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Full Opinion
delivered the Opinion of the Court.
¶1 Appellants Tanya Marie Anyan, Jay Cleveland, and Troy Klein were each convicted of drug-related felonies in the District Court for the Twentieth Judicial District, Sanders County, after pleading guilty to the charges pursuant to a plea agreement. We reverse and remand for further proceedings consistent with this Opinion.
¶2 We address the following issue on appeal: Whether law enforcement officers’ no-knock entry into Appellants’ house to execute a search warrant violated Appellants’ constitutional rights to privacy and to be free from unreasonable searches and seizures.
Factual and Procedural Background
¶3 In late May 2000, Officer Christopher Nichols of the Thompson Falls Police Department was assigned to investigate suspected illegal drug activity occurring at a rented house in Thompson Falls. During the course of the investigation, Officer Nichols determined that the occupants of the house were involved in operating a clandestine methamphetamine lab. Hence, on July 11, 2000, Officer Nichols requested the assistance of Sergeant Allen Bardwell, an officer with the Kalispell Police Department and team leader of the Kalispell SWAT team, in serving a search warrant. After meeting with Officer Nichols and learning that the house to be searched was a large
¶4 On July 24,2000, Officer Nichols obtained a warrant to search the residence. In his application for the search warrant, Officer Nichols related that “out of the ordinary traffic” was seen coming and going from the residence and that a great number of the vehicles were from Washington state. Officer Nichols also stated that he checked the license plates on three of the vehicles that he had seen at the residence. One of them was registered to Klein. Officer Nichols then checked with Spokane County and discovered that Klein had been charged in the past with committing drug offenses. According to Officer Nichols, Klein also had three active felony warrants.
¶5 Officer Nichols also related in his search warrant application that several other individuals that had been seen near the residence had been charged with drug offenses. In addition, one of the vehicles seen at the residence was registered to an individual who had felony convictions for burglary and child rape. Officer Nichols also related that during his investigation, he discovered that there was a surveillance camera located in the second story east window of the residence and that it appeared to be pointed at the driveway.
¶6 Officer Nichols had discovered during the course of his investigation that an individual matching Klein’s description had purchased ammunition from a local hardware store. While he did not include this information in the application for the search warrant, Officer Nichols did share this information with Sergeant Bardwell and Undersheriff Curry. However, the two-and-a-half month investigation, which included surveillance of the home, had yielded no observation or reports of weapons sighted in the home or in the possession of any of the individuals in the home. Officer Nichols also discovered that Klein had a warrant for his arrest in connection with a nonviolent felony parole violation.
¶7 On the night of July 25, 2000, the two SWAT teams, totaling fifteen men, and officers from several other law enforcement agencies converged on Thompson Falls at approximately 1:45 a.m. Officer Nichols, Sergeant Bardwell, and Undersheriff Curry discussed the manner of executing the search warrant, including the question of whether the officers should knock and announce their presence and
¶8 On the morning of the raid, while the SWAT teams and other officers convened at the Thompson Falls Police Department for briefing, Officer Nichols ordered two officers to conduct surveillance on the residence from an upstairs bedroom of the house across the street. Officer Shawna Reinschmidt was watching the activities in the front of the house at 2:20 a.m. when a car, which had left the house about five minutes earlier, returned, and the male driver got out of the car and yelled at everyone to get inside and turn off the fights. Officer Reinschmidt reported her observations to the SWAT team assembled at the police department. Fearing that their presence may have been detected, the officers decided not to wait until 4:00 a.m. to execute the warrant. Officer Reinschmidt continued to observe the house and although she saw some movement in the kitchen, she later testified that her observations were entirely consistent with the occupants preparing to retire for the night.
¶9 Law enforcement officers executed their no-knock raid at 3:00 a.m. As the officers approached the house they observed that it was quiet and most of the fights were off. None of the officers detected any activity or heard anything consistent with attempts to escape or resist arrest. There was no indication that any of the occupants had detected the officers’ presence or anticipated the raid. There was also no indication that the house had been barricaded or booby trapped.
¶10 The officers approached the home from the west and the north, outside of the range of the surveillance camera located on the east side of the house. The Kalispell SWAT team was assigned to enter the house at the upper level from an outside stairway and the Flathead County SWAT team was assigned to enter the house from the ground floor. At least six officers from the Kalispell SWAT team entered the top floor by using a steel ram to break the doorjamb. They confronted four of the occupants of the house who were in various stages of sleep and preparation for sleep. Another seven or eight officers from the Flathead County SWAT team entered the house through the downstairs kitchen door confronting the two occupants residing in that portion of the house. Another five to ten officers surrounded the house. The officers did not knock and announce their presence prior to entering the house.
¶11 The six occupants of the house were all arrested, removed from the house, decontaminated and given clean jail clothing. Officers from the Criminal Investigation Division of the Montana Department of
¶12 Appellants were each charged in separate proceedings with conspiracy to manufacture dangerous drugs; criminal production or manufacture of dangerous drugs; criminal possession of dangerous drugs; and possession of dangerous drugs with intent to sell. Appellants each filed motions to suppress the evidence seized during the search of the residence, based in part on the officers’ failure to knock and announce their presence prior to entering the house to execute the search warrant. The District Court denied the motions without an evidentiary hearing.
¶13 Cleveland and Anyan entered into plea agreements with the State, reserving the right to appeal from the District Court’s adverse rulings on their motions to suppress. Cleveland pled guilty to criminal possession of dangerous drugs and was sentenced to a term of five years in Montana State Prison (MSP), with two years suspended. Anyan pled guilty to conspiracy to manufacture dangerous drugs and criminal possession of dangerous drugs. The District Court deferred imposition of Anyan’s sentence for concurrent terms of five years and placed her on probation subject to certain conditions, including payment of $9,000 in restitution for her share of the damages caused to the rented house by the chemicals from the methamphetamine lab. Cleveland and Anyan appealed the District Court’s failure to hold an evidentiary hearing in connection with their motions to suppress and to enter Findings of Fact and Conclusions of Law as required by § 46-13-104(3), MCA. On June 5, 2001, this Court consolidated the two appeals.
¶14 Klein entered into a plea agreement on June 19,2001, wherein he reserved the right to appeal from the District Court’s ruling on his motion to suppress. Klein pled guilty to criminal production or manufacture of dangerous drugs and possession of dangerous drugs with intent to sell. The District Court sentenced Klein to a term of ten years in MSP for the charge of criminal production or manufacture of dangerous drugs and a concurrent term of twenty years, with ten years suspended for the charge of possession with intent to sell. Klein filed a notice of appeal on August 13, 2001.
¶15 On February 7, 2002, this Court issued an Order in the consolidated appeals of Anyan and Cleveland, dismissing the appeals without prejudice and remanding the cases to the District Court for an evidentiary hearing on the motions to suppress and the entry of Findings of Fact and Conclusions of Law. Klein’s appeal was also
¶16 On June 10, 2002, the District Court conducted the evidentiary hearing ordered by this Court. At the hearing, the court received testimony from Sergeant Bardwell, Undersheriff Curry, and Officer Reinschmidt. In addition, the District Court received the deposition testimony of Officer Nichols, who was unable to attend the evidentiary hearing because of his deployment with the National Guard.
¶17 The District Court issued its Findings of Fact, Conclusions of Law and Order denying Appellants’ motions to suppress on July 31, 2002. In its order, the District Court determined that it was reasonable for law enforcement officers to believe that knocking and announcing their presence would be either dangerous, futile, or that it would inhibit the effective investigation of the crime by allowing the destruction of evidence. Hence, the District Court concluded that the no-knock entry was justified in this case and the court again denied Appellants’ motions to suppress. Appellants filed a consolidated notice of appeal on August 8, 2002.
Standard of Review
¶18 We review a district court’s denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Olson, 2003 MT 61, ¶ 11, 314 Mont. 402, ¶ 11, 66 P.3d 297, ¶ 11 (citing State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983 P.2d 916, ¶ 13). Further, the Ninth Circuit Court of Appeals has specifically held that the issue of whether exigent circumstances exist in the execution of a search warrant should be reviewed de novo. United States v. Furrow (9th Cir. 2000), 229 F.3d 805, 811, overruled on other grounds by United States v. Johnson (9th Cir. 2001), 256 F.3d 895.
Discussion
¶19 Whether law enforcement officers’ no-knock entry into Appellants’ house to execute a search warrant violated Appellants’ constitutional rights to privacy and to be free from unreasonable searches and seizures.
¶20 This is an issue of first impression in Montana. Montana has no statutory provisions or case law addressing the knock and announce
¶21 The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The knock and announce rule recognizes the powerful protections afforded by the Fourth Amendment to the sanctity of the home.
Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. The sanctity of a person’s home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person’s home is invaded by the authorities.
United States v. Becker (9th Cir. 1994), 23 F.3d 1537, 1539-40 (internal citations omitted). The knock and announce rule is intended to strike the proper balance between individual rights and the police power of the state. People v. Condon (Ill. 1992), 592 N.E.2d 951, 957, cert. denied, 507 U.S. 948, 113 S.Ct. 1359, 122 L.Ed.2d 738 (1993).
¶22 Underlying the knock and announce rule are concerns for the protection of privacy, reduction in the potential for violence, and the prevention of the destruction of property of private citizens. State v. Bamber (Fla. 1994), 630 So.2d 1048, 1052 (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.8(a) (2d ed. 1987) (hereinafter LaFave)). “There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly.” Richardson v. State (Fla. Dist. Ct. App. 2d Dist. 2001), 787 So.2d 906, 908.
“The fear of a smashing in of doors by government agents is based upon much more than a concern that our privacy will be disturbed. It is based upon concern for our safety and the safety of our families. Indeed, the minions of dictators do not kick in doors for the mere purpose of satisfying some voyeuristic desire*253 to peer around and then go about their business. Something much more malevolent and dangerous is afoot when they take those actions. It is that which strikes terror into the hearts of their victims. The fourth amendment protects us from that fear as much as it protects our privacy.”
Becker, 23 F.3d at 1540 (quoting United States v. Lockett (9th Cir. 1990), 919 F.2d 585, 592 (Fernandez, J., concurring)).
¶23 In Bamber, the Florida Supreme Court explained that as a matter of policy, no-knock warrants are disfavored because of their staggering potential for violence to both the occupants of the residence and the police. Bamber, 630 So.2d at 1050.
“[U]nannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures which he otherwise would not have taken had he known that a warrant had been issued to search his home.”
Bamber, 630 So.2d at 1052 (quoting LaFave, at 272). Several years later, the Florida Supreme Court also stated that
[i]n failing to permit time for a response in executing a search warrant, the police follow a recipe for tragedy.... Awakening citizens from slumber and depriving them of an opportunity to recognize law enforcement’s presence and purpose could result in a misunderstanding with horrific consequences.
Richardson, 787 So.2d at 909.
¶24 The Illinois Supreme Court has also recognized that unexpected and unannounced entries actually create, rather than prevent, deadly encounters between police and citizens. Condon, 592 N.E.2d at 957. Other states and circuits are in accord and have emphasized that a legitimate purpose of knocking and announcing is to protect the safety of all involved. See State v. Curtis (Tenn. 1997), 964 S.W.2d 604, 609; Becker, 23 F.3d at 1540; United States v. Dice (6th Cir. 2000), 200 F.3d 978, 982.
¶25 Because the Fourth Amendment protects property as well as privacy, another purpose of the knock and announce rule is to prevent the needless destruction of property. Dice, 200 F.3d at 982. “[Q]uite obviously a person should ordinarily ‘be allowed the opportunity to voluntarily admit the officer into his home’ instead of suffering damage to his property.” Bamber, 630 So.2d at 1052 (quoting LaFave, at 273). ¶26 In evaluating the scope of the Fourth Amendment right to be free from unreasonable searches and seizures, the United States Supreme Court in Wilson v. Arkansas (1995), 514 U.S. 927, 931, 115 S.Ct. 1914,
[although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.
Wilson, 514 U.S. at 931, 115 S.Ct. at 1916 (internal citations omitted).
¶27 After Sharlene Wilson made several narcotics sales to an informant, law enforcement officers with the Arkansas State Police obtained warrants to arrest her and search her home. The affidavit in support of the warrants stated that Wilson’s housemate, Bryson Jacobs, had previously been convicted of arson and firebombing. On the afternoon of the search, the officers found the main door to Wilson’s home open. As the officers opened an unlocked screen door and entered the residence, they identified themselves as police officers and stated that they had a warrant. They found Wilson in the bathroom flushing marijuana down the toilet. Wilson and Jacobs were arrested and charged with possession and distribution of marijuana and methamphetamine. Wilson, 514 U.S. at 929-30, 115 S.Ct. at 1915-16.
¶28 Prior to trial, Wilson filed a motion to suppress the evidence seized during the search on various grounds including that the search was invalid because the officers failed to knock and announce their presence prior to entering the home. The trial court summarily denied the suppression motion. Wilson appealed to the Arkansas Supreme Court arguing that the Fourth Amendment requires officers to knock and announce prior to entering a residence. That court rejected Wilson’s argument and affirmed her conviction on appeal. The United States Supreme Court granted certiorari to resolve the conflict among the lower courts as to whether the common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. The Supreme Court held that it did. Wilson, 514 U.S. at 930, 115 S.Ct. at 1916.
¶29 In making this determination, the Supreme Court examined in Wilson the history of the common law knock and announce rule noting
[Before the sheriff may enter a man’s house], 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 (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it....
Wilson, 514 U.S. at 931-32, 115 S.Ct. at 1916-17 (quoting Semayne’s Case, 5 Co. Rep. at 91b, 77 Eng.Rep. at 195-96). The Supreme Court noted that the knock and announce principle appears to predate even Semayne’s Case, which is usually cited as the judicial source of the common-law standard. “Semayne’s Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was ‘but an affirmance of the common law.’ ” Wilson, 514 U.S. at 932 n.2, 115 S.Ct. at 1917 n.2 (quoting Semayne’s Case, 5 Co.Rep. at 91b, 77 Eng.Rep. at 196).
¶30 The Supreme Court noted in Wilson that several prominent founding-era commentators agreed on the basic principle of knock and announce:
According to Sir Matthew Hale, the “constant practice” at common law was that “the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door.” See 1 M. Hale, Pleas of the Crown 582. William Hawkins propounded a similar principle: “the law doth never allow” an officer to break open the door of a dwelling “but in cases of necessity,” that is, unless he “first signify to those in the house the cause of his coming, and request them to give him admittance.” 2 W. Hawkins, Pleas of the Crown, ch. 14, § 1, p. 138 (6th ed. 1787). Sir William Blackstone stated simply that the sheriff may “justify breaking open doors, if the possession be not quietly delivered.” 3 Blackstone 412.
¶31 The Wilson Court further noted that while the common law principle of announcement is “embedded in Anglo-American law,” the Court had never before squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment. However, the Supreme Court determined in Wilson that
[g]iven the longstanding common-law endorsement of the practice of announcement, we 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 search and seizure.
Wilson, 514 U.S. at 934, 115 S.Ct. at 1918. Hence, the Court held that the common-law knock and announce principle does form a part of the Fourth Amendment reasonableness inquiry. Wilson, 514 U.S. at 934, 115 S.Ct. at 1918.
¶32 The Court further held, however, that not every entry must be preceded by an announcement. Rather,
[t]he Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. ... [T]he common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.
Wilson, 514 U.S. at 934, 115 S.Ct. at 1918 (citing Ker v. California (1963), 374 U.S. 23, 38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726). While early common law did not require announcement in certain circumstances including felony arrests, that principle was gradually applied to cases involving felonies, yet the courts acknowledged that the presumption in favor of announcement necessarily would give way to countervailing law enforcement interests. Those interests included circumstances presenting a threat of physical harm to officers, the fact that an officer is pursuing a recently escaped arrestee, and where officers have reason to believe that evidence would likely be destroyed if advance notice were given.
¶33 However, rather than giving a “comprehensive catalog” of the relevant countervailing factors, the Wilson Court left to the lower
Exigent Circumstances
¶34 Exigent circumstances have been defined as
“those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”
United States v. Zermeno (9th Cir. 1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir. 1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). The government bears the burden of proving that exigent circumstances existed. United States v. Bates (6th Cir. 1996), 84 F.3d 790, 794. An unjustified yet sincere belief in exigent circumstances does not justify non-compliance with the knock and announce rule. United States v. Mendonsa (9th Cir. 1993), 989 F.2d 366, 370 (citingMcConney, 728 F.2d at 1206). Unless exigent circumstances exist, the failure of law enforcement officers to knock and announce their presence will render the evidence procured during the ensuing execution of the search warrant inadmissible. Bates, 84 F.3d at 795.
¶35 There are two types of exigencies, those that are foreknown and those unexpected that arise on the scene. Dupras, 980 F.Supp. at 347. The determination of whether an unannounced entry is reasonable must be made under the particular circumstances of each case. Dupras, 980 F.Supp. at 347. In the case before us on appeal, all of the factors that officers actually deemed exigent were actually known well in advance of applying for the search warrant. The SWAT teams became involved in this investigation almost two weeks prior to
¶36 Moreover,
while peril to officers or the possibility of destruction of evidence or escape may well demonstrate an exigency, mere unspecific fears about those possibilities will not. Were they enough, the knock and announce statute would have been judicially amended to exclude virtually all narcotics-based cases. It has not been.
Becker, 23 F.3d at 1541. In fact, in Richards, the Supreme Court held that the Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement in felony drug investigations. Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22.
¶37 In Richards, law enforcement officers obtained a warrant to search Richards’ motel room for drugs and related paraphernalia. One officer, dressed as a maintenance man, knocked on the door and stated that he was with maintenance. With the chain still on the door, Richards cracked it open, but slammed it closed again when he saw a uniformed officer standing behind the “maintenance man.” After waiting two or three seconds, the officers kicked in the door. They claimed at trial that they identified themselves as police as they were kicking in the door. The officers caught Richards trying to escape through a window. They found cash and cocaine hidden in plastic bags in the bathroom ceiling. Richards, 520 U.S. at 388-89, 117 S.Ct. at 1418-19.
¶38 Richards sought to have the evidence from his motel room suppressed on the ground that the officers failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion concluding that the officers could gather from Richards’ behavior that he knew they were police officers and that he might try to escape or destroy evidence. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified the officers’ decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. The Wisconsin Supreme Court affirmed concluding that it was reasonable to assume that all felony drug crimes would involve “an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police.” Richards, 520 U.S. at 390, 117 S.Ct. at 1419
¶39 The United States Supreme Corut disagreed and determined that the Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for felony drug investigations. Rather, the Supreme Court held that to justify a no-knock entry, 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 effective investigation of the crime by, for example, allowing the destruction of evidence. Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22.
¶40 The Supreme Court also held that creating exceptions to the knock-and-announce rule based on the “culture” surrounding a general category of criminal behavior presented two serious concerns: (1) the exception contains considerable overgeneralization as not every drug investigation poses substantial risks to the officers’ safety and the preservation of evidence; and (2) the reasons for creating an exception in one category can, relatively easily, be applied to others and thereby render meaningless the knock-and-announce element of the Fourth Amendment’s reasonableness requirement. Richards,