Archie v. State

MURPHY, C.J. This appeal from the Circuit Court for Washington County presents the question of whether officers serving a search warrant violated the “knock and announce” rule because, after announcing their purpose and authority, they entered before they were denied admittance by the lessee of the apartment described in the warrant. 1 A Washington County jury (the ²³² Honorable Fred C. Wright, III, presiding) convicted Fleance Tyrone Archie, appellant, of possession of marijuana and possession of cocaine. 2 Appellant now presents two questions for our review: I. DID THE COURT ERR IN REFUSING TO SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF A VIOLATION OF THE KNOCK AND ANNOUNCE REQUIREMENT IN THE EXECUTION OF THE SEARCH WARRANT?

II

WAS THE EVIDENCE LEGALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS? For the reasons that follow, we answer “no” to each question, and therefore affirm the judgments of the circuit court. Factual Background On May 8, 2002, agents of the Washington County Narcotics Task Force and the Hagerstown Police Department executed a Search and Seizure Warrant at 213 North Mulberry Street, apartment IF, Hagerstown, Washington County, Maryland. 3 During the pre-raid briefing, Agent Frank Toston told the members of the entry team that they would be executing “a knock and announce search warrant.” The officers prepared to execute the warrant by taking various positions around the apartment building in which appellant’s apartment was located. They had been conducting surveillance for approximately ²³³ an hour and a half when they observed appellant enter the building.

Shortly théreafter, the officers executed the warrant. The entry team consisted of approximately eight officers, all in full SWAT uniforms, red vests and helmets. A ram was used to open the front door of appellant’s apartment. At the suppression hearing, Sergeant Mark Holtzman, who was “on the street within eye shot of the front of the residence” when entry was made into the apartment, testified as follows: [I] could hear the SWAT Team go up.

It’s a very small . .. the way the door opens up to the front of the house. It opens up and the defendant’s door is just on the right and then there’s another door that goes upstairs. So it’s very tight in there. So that’s why I stayed out on the street and I heard one of the team members do the knock and announce.

I could hear the door pounding. Police. Search warrant.... [This] is standard protocol for them. It was a knock and announce warrant.

It was not a no knock warranty] [T]here was a very distinct break in between those patterns of events.... It was the pounding. I heard, “Police. Search warrant.

Open the door. Open the door.” Nothing happened. And then I heard the ram pounding on the door and it took several hits to get through with the ram. When the officers entered, they found appellant lying on the floor with most of his body in the bathroom and his legs out in the hallway.

Appellant’s body was directly in front of the toilet and his arm was wet “up to his elbow.” A snack bag was on the floor next to him. 4 A juvenile female was seated in the living room. Appellant was brought into the living room while the search was conducted. ²³⁴ Numerous plastic bags of marijuana were found on a chair in the kitchen. A burnt marijuana cigarette was found in an ashtray on the kitchen counter. A marijuana cigar and marijuana were found in a trash can also located in the kitchen.

Bags of marijuana were also found in the stove. On the counter were a box cutter knife, a plastic bag, and a digital scale, all containing cocaine residue. Near the oven in the kitchen was a Diaper Genie, inside of which were four gallon size zip-lock baggies of marijuana. The officers also seized a potato chip container with a false bottom and a secret compartment containing cocaine residue.

On the kitchen counter was correspondence addressed to “Ayo Flea.” Officer Hose testified that he personally knew appellant and knew his nickname to be “Flea” or “Flea Dog.” April Anderson testified that in April or May, she came to this residence, appellant’s apartment, to “get some coke.” Based on the personal effects found during the search, there appeared to be no one other than the appellant residing in the apartment. Discussion I. Appellant argues that his motion to suppress should have been granted on the ground that the police failed to comply with the requirements of the knock and announce rule. 5 According to appellant, the police were required to wait ²³⁵ longer than they waited before making a forced entry into his residence. 6 We reject that argument. The “knock and announce” rule does not require the officers executing a search warrant to (1) knock and announce their purpose and authority, and (2) delay entry until the persons inside the premises to be searched have ample opportunity to get rid of any and all incriminating evidence. In the case at bar, (1) the premises to be searched was a one bedroom apartment, and (2) the warrant authorized the officers to search the apartment for “controlled dangerous substances [and] related paraphernalia.” Under these circumstances, the timing of the officers’ entry did not violate appellant’s Fourth Amendment rights.

The Fourth Amendment to the Constitution safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend.

IV

The Fourth Amendment requires that searches be carried out in a “reasonable” manner. United States v. Banks, 540, U.S. 31, 35-36, 124 S.Ct. 521, 525 , 157 L.Ed.2d 343 (2003). In evaluating reasonableness, 7 courts consider “whether law enforcement officers announce[ ] their presence and authority prior to entering” a dwelling. Wilson v. Arkan ²³⁶ sas, 514 U.S. 927, 931 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995).

The “knock and announce” rule, therefore, “forms a part of the reasonableness inquiry under the Fourth Amendment.” Id. at 929 , 115 S.Ct. 1914 . “It is well settled in Maryland, and long has been so, that a police officer executing a search warrant ‘must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter’ the premises to be searched.” State v. Lee, 374 Md. 275, 283 , 821 A.2d 922 (2003) (quoting Henson v. State, 236 Md. 518, 521-22 , 204 A.2d 516 (1964), overruled on other grounds, Wynn v. State, 351 Md. 307 , 315 n. 4, 718 A.2d 588 (1998)). The reasons behind this rule are threefold: (1) “to prevent sudden, unannounced invasions of the privacy of citizens,” (2) “to prevent the needless destruction of property,” and (3) “to safeguard the officer who might otherwise be killed by a ‘fearful householder’ unaware of the officer’s identity or purpose.” See Irma S. Raker, The New “No Knock” Provision and its Effect on the Authority of the Police to Break and Enter, 20 Am. U.L.Rev. 467, 469 (1970-71); see also Lee, 374 Md. at 284 n. 8, 821 A.2d 922 . Under the common law, compliance with the knock and announce rule required two separate but related actions: First, the officers serving the warrant were required to knock and announce their presence and purpose; second, forcible entry was prohibited until the request was refused.

The knock and announce rule is not immune from exceptions, however. The Fourth Amendment contains a “flexible” requirement of reasonableness and does not “mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Wilson, 514 U.S. at 934 , 115 S.Ct. 1914 . For example, a no-knock entry is justified when police 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.” Richards v. Wisconsin, 520 U.S. 385, 394 , 117 S.Ct. ²³⁷ 1416, 137 L.Ed.2d 615 (1997). 8 The “standards for requiring or dispensing with a knock and announcement” are the same as those used to determine “when officers can legitimately enter after knocking.” Banks, 124 S.Ct. at 524 . Nowhere in the Wilson , opinion does the Court expressly state that an officer has an obligation to wait until admittance has been refused before force can be used to enter the premises.

In Let Sleeping Dogs Lie: Why the Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U.L.Rev. 895, 904-05 (2002)(footnote omitted), written by Tracey Macklin, the author points out that, at key points in the Wilson opinion, Justice Thomas omits the portion of the rule prohibiting forcible entry until the request is refused. 9 According to the author, “[t]his is not a trivial omission.” Id. at 905, 115 S.Ct. 1914 . ²³⁸ The appellate courts of this State have held that, when police officers fear for their safety or believe that evidence will be destroyed if they warn of their presence, they need not knock and announce. 10 Wynn v. State, 117 Md.App. 133, 167 , 699 A.2d 512 (1997), rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998). 11 Likewise, this Court has ordered suppression of evidence whenever the suspicion of exigency was insufficient to excuse a failure to comply with the “knock and announce” requirement. See Lee v. State, 139 Md.App. 79 , 774 A.2d 1183 (2001), aff'd, State v. Lee, 374 Md. 275 , 821 A.2d 922 (2003); Carroll v. State, 149 Md.App. 598, 612-13 , 817 A.2d 927 (2003), rev’d, State v. Carroll, 383 Md. 438 , 859 A.2d 1138 (2004). 12 ²³⁹ When officers equipped with a search warrant do knock and announce, courts have found the existence of a refusal of admittance most often by implication. 13 “Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one.” United States v. Banks, 124 S.Ct. 521, 529 (2003). The Banks Court, however, held that when officers knock and announce their presence, and forcibly enter after a “reasonable suspicion of exigency ha[s] ripened, their entry satisfie[s] ... the Fourth Amendment, even without refusal of admittance.” Id. at 529 . In United States v. Cline, 349 F.3d 1276, 1289-90 (10th Cir.2003), the court found a search reasonable when, after knocking and announcing, police forcibly entered the residence after a five to ten second wait when “officers were aware that a prior search of Cline’s house had revealed firearms” and “they suspected he used counter-surveillance equipment and ²⁴⁰ could be aware of their approach.” In State v. Ordonez-Villanueva, 138 Or.App. 236 , 908 P.2d 333 (1995), review denied, 322 Or. 644 , 912 P.2d 375 (1996), police officers made a forcible entry into an apartment just four seconds after they knocked and announced that they had a search warrant.

The Oregon Court of Appeals held that the officers had acted reasonably because the search warrant authorized a search for controlled substances, which could easily have been destroyed if the officers were required to wait a prolonged time after their announcement. Id. at 336-37. See also State v. Reid, 151 N.C.App. 420 , 566 S.E.2d 186, 190-91 (2002) (citations omitted), in which the Court of Appeals of North Carolina affirmed the denial of a motion to suppress evidence on the ground that the police officers executing a search warrant for narcotics waited only six to eight seconds before using a battering ram to knock down a door. It is true that the common law knock-and-announce principles form a part of the reasonableness inquiry under the Fourth Amendment, Wilson, supra, at 930 , 115 S.Ct. 1914 .

It is also true, however, that the search must be unreasonable in its totality in order to trigger the exclusionary rule. Banks, supra, 124 S.Ct. at 524-25 . “Reasonableness is a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case----” Id. at 525 . As indicated above, courts consider such factors as the likelihood of the presence of weapons, dangerous criminals, easily disposable evidence such as drugs, and counter-surveillance equipment when they calculate the reasonableness of a search. Exigent circumstances may justify dispensing with the requirement that the officers, after giving notice, must wait until they are refused permission to enter.

Id. at 529 . We are persuaded that the above authorities stand for the following proposition. Once the officers executing a search warrant for a residence have announced their purpose and authority, how long they must wait before making a forcible entry depends upon (1) the size of the place to be ²⁴¹ searched, and (2) how easy it would be for someone inside the residence to destroy the evidence described in the warrant. When the evidence described in the warrant is of a highly evanescent nature, the place to be searched is a one bedroom apartment, the officers assigned to execute the warrant know that the suspect is in the apartment, and they have announced their purpose and authority, the officers may make a forcible entry into the apartment when they do not receive a prompt response to their announcement.

In the case at bar, the evidence shows that the police (1) knocked and announced their presence, and (2) waited a brief period of time before forcing their way in. Sergeant Holtz-man described the entrance in the following way: “It was the pounding. I heard, ‘Police. Search warrant.

Open the door. Open the door.’ Nothing happened. And then I heard the ram pounding on the door and it took several hits to get through with the ram.” He stated that there was a “very distinct break” between the knock and announce and the start of the forced entry. The information set forth in the affidavit for the search warrant established that in mid-2001 the Hag-erstown City Police began to receive complaints about drugs being sold from 213 North Mulberry Street by a black male known as “Flea.” The police received information from many individuals who reported either (1) buying marijuana and cocaine from appellant at this address, or (2) knowing someone who had done so.

A source of information (SOI) advised the police that [appellant] also goes by the street name of “Flea” and resides at 213 North Mulberry Street, 1st floor apartment, Hagerstown, Washington County, Maryland.... The SOI advised that [appellant] is a distributor of cocaine, crack cocaine, and marijuana. The SOI advised that he/she has been at [appellant’s] residence ... and observed marijuana being kept in the oven in gallon size plastic bags. The SOI has also observed crack cocaine at the residence which [appellant] stores ²⁴² inside potato chip bags as well as in a trash can in the kitchen.

The SOI advised that [appellant] has a camera mounted on the front of the target apartment building which allows him to monitor vehicular traffic on North Mulberry Street as well as the porch and sidewalk areas located in front of the target apartment building. The viewing monitor is located in the kitchen of the target residence. [The] Affiant Toston and Co-Affiant Hose did observe a camera mounted on the left side of the front window of the target apartment building. The SOI indicated that [appellant] has a partner ... who stays with [appellant] at 213 North Mulberry Street and sells cocaine and marijuana from [appellant’s] residence.... The SOI advised that he/she has observed [appellant’s partner] carry a .357 magnum handgun on his person while he conducts CDS transactions.

A person known to associate with appellant indicated to the police that “appellant has a camera installed at the front porch of his apartment that allows him to monitor any persons who enter the apartment building. The camera is viewed by a way of a monitor that is kept on the kitchen counter of the target residence.” In addition, a criminal history check revealed that (1) in 1997, appellant was arrested for distribution of cocaine and possession with intent to distribute, and (2) appellant’s alleged partner had been arrested for wearing/carrying a handgun, possession of cocaine, and conspiracy to distribute cocaine. It is well known that persons suspected of narcotics distribution are prone to carrying weapons. Ybarra v. Illinois, 444 U.S. 85, 106 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979).

It is also true that drugs are peculiarly susceptible to quick destruction. Ker v. California, 374 U.S. 23, 40-41 , 83 S.Ct. 1623 , 10 ²⁴³ L.Ed.2d 726 (1963). 14 In this situation, appellant’s associate, who was known to stay at the residence, had been arrested on weapons possession charges. Both he and appellant were known to deal drugs and to keep them in the kitchen near the sink and in the bathroom near the toilet. Appellant’s apartment was also equipped with a surveillance camera which would only increase the likelihood that appellant would be able to dispose of the drugs while the police were waiting outside. 15 We hold that in the case at bar, in light of the information (about appellant, the size of his apartment, his associates, his activities, and his use of surveillance equipment to monitor people approaching his residence) acquired during the investigation, the requirements of the Fourth Amendment were satisfied when the officers (1) knocked on appellant’s door, providing clear notice of their purpose and authority, (2) waited a very brief period of time, and then (3) forced their way into appellant’s apartment.

Under these