Free Motion to Suppress - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975 Phillip E. Hantel 3 Attorney at Law
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Luhrs Tower - Suite 403 45 W est Jefferson Street Phoenix, AZ 85003-2314 (602) 252-1282 Attorneys for Henry W atkins

UNITED STATES OF AMERICA DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. HENRY WATKINS, Defendant. ) ) ) ) ) ) ) ) ) ) CR03-1167-PHX-DGC MOTION TO SUPPRESS (Evidentiary Hearing Requested)

Henry E. Watkins moves this court to suppress all evidence obtained by law enforcement after they forced entry into his home, in violation of the knock and announce statute, to execute an arrest warrant. The entry rendered the search and seizure of Mr. Watkins and his home constitutionally unreasonable in violation of the Fourth Amendment to the United States Constitution. MEMORANDUM OF POINTS AND AUTHORITIES Facts: Mr. Watkins is charged with three counts in this indictment: Count 5: Violent Crime in Aid of Racketeering; Count 10: Illegal Possession of an Unregistered Firearm with an Obliterated Serial Number; and Count 11: Possession with Intent to Distribute Less than Five Grams of

Methamphetamine. The offenses are alleged to have occurred February 1, 2003; June 1, 2002; and June 5, 2002. On July 3, 2003, an indictment was returned in United States District Court Case CR03-697 charging Mr. Watkins with the charges which have now been subsumed in this indictment as Counts 10 and 11. On July 7, 2003, a bench warrant was issued for Mr. Watkins. (CR03-697, Dkt. #1 & --).

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On July 8, 2003, just after five in the morning, Bureau of Alcohol Tobacco and Firearms ("BATF") Special Agent F. Ortiz; the Oro Valley Police Department SWAT Team and Albuquerque Firearms Task Force Agentes G. Georgia, B. Martinez and T. Hernandez knocked down the front and rear doors of Mr. Watkins' home to execute a federal arrest warrant. Law enforcement did not knock and announce prior to their entry. After hearing the commotion the police made when they broke into Mr. Watkins' home, Mr. Watkins, who had been asleep in his bedroom, jumped out of bed to investigate. However, immediately after forcing entry, the SWAT team lobbed at least one stun grenade down the hallway. It exploded just outside Mr. Watkins' bedroom door with such great force that it blew him back onto his bed, left him unable to hear and disoriented for hours. It also destroyed some of the tile on Mr. Watkins' floor. Once inside Mr. Watkins' home, police observed two firearms which law enforcement determined were not stolen. SA Ortiz audio-taped an interviewed Mr. Watkins. Law and Argument: The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Under federal law, a law enforcement officer "may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance." 18 U.S.C. § 3109. By its own terms, § 3109 only "authorizes officers to damage property in certain instances." United States v. Ramirez, 523 U.S. 65, 72 (1998). The knock and announce rule "is an element of the reasonableness inquiry under the Fourth Amendment." Wilson v. Arkansas, 514 U.S. 927, 934 (1995). The United States Supreme Court has long recognized that even breaking the chain holding the door to the door jam of the house without properly knocking and announcing the officer's authority and purpose requires the suppression of evidence thereafter collected. Miller v. United States, 357 U.S. 301, 313-14 (1958). Indeed, there need not be any use of force at all--an unannounced entry through an unlocked door also violates § 3109. Sabbath v. United States, 391 U.S. 585, 590 (1968). Recent Supreme Court jurisprudence has held that § 3109 is coextensive with federal constitutional standards governing searches. Ramirez, 523 U.S. at 73 (holding that the exceptions to § 3109 are "measured by the same standard" articulated in Richards v. Wisconsin, 520 U.S. 385 (1997)); United States v. Banks, 540 U.S. 31, 43 (2003) (holding that

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Fourth Amendment analysis "should be the same under the Fourth Amendment and § 3109"); United States v. Scroggins, 361 F.3d 1075, 1080 (8th Cir. 2004) (noting that § "3109 and the Fourth Amendment codified the same common-law knock-and-announce principle, and that both are subject to the same exceptions"). The Ninth Circuit has observed that § 3109 is "aimed at the closed or locked door." United States v. Vargas, 436 F.2d 1280, 1281 (9th Cir. 1971). In analyzing circumstances where police break doors without knocking, the Tenth Circuit has held that when "the method of entry used was not formulated in response to an emergency but instead was carefully planned," the evidence seized during such a search must be suppressed. United States v. Stewart, 867 F.2d 581, 585 (10th Cir. 1989). Stewart expressly stated that any exigent circumstance exception to § 3109 was "to allow officers to formulate an immediate response to emergency situations that arise during the execution of the search warrant." Id. Hence, any advanced plan to circumvent statutory knock and announce requirements must be approved by a magistrate judge. 867 F.2d at 582. The Ninth Circuit recognizes three interests to be served by the rule of announcement: (1) it reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that `a man's house is his castle.'" United States v. Lockett, 919 F.2d 585, 587 -588 (9th Cir. 1990). The United States Supreme Court has long recognized that the fire purpose of the knock and announce rule is to safeguard the bedrock principle of the Fourth Amendment that the "poorest man may in his cottage bid defiance to all the forces of the Crown." Miller v. United States, 357 U.S. 301, 307 (1958) (attributing the remark to William Pitt, Earl of Chatham). "Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual's right of privacy in his home." Miller, 357 U.S. at 313. The notion of privacy touches upon the closely related purpose of preventing the wanton destruction of one's home by the police. Before any door to one's home is broken by a law enforcement officer, "he ought to signify the cause of his coming, and to make request to open doors . . ., for the law without a default in the owner abhors the destruction or breaking of any house." Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (quoting Semayne's Case,

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5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1603)). The Court has also long recognized that the knock and announce rule also serves to protect everyone involved--the police and the subjects of the search warrant--from unintentional violence that may accompany an unexpected and unannounced entry into a person's home. Miller, 357 U.S. at 313 n.12; McDonald v. United States, 335 U.S. 451, 460-61 (1948) (Jackson, J. concurring) (noting the danger of violence that inure to both law enforcement officers and citizens when the officer makes an unannounced entry into the citizen's home). The concerns expressed in McDonald are not

hypothetical; citizens have been known to mistake the police for burglars and shoot them. United States v. Ramirez, 523 U.S. 65, 69 (1998) (observing that once the officer's broke into the defendant's home, the defendant, thinking that he was being burglarized, ran "into his utility closet, grabbed a pistol, and fired it" in the direction of the officers); United States v. Granville, 222 F.3d 1214, 1217 (9th Cir. 2000) (noting that the defendant wounded two officers in a shootout thinking that they were robbers). That common misinterpretation of events can force a law enforcement officer to kill an otherwise innocent person to defend the officer's own life. Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005) (detailing an encounter where the police failed to notify a man about their entry into his home, and were then forced to shoot him to death after he awoke and attempted to stab an officer with a knife). Here, the law enforcement officers violated the plain language of § 3109. They never knocked or announced prior to violently forcing entry into Mr. Watkin's home. As a result of the violence, they needlessly injured Mr. Watkins and needlessly damaged his home. The officers' reckless and unauthorized conduct here violated each one of these interests. Accordingly, due to the failure "to comply with the requirements of 18 U.S.C. § 3109 . . . any evidence obtained during the search must be suppressed." Granville 222 F.3d at 1217. Conclusion: For the foregoing reasons, Mr. Watkins' requests that this court suppress all evidence obtained, including his statements, as a result of law enforcement's forced entry into his home on July 8, 2003.

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Respectfully submitted this 14th day of December, 2005.

/s/ ______________________ CARMEN L. FISCHER PHILLIP E. HANTEL Attorney for Henry Watkins A courtesy copy of the foregoing delivered this 15th day of December 2005 to: Judge David G. Campbell United States District Court Judge

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