However, under our precedent, ignored by the court in this

case, that is not the end of the inquiry. This circuit requires us to look beyond the level

of involvement to determine if the state warrant is just a ruse to cloak a federal

investigation and circumvent the more stringent federal statutory requirements for a

warrant. See United States v. Moore, 956 F.2d 843, 847 n.3 (8th Cir. 1992); see also

United States v. McCain, 677 F.2d 657, 662-63 (8th Cir. 1982).

As the court points out, a state officer sought the warrant and a state judge issued

it. The state officer in charge of the investigation contacted the DEA agent as a

courtesy to find out if the state search would interfere with an ongoing DEA

investigation. DEA agents met with the St. Paul police after the warrant had been

issued to determine if the DEA investigation would be affected. And, although federal

agents participated in executing the warrant, they took no part in planning the search.

On the basis of this evidence, the district court found that there was no evidence

that indicated the state warrant was used to circumvent section 3109. We review this

finding for clear error. See United States v. Johnson, 171 F.3d 601, 603 (8th Cir.

1999). This district court's finding was not clearly erroneous and, therefore, the

evidence should not be suppressed under section 3109.

I dissent.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.