Price, Gilbert Colman v. The State of Texas--Appeal from 228th District Court of Harris County

Reversed and Remanded and Opinion filed September 12, 2002

Reversed and Remanded and Opinion filed September 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01028-CR

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  GILBERT COLEMAN PRICE, Appellant

V.

  THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

  HarrisCounty, Texas

Trial Court Cause No. 875,465

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O P I N I O N

Gilbert Coleman Price appeals his conviction and sentence of three years deferred adjudication for possession of more than four but less than two-hundred grams of cocaine. Appellant contends the trial court erred in overruling his motion to suppress evidence pursuant to the Fourth and Fourteenth Amendments to the United States Constitution because the police violated the Aknock and announce@ rule. We reverse and remand for further proceedings consistent with this opinion.

Procedural Background

On April 23, 2001, Officer Michael R. Burdick executed a search and arrest warrant at appellant=s home. Prior to trial, appellant filed a motion to suppress evidence, claiming the search and arrest Awere conducted without legal justification@ because the officers Adid not comply with the >knock, announce, and wait= rule set out in federal law.@ The motion to suppress was heard on affidavits. Appellant=s affidavit asserted that A[w]hen the police entered [his] house just before midnight on April 23, 2001, they did so via a forced hard entry through the side door. At no time did [he] or any of the other people in [his] house hear the police knock and announce themselves before they broke through the side door.@ Without presenting additional evidence, the State produced a single affidavit that had been submitted by Officer Burdick in support of the warrant to search appellant=s home. The State relies exclusively upon the following sentence in the affidavit: AIt has been the experience of your affiant that individuals who are in the possession of controlled substances are normally in possession of firearms and such should be considered armed and dangerous.@ Defendant pled guilty but reserved the right to appeal the trial court=s denial of his motion to suppress.

Standard of Review

We review a trial court=s ruling on a motion to suppress under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). We give great deference to a trial court=s determination of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When, as here, the trial court does not file findings of fact, we assume the court made implicit findings that support its ruling, so long as those implied findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We conduct de novo review of mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Guzman, 955 S.W.2d at 89.

Legal Development

Whether the common law requirement that police knock and announce their presence prior to entering the home to search and/or arrest was covered under the Fourth Amendment had not been decided by the United States Supreme Court prior to the publication of Wilson v. Arkansas.[1] 514 U.S. 927, 934 (1995). In Wilson, the police entered the defendant=s home by opening a screen door without first announcing their presence. Id. at 929. Once inside, the officers seized marijuana, methamphetamines, valium, narcotics paraphernalia, a gun, and ammunition. Id. Disagreeing with the Arkansas Supreme Court, the Supreme Court held that the common law Aknock and announce@ rule forms a part of the reasonableness inquiry under the Fourth Amendment. Id at 930. Although Wilson involved a search, not an arrest, LaFave indicates there is Alittle if any doubt@ that the execution of arrest warrants also requires notice. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment ' 6.2(a) (3d ed. 1996). Wilson incorporated the knock-and-announce rule into the Fourth Amendment but left unidentified the circumstances under which the failure to knock and announce would be excused. 514 U.S. at 936. This fact intensive question was left to the lower courts. Id.

Even before the Supreme Court=s jurisprudential shift in Wilson, lower courts invoked both the Ker factors and similar rationales in analyzing whether a failure to knock and announce would be permissible. See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir. 1993); People v. Rosales, 437 P.2d 489, 493 (Cal. 1968) (providing exceptions for danger to the officer, destruction of evidence, or frustration of arrest); People v. Gastelo, 432 P.2d 706, 707B08 (Cal. 1967); see also Reynolds v. State, 238 So. 2d 557, 559B60 (Ala. Crim. App. 1970). Other approaches provided for a blanket exception based on the assumption, usually viable in narcotics cases, that evidence could always be easily and rapidly discarded

Two years after Wilson, in Richards v. Wisconsin, the Supreme Court adopted the first approach and rejected the latter, holding:

In order to justify a Ano-knock@ entry, the police 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.

 520 U.S. 385, 394 (1997) (emphasis added); see also Roska v. Peterson, No. 01-4057, 2002 WL 2029303, at *3 (10th Cir. Sept. 5, 2002). The court reasoned that A[t]his standardCas opposed to a probable-cause requirementCstrikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.@ Richards, 520 U.S. at 394.

As Richards and Wilson are such recent cases, few intermediate Texas courts have addressed these issues. See Broussard v. State, 68 S.W.3d 197, 199 n.2 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (en banc) (finding evidence insufficient to demonstrate counsel ineffective for failing to file a suppression motion based upon officers= unannounced entry); Stokes v. State, 978 S.W.2d 674, 676 (Tex. App.CEastland 1998, pet. ref=d) (discussed below); Robinettv. Carlisle, 928 S.W.2d 623, 627 n.5 (Tex. App.CFort Worth 1996, pet. denied). No opinion from the Texas Court of Criminal Appeals is on point.

Discussion

The State does not dispute appellant=s claim that Officer Burdick failed to knock and announce prior to entering the home. Rather, the State contends the search was lawful because Officer Burdick=s warrant affidavit demonstrates knocking and announcing would have been dangerous and futile, one of the exceptions to the rule set out in Richards. 520 U.S. at 394.

It is instructive to examine the circumstances under which courts have upheld no-knock entries. In Stokes v. State, a no-knock entry was upheld where the officer testified he had received reliable information from informants that guns (as well as marijuana) were in the residence. 978 S.W.2d at 675. Reasonable suspicion has been found where affidavits averred that a gun had been seen in the home more than five days prior to execution of the warrant. United States v. Brown, 276 F.3d 14, 14 (1st Cir. 2002) (equally divided en banc decision). Other courts have affirmed no-knock entries upon a showing that the defendant had little more than a violent past. See, e.g., United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000) (defendant sought in another jurisdiction for numerous violent offenses); United States v. Jewell, 60 F.3d 20, 23B24 (1st Cir. 1995) (defendant kept a pit bull dog in the apartment, and had an Aextensive history of arrest and conviction for violent crimes.@); but see United States v. Bates, 84 F.3d 790, 796B97 (6th Cir. 1996) (finding no knock entry illegal where, despite information that a gun was in the apartment, there was neither an indication that the defendants were violent and likely to use a weapon if confronted by law enforcement officers nor evidence they had a criminal history of violence or a reputation indicating they were likely to be violent). Additionally, affirmance has sometimes been based on combinations of a defendant=s criminal past, violent threats, and police officers= suspicion that the defendant knew he was wanted. See, e.g., United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998). Exigent circumstances have also been found where the warrant stemmed from an investigation of a violent crime. See, e.g., State v. Nordstrom, 25 P.3d 717, 734 (Ariz. 2001) (multiple murders).

The showing required to invoke Richards= danger exception is Anot high.@ 520 U.S. at 394B95. Even with this low burden, however, our examination of the record reveals no evidence demonstrating the officers in this particular case had reason to believe appellant himself was either armed or dangerous. Officer Burdick=s statement in his warrant affidavit, AIt has been the experience of your affiant that individuals who are in the possession of controlled substances are normally in possession of firearms and such should be considered armed and dangerous,@ is not sufficient to justify a no-knock entry. See State v. Cohen, 957 P.2d 1014, 1016 (Ariz. Ct. App. 1998) (affirming suppression under similar facts).[2] To be sure, drug dealers frequently respond with violence when threatened with arrest. Nevertheless, Aif a per se exception were allowed for each category of criminal investigation that included a considerableCalbeit hypotheticalCrisk of danger to officers or destruction of evidence, the knock and announce element of the Fourth Amendment=s reasonableness requirement would be meaningless.@ Richards, 520 U.S. at 394; see also United States v. Valdez, Nos. 01 41014, 02 40231, 2002 U.S. App. LEXIS 16184, at *5B6 (5th Cir. August 12, 2002) (affirming suppression where officer justified the entry on the grounds that Adefendant was a known drug dealer and that known drug dealers are prone to certain violent behavior.@).

As the State points out, Richards did not involve the review of reasonableness under specific facts, but rather a judicially created, explicit exception to the knock-and-announce requirement. However, based on this distinction, no authority permits the State=s conclusion that Awhile [Officer Burdick=s] statement is couched in terms of the general, the fact that such a statement was included in this specific affidavit indicates that the affiant believed that the target in this case would be armed and dangerous.@ The language in Richards requiring evidence of dangerousness under the particular circumstances, as well as the cases that have followed it, are contrary to the State=s argument. See Garza v. State, 632 N.W.2d 633, 638B39 (Minn. 2001) (affirming suppression where unannounced search defended only by general statement in affidavit that APersons involved in Drug trafficking will destroy evidence . . . [and] will use violence . . .@); State v. Johnson, 775 A.2d 1273, 1279B82 (N.J. 2001) (suppression affirmed where officers= testimony regarding risk of violence and destructibility of evidence was conclusory and lacked specific factual references); Mazepink v. State, 987 S.W.2d 648, 655 (Ark. 1999) (suppression appropriate even though police officers testified as to their general experience in serving drug search warrants); People v. Wright, 697 N.E.2d 693, 696 (Ill. 1998) (affirming suppression where evidence that firearms were in residence but no evidence that the weapons would be used against police if announcement made); Cohen, 957 P.2d at 1016.

Here there was no threat of violence, no history of violence, no reliable or even unreliable indication arms were actually in appellant=s home, and no indication appellant knew he was under suspicion. The mere assumption that those in possession of controlled substances are normally also in possession of firearms is insufficient as a matter of law to eliminate the notice requirement. Richards, 520 U.S. at 394B95; Valdez, 2002 U.S. App. LEXIS 16184, at *5B6. We sustain appellant=s issue.

Accordingly, we reverse the trial court=s judgment and remand this case for further proceedings consistent with this opinion.[3]

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed September 12, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Publish C Tex. R. App. P. 47.3(b).

[1] The best authority available had been a plurality decision in a challenge to a no-knock arrest in Ker v. California, 374 U.S. 23 (1963) (plurality opinion). See also 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment ' 4.8(a), 6.2(a) (3d ed. 1996) (discussing entry without notice to search and arrest). The four dissenters in Ker would have included the notice requirement within the Fourth Amendment and identified three exceptions: (1) actual awareness of the officers= authority or presence; (2) imminent danger of bodily harm to the officers; or (3) actual and justifiable belief by the officers that an escape or destruction of evidence is underway. Ker, 357 U.S. at 47 (Brennan, J., dissenting)

[2] In Cohen, the only evidence cited by the State was the lead officer=s statement that Awhen [felony drug suspects] know who you are, and they see you, they know why you are there, that to protect evidence from being destroyed or for some type of guns to be drawn or somebody escaping out the back door, we make entry and secure the scene.@ 957 P.2d at 1016.

[3] Although not raised in appellant=s brief, a closely related and perhaps more vital issue C the type of notice that will pass muster under the Fourth Amendment C has also eluded consideration by Texas courts. Lacking definitive guidelines, police officers in several Texas counties have testified that they perhaps violate the rule in Wilson and Richards in all cases. See United States v. Cantu, 230 F.3d 148, 154 n.1 (5th Cir. 2000) (Calhoun County); Broussard v. State, 68 S.W.3d 197, 210 n.4 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (en banc) (Cohen, J., dissenting) (Harris County); see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment ' 4.8(c) (3d ed. 1996 & Supp. 2002) (police must provide notice of both authority and purpose, and then wait long enough to give occupant a reasonable opportunity to surrender). LaFave does indicate that the requirement that police wait for refusal has often been narrowly construed. Compare United States v. Knapp, 1 F.3d 1026, 1030B31 (10th Cir. 1993) (conviction affirmed where officers waited only 10 to 12 seconds for amputee to answer the door).