David Doran v. Dennis Eckold, in His Official Capacity as President of the Board of Police Commissioners of Kansas City

ceived a more favorable sentence with the We conclude that Ziesman satisfy cannot Booker error eliminated making the his burden under the third factor. Olano advisory.” Guidelines Id. at 551. We need not reach the fourth factor. Ziesman’s plain sentence was not error Ziesman’s base offense level of 36 under under Booker. § U.S.S.G. 2D1.1 was based on the 2.5 pounds of methamphetamine mixture ad- III. CONCLUSION Ziesman, mitted to by plus the additional We 2,250 conclude that there grams was sufficient of pseudoephedrine that the evidence support jury’s district verdict and court found attributable to Zies- that the district court deny- man. The did not err in three-level manger-or-supervi- ing Ziesman’s motion sor enhancement and the second the two-level dismiss ob- superseding struction-of-justice indictment. enhancement We resulted also conclude in a total offense level of 41. district court did not err in Ziesman’s criminal history category I, instructing jury on a leading lesser included offense, sentencing range Guidelines of admission and exclusion of However, months. certain or in statutory evidence denying combined a motion for prison maximum term available mistrial prosecutorial under the based on miscon- two counts of conviction duct. was 300 The months.4 district court applied the Guide- Accordingly, the district properly, court lines sentenced and Ziesman cannot show Ziesman to a 300-month plain term of imprison- error resulting from application ment. of the Guidelines a mandatory, rather than advisory, Therefore, fashion. af-we

After carefully reviewing the record on firm. appeal, we conclude that Ziesman cannot

meet his burden of demonstrating a rea

sonable probability that the district court imposed

would have a more favorable sen

tence under advisory Guidelines. Due to

the statutory máximums, Ziesman’s sen tence already DORAN, months less than the David Appellee, Plaintiff - minimum applicable Guidelines v. range. The district court gave no indica ECKOLD, Dennis capaci his official that, tion given discretion, broader it ty as President of the of Board Police would have pronounced an even shorter City, Commissioners of al., Kansas et sentence. “[W]here effect the error Appellants. Defendants - on the in the result district court is uncer No. 03-1810. tain or indeterminate-where we would speculate-the have to appellant has not United States Court Appeals, met his burden of showing reasonable Eighth Circuit. probability that the result would have been Submitted: Oct. 2004. different Pirani, but for the error.” F.3d at 553 Filed: June (quoting United 2005. States Rod riguez, Cir.

2005)). statutory maximum imprison- term agent federal is 60 months. 18 U.S.C. ment for manufacture of § 1001. Applying 5G1.2(d), § U.S.S.G. 841(b)(1)(C). § months. 21 U.S.C. imposed district court the maximum term on making maximum for a false statement to a each count to consecutively. run City, Kansas Quirk, argued, E.

William MO, appellant. WA, Seattle, Fisher, argued,

Jeffrey L. appellee. LOKEN, Before Judge, Chief ing Doran’s excessive force claim. Howev- HEANEY, WOLLMAN, MORRIS er, the district court ruled as a matter of ARNOLD, MURPHY, SHEPPARD BYE, law that jus- circumstances did not RILEY, MELLOY, SMITH, COLLOTON, tify the result, As a BENTON, GRUENDER and Circuit jury instructions on the illegal entry claim Judges, en banc. against Officer Grant and the failure-to- train against Sergeant claim Greenwell vir- LOKEN, Judge. Chief tually directed a verdict in favor of Doran At p.m. 10:00 on the evening August on those claims. The jury returned a ver- 11, 1998, City police Kansas executed a dict in excess of two million for dollars warrant to search the home of David Do- Doran on those claims and on his claims ran for drugs contraband, and using other against Board, finding that Doran’s “dynamic tactic entry.” called Officer injuries were the direct result of the Ty Grant, serving officer,” as “ram yelled Fourth Amendment violations. The dis- “Police, warrant,” search immediately and trict court entered judgment on this ver- hit ram, the front door with his breaking Grant, Greenwell, dict. and the Board on the third hit. Officer Mark Sumpter as appeal, arguing inter alia that exigent cir- point man entered house before its justified cumstances the no-knock entry. occupants had time to answer the door. agree We and therefore reverse. Sumpter When reached the door- kitchen way, he saw running Doran him toward Background. I. pointing a handgun. Sumpter testified July 1998, In City Kansas yelled, “Police, that he Police re- search get down,” ceived anonymous an and fired when Doran about tip did criminal not lower weapon. twice, activity his allegedly Doran hit occurring was at sustain- the Doran injuries. serious He home. tipster commenced this alleged: action § under 42 U.S.C. asserting (cid:127) methamphetamine that was being Fourth damage against Amendment claims manufactured at the house to be Officer Sumpter force; for use excessive searched; officer, the investigating Wesley William- (cid:127) that was selling crack cocaine son, illegal search; for an warrant Officer and the front Grant for illegal entry; Sergeant Eric throughout door day; Greenwell for supervise Grant; failure to (cid:127) were stored dresser and the Board of Police Commissioners for drawers throughout house; failure to train its officers regarding the (cid:127) guns kept bedroom; were in the Fourth Amendment restrictions on no- and knock entries for and deliberate indiffer- (cid:127) 26-year-old Doran’s son Joseph ence to a custom and practice of no-knock lived in the house recently and had entries. been arrested for possessing a sawed- trial, At Doran testified he asleep off shotgun. when he heard ramming. Thinking the Narcotics Detective Wesley Williamson noise was a fight break-in or a on the front location, verified the house’s determined porch, grabbed he a pistol from under his parked cars at that pillow, location kitchen, reg- ran into saw laser lights istered family, to the Doran it police, realized was the collected bent bags to set of trash in his on the front of gun floor when he residence. was shot. four-day trial, trash, After a jury fifty he found bags sandwich found in favor Sumpter, reject- of Officer out, with the corners cut a common way drugs. Doran illegal amine lab nor other and distribute package traffickers offense. This charged residue narcotics; methamphetamine sandwich plastic bags, three plastic followed. two lawsuit bottle; empty corners, pill and a bag that contains product Rulings “Dristan”

box Court’s II. District manu- often used pseudoephedrine, Appeal. the Record on and mail methamphetamine; facture trial, all defendants moved Prior to belonged trash tending to confirm on various summary judgment Doran’s re- Detective Williamson Dorans. here, the court § claims. As relevant application in a warrant facts cited these summary Williamson Detective granted Do- the to search a warrant and obtained illegal claim of judgment on Doran’s ran home. had search, concluding that Williamson the warrant of The task to anonymous tip the sufficiently verified Department’s Street the Police to assigned objectively “an reasonable belief have whose Unit, unit specialized Narcotics probable of cause the existence war- execute search is to function primary warrant.” Doran of a search issuance Sergeant houses. rants, usually drug on remaining against claim Wil- his dropped en- charge of the Unit’s inwas Greenwell execution of the war- for unlawful liamson warrant, executing the Before try team. defendant, William- Eliminated as rant. and war- the warrant reviewed Greenwell agent of an by then had become son—who illegal the affidavit, learning about rant Tobacco, Alcohol, of Bureau the federal tip. anonymous activity alleged the testify at trial. and Firearms —did Wil- Detective Sergeant Greenwell Sumpter court Officer house to The district denied by drove the liamson then any excessive “determine on Doran’s summary judgment and to verify its location Grant, on this informa- concerns.” Based also denied tactical claim. court force methamphet- with experience and his summary judg- tion Greenwell, Board and the concluded labs, Greenwell Sergeant amine the no- relating to Doran’s claims ment on entry and high-risk abe that this would warrant was the knock manner which dynamic make a team to his instructed executed, concluding “there is insufficient justi- circumstances exigent evidence of entry August the evening of and announce the with knock fy On the dispensing few assembly point a gathered at team fact were material and there requirement,” of Because Doran home. from the blocks entry team an- the over whether disputes methamphet- the hazards associated knocked, apprecia- nounced, waited fire labs, arranged Greenwell amine entering. before period ble an ambulance pumper and department a fi reserved court Though the district of assembly point. Members at wait the knock-and-announce on Doran’s ruling nal other than Officer Grant team entry the disputes, fact potential of because claims from the risk to reduce respirators wore the recognized properly court the Sergeant After Green- chemical fumes. circumstances, like exigent question team, pro- the team well briefed rea Amendment Fourth issue of ultimate and executed house ceeded Doran’s sonableness, issue of law is an after Offi- shot soon Doran was warrant. Cooper, v. States See United court. po- the house. The Sumpter entered cer (8th Cir.1999); States United F.3d tending after completed the search lice Mattison, Cir. marijuana Doran, finding one ounce during 1998). Therefore, before and both methamphet- room but neither the son’s trial, the district court excluded evi- precisely more what not in evidence dence relevant to question trial record presented “has been to me.” circumstances, exigent part even it was Therefore, we will review same record summary judgment record on the that the district court in mak- considered issue, if it unduly prejudicial was either or ing its legal determination of no not relevant to fact issues to be decided circumstances.1 jury. example, For because the court tending excluded to challenge evidence Controlling III. Legal Standard. lawfulness of the valid search warrant and warrant affidavit were not Arkansas, In Wilson v. the Su offered Similarly, trial. preme Court held for the first time that “DRAGNET” report summarizing the the “common-law ‘knock and announce’ anonymous tip was not admitted into evi- principle part forms a of the reasonable dence because it a potentially contained inquiry ness under the Fourth Amend prejudicial reference to the son’s alleged 927, 929, ment.” 514 U.S. possession arrest for of a sawed-off shot- (1995). 131 L.Ed.2d 976 The Court cau gun. tioned, however, Fourth “[t]he

The court made final ruling its on Amendment’s flexible requirement the of rea exigent during circumstances issue in- the sonableness should not be to read mandate structions conference held at close of rigid a rule of ignores that announcement the trial evidence. pre- Consistent its countervailing law enforcement interests.” trial judgment summary ruling, the dis- 934, Id. at 115 S.Ct. 1914. The Court trict court “ruled as a matter of law that noted examples of may circumstances that there were exigent not circumstances justify an entry, unannounced such as a permitted which the waiver of the knock or threat of physical likely or violence rule, wait and we’ll not be submitting that evidence, destruction of declined but jury.” In making ruling, .this comprehensive a “attempt catalog of the court declared that it considered “all of the relevant countervailing factors.” Id. at evidence which admissible during the 935-36, 115 S.Ct. 1914. trial, course of as well as Plaintiffs Exhibit applied Court has general prin- this tip report] [the DRAGNET ... all [and] ciple three subsequent eases. In Rich- that, fact, the evidence has been Wisconsin, ards v. rejected the Court a presented to party objected me.” Neither state supreme court’s adopt decision to to the court considering evidence that was exception blanket to the Fourth only Amend- presented during pretrial pro- motion ment’s ceedings requirement knock-and-announce legal to decide the issue of wheth- police when exigent er execute justified search warrant circumstances the no- felony entry. Indeed, drug investigation. knock 385, given the need 520 U.S. withhold irrelevant or S.Ct. unduly prejudicial 137 L.Ed.2d 615 (1997). information from jury’s consideration, Though acknowledging “that felo- agree we with the ny district approach drug investigations court’s may frequently issue, to this though our appeal present task on circumstances warranting no- would be easier the court entry,” had defined knock the Court that a held case- reason, 1. For grant appellee's this we motion Plaintiff's presented Exhibit materials judicial to take notice of the search warrant by and considered the district court at the affidavit, supporting appellants’ summary judgment mo- stage but not admitted at supplemental tion to file a appendix contain- trial. 31, 41, 124 S.Ct. nounce entries.” particular of the analysis facts by-case (2003). Banks, required: 157 L.Ed.2d 343 entry is nonetheless executing a warrant to search entry, “no-knock” justify a In order to suspi- premises to be reasonable cocaine arrived at must have a their announcing knocking suspicion jus no reasonable cion searched with circum- particular under presence, only entry and waited tifying a no-knock futile, or stances, dangerous or would twenty after the initial or seconds fifteen investi- inhibit the effective it would entering. Emphasizing knock before example, by, crime gation totality of the circumstances that the again of evidence. allowing destruction to determine whether examined must be proba- to a opposed standard —as This exist, the Court held exigent circumstances ap- requirement ble-cause —strikes disposal drug the risk of imminent legitimate balance between propriate justified the forcible exigency at issue enforcement concerns law 40, 124 521.2 Id. at and the warrants of search execution affected interests privacy individual IV. Discussion. showing is entries. This no-knock explained court bases The district high .... ruling in for its circumstances (citations omit- Id. post trial mo- denying defendants’ opinion ted). that the to hold The Court went on po- emphasized The court tions. was reasonable entry at issue not obtain a no-knock warrant lice did of the state judgment affirmed the home. The court also the Doran search court. as factors the additional following cited Ramirez, v. the Court States In United cir- exigent its supporting conclusion more holding that a Ninth Circuit reversed justify Officer Grant’s did cumstances be shown to exigency” must a “mild than entry: no-knock property in entry which justify a no-knock 69-70, 65, 118 S.Ct. destroyed. 523 U.S. is (cid:127) they police the as The facts known (1998). Ramirez, In 992, 191 140 L.Ed.2d house were approached the police told informant confidential a reliable they applied when facts known same escapee prison he had seen violent for the warrant. that Ramirez home and at Ramirez (cid:127) did not come from anonymous tip The in guns have a stash of might informant, and a reliable confidential police The Court held garage. his or not verified the information suspicion’ that “certainly had ‘reasonable corroborated. presence announcing their knocking and (cid:127) occurring drug sales were tip The themselves or dangerous to might be house was not corrobo- at the Doran others,” “clearly reasonable” so it was buy or surveil- by a controlled rated during the no- window garage break lance. 71-72, 992. at 118 S.Ct. Id. knock (cid:127) drug resi- uncovered trash search The Banks, the v. Finally, in States United linked the trash due, but no evidence “four- the Ninth Circuit’s rejected Court to Doran’s house. vetting knock-and-an- part scheme Banks, 42- 73, 540 U.S. at Ramirez, § 3109. Accord at U.S.C. in 2. Court noted The Thus, contrary 43, our state- 992, 124 S.Ct. 521. in Wilson that its decisions Tavares, 223 F.3d construing” ment in United States guideposts in "serve as Richards Cir.2000), is overruled. 916 n. 5 exception exigent circumstances (cid:127) The did not check the criminal police “against tection unreasonable searches wife,

history of Doran and his which and seizures.” would have no prior arrests.3 revealed Richards, Supreme Court con- (cid:127) allegation that Doran’s son was firmed principle upheld this when it a no- recently possession arrested for of a knock entry based on what the officers shotgun sawed-off was not verified. encountered when executing the (cid:127) entry team conducted no surveil- even though issuing magistrate had lance to determine the son was request denied a a no-knock warrant. lights home or were on before the 1416; 520 U.S. at 395-96 n.& 117 S.Ct. nighttime entry. Banks, 36-37, see 540 U.S. at 124 S.Ct. (cid:127) routinely Officer Grant operated course, may Of state law require, by ram as he did in this case—announce judicial decision, statute or law en- “police, warrant,” search and simulta- forcement officers who have reason to be- neously in break with the ram without exigent lieve that justify circumstances waiting otherwise or knocking for a request include a for that response. authority the warrant application. See We review district court’s ex State, Davis v. 383 Md. 859 A.2d igent ruling circumstances de novo. Coo (2004) (collecting conflicting au- per, 168 at F.3d 339. The district court’s States). thorities from various But for analysis of exigent circumstances issue Fourth purposes, Amendment the relevant contrary Supreme Court’s knock- question is whether the have reason- significant and-announce decisions re suspicion able circumstances spects. First, court district erred they the time execute warrant. emphasizing the absence of no-knock au Second, district court erred thority in the search warrant. As the emphasizing that the facts known to the years Court said some ago in Dalia v. they as approached the Doran house States, 238, 257, United U.S. were the same facts known when (1979): L.Ed.2d applied sure, many warrant. To be Nothing in language of the Constitu- exigent circumstances cases have turned tion or in this Court’s decisions inter- on facts that police unfolded as the ap that preting language suggests that ... proached searched, the to be house or search warrants also must include a they See, after initially knocked. e.g., specification of the precise manner in Richards, 388-89, U.S. S.Ct. which are to be executed. On the 1416. But the Fourth Amendment analy contrary, generally it is left to the dis- sis turns on totality of the cretion of the circum executing officers to deter- stances, including gathered by mine facts the details of proceed how best to police performance they applied with the before search au- warrant. by thorized subject of See United States v. Scroggins, course warrant — general to the pro- Cir.2004). Fourth Amendment The district Doran, Regarding testify, Mrs. who prostitution.” did not As the motion in and/or limine the court's appears statement to be based on granted, was history the criminal facts are not by assertions in various memoranda filed Do- in the undisputed record on appeal. It is that attorneys, ran's who also filed a motion in police investigators did not do criminal September limine in some three months history checks on the Dorans and their son trial, seeking before excluding an order evi- prior obtaining to the search dence that Mrs. Doran and her sister "had warrant. involving illegal criminal records attended execution exigent circumstances require would approach court’s authority carrying whenev- out his of the warrant before request application a warrant basis for testified that he assignment. er the Greenwell a no-knock Such might justify of ram offi- assigned often the role Grant of the excessive use encourage might rule Thus, high-risk entries. Grant’s cer contrary to be no-knock tactic would employed dynamic that he testimony applying the decisions Supreme Court assigned he was to entry tactic whenever reasonableness stan- Amendment’s Fourth nothing prev- ram officer said about the Therefore, prior if the facts known dard. of the alence or reasonableness tactic a no-knock obtaining justify to warrant Amendment did not establish a Fourth contrary if facts are discern- entry, and no violation. the war- to the officers execute able who faulty legal In addition these rant, constitutionally entry is the no-knock court’s cir premises, the district reasonable. analysis weight undue gave cumstances Third, court conclud the district record, pretrial of the portions certain by “the prior investigation ed that The court focused ignoring while others. inadequate and then attributed was police” incomplete to be an on what it considered Narcotics to the Street inadequacies these anonymous investigation verify tip. solely to execute brought Unit officers sig the most But court aside brushed analysis This the warrant. trash corroborating evidence—the nificant proper in decid gross would be conduct “there was no evidence search —because in a evidence suppress a motion to bag in drug or the trash residue out arising of Doran prosecution criminal found linked to the which it was liability per §But of the search. four was that residence.” The evidence whether the question here is sonal. in front of bags were from trash collected Sergeant conduct of Officer Grant drug contained bags house. The Doran’s constitutionally unreason Greenwell was pieces of mail addressed residue and must question able. The answer to did Dorans. Even Detective Williamson principle account the settled take into drug mail and the testify may rely on infor officers law enforcement bag, it law en came from the same residue provided mation others long as the reli the trash search community, wrong so conclude that forcement States ance is reasonable. See United critical aspects not corroborate did 221, 232, 105 Hensley, daily 469 U.S. tip. tip reported anonymous McCollan, (1985); Baker v. house, 83 L.Ed.2d suggesting the from the drug sales 137, 145-46, of narcotics quantities presence of small Nutsch, (1979); L.Ed.2d 433 Brown con readily the trash disposable; that are Cir.1980). (8th 758, F.2d 764-65 . bags with the multiple tained sandwich reported on-going tip cut. The corners Fourth, on court relied the district methamphetamine; of manufacture “routinely oper the fact Officer Grant different containers contained six trash But in this case.” the ram as he did ated More residue. methamphetamine to the decision Sergeant Greenwell made that the trash over, the court’s statement evaluating entry after make the any the chem of of no evidence “contained Officer assigned all the circumstances to make metham apparatus icals or used Having of officer. the role ram Grant trash wrong. The simply phetamine” was Greenwell, Sergeant Grant by been briefed product con- empty of contained an box verify that duty to had no constitutional taming pseudoephedrine, methamphet- methamphetamine use manufacture course, precursor. amine Of one box of volatile, combustible, very are ha[ve] presence Dristan does not confirm the aof fire, explosion, caused things of that na- identify J.L., tion ruling L.Ed.2d 254 anonymous tip was “reliable in its asser- meth lab. But the The trash district court’s 529 U.S. was nonetheless illegality, a determinate analysis (2000). 266, 272, tended to show that the fact-finding underlying just person.” 120 S.Ct. clearly in its tendency to circumstances erroneous. Florida v. 1375, ment is tective train the ture. to help detectors ... We ^[*] carry specific equipment. make our superseding v [officers] tell ^[*] entry us types our v evacuate ... safer ... and we personal of the environ- % equipment those pro- ^[*] Q. you [H]ave ever been a lab where There remains the question whether exi- somebody destroy tried to it? gent justified Sergeant circumstances Greenwell’s decision to use the no-knock A. Yes. been in We’ve a situation be- executing method of the warrant to search suspects fore where could flee and knock Doran’s house. Before the war- parts over of the lab.... Sometimes rant, Greenwell reviewed the warrant and they destroy the lab in an attempt affidavit, warrant interviewed the investi- cause harm to us on the team and officer, gating drove the Doran trying destroy sometimes evi- house. This awas reasonable level of dence .... research for the head of a brought team Q. Okay. any Is there gas kind of dan- to execute the warrant. Greenwell ger? learned that the house suspected Gas, A. phosphine there’s a gas dan- harboring a clandestine ger .... product [I]f cook the too justified lab. That fact has no-knock en- long, [methamphetamine can emit labs] in prior tries cases.4 Consistent with phosphine gas, which is highly deadly. cases, these Greenwell testified at trial: Greenwell also learned that ongoing drug Q. dangers What kind of you do en- street reported sales had been and that counter in terms of safety officer when weapons house, numerous you kept you enter ... presume what to be a justified meth facts have lab? no-knock entries in numerous cases.5 Well, Finally, he A. learned besides the obvious danger of recently Doran’s son had you and firearms ... been arrest- have a lot of problems added .... ed for possession shotgun. chemicals and sawed-off types of products that Though individuals tip this later turned out to be Tucker, 1259, 4. See United States v. 313 F.3d 5. See United Washington, States v. 340 F.3d (10th Cir.2002) (nighttime 1265-66 222, (5th Cir.2003), denied, execution cert. 540 U.S. justified by public safety exigency); United 1081, 942, (2003); 124 S.Ct. 157 L.Ed.2d 757 Keene, 1164, States v. 915 F.2d Gambrell, 927, United States v. 928- Cir.1990) (destruction evidence), cert. de (7th Cir.1999), denied, cert. 528 U.S. nied, 111 S.Ct. (1999); 145 L.Ed.2d 236 Matti (1991); L.Ed.2d 1084 Spinel United States v. son, 410-11; 153 F.3d at United States v. li, (2d Cir.1988) F.2d (public 848 29-30 758, (7th Singer, Cir.1991); 943 F.2d 761-63 Walsh, safety); United States v. 299 F.3d cf. Baker, 711, (Mo. State v. 103 S.W.3d 717-19 729, (8th Cir.2002) (warrantless 733-34 2003) (en banc). by public search safety exigency), authorized denied, 1066, 617, cert. 537 U.S. 123 S.Ct. 154 (2002). L.Ed.2d 554

967 practice his failure-to-train custom inaccurate, suspicion that reasonable against Board of Police Com resident claims dangerous potentially armed should have been submitted justified no- missioners not frequently present has will jury. City v. Freder See Roach knock entries.6 of (8th icktown, 294, F.2d 297-98 Cir. 882 in as we must do together, Taken as 1989). judgment of the district court circumstances, totality sessing the of reversed, and the is remanded with case information, plus this we conclude complaint. directions to dismiss the run, a rea established trash Williamson’s exigent of circumstances. suspicion sonable HEANEY, Judge, Circuit with whom suspicion show reasonable The burden to ARNOLD, BYE, SHEPPARD MORRIS high.” “is not exigent of circumstances SMITH, join, Judges, Circuit 394, Richards, 117 520 S.Ct. U.S. at dissenting. case, brought the head of a team In this dissent, primarily I respectfully the warrant learned to execute panel stated eloquently reasons so suspected of to be house searched by Rich- majority opinion, Judge authored harboring a clandestine Eckold, ard Arnold. See Doran v. 362 S. lab, on-going street a stash of (8th Cir.2004). In that opinion, F.3d 1047 sales, weapons, potentially and a multiple fully appellants’ Judge Arnold considered constitutionally It was violent resident. the district court erred argument Greenwell, Sergeant reasonable it ruled as a matter of law that when team, rely on what special of this head justify not exigent circumstances did reading the warrant docu learned from he the Dorans’ home. into investi interviewing from ments and significance that the Su- Recognizing officer, It Williamson. gating Detective upon the Fourth preme placed has Court for Officer constitutionally reasonable home, in one’s right to privacy Amendment duty ram assigned his as perform Grant to that: he concluded carry out as had been trained officer he make required should be dynamic “the high-risk task in cases of whenever the showing making exigency] [a “In the determination entries. entry is has been of a no-knock the Fourth Amendment reasonableness whether proving knock and an exi- challenged.” a failure to violated burden so, nounce, there is high.” must reasonable not Even gency we remember “is burden, v. United States and we do polestar.” ness is our flesh to the some (8th Cir.), Mendoza, 712, cert.. sufficiently 717 demonstrat- 281 F.3d think the 1004, 515, denied, 154 123 S.Ct. 537 U.S. circumstances existed ed that (2002). un Accordingly, the entry” L.Ed.2d 401 into the “dynamic justify their and the entry claim Grant against lawful home. claims entry and

unlawful failure-to-train (citations (alteration original) Id. at 1051 have been should not against Greenwell Wisconsin, omitted) v. (quoting Richards jury. submitted to the 1416, 385, 117 137 L.Ed.2d 520 U.S. S.Ct. (1997)). Judge Arnold was I believed did 615 individual defendants Because the then, so now. and continue to believe right rights, constitutional not violate Doran’s 1210, Cir.1998); 643, (8th Unit 1213-14 Nguyen, F.3d 160 F.3d States 6. See United v. 237, (8th (8th Cir.2001); Gay, Murphy, States v. United ed States Cir.1995), Cir.2001), denied, de cert. F.3d 516 U.S. rt. ce nied, (1996). 134 L.Ed.2d 109 Weeks, (2001); United States v. L.Ed.2d 735 Doran, majority The en that younger banc holds Ser- in his mid-twenties at search, geant Ty Eric Greenwell and Officer Grant the time of the lived at the house. in There is reasonably concluding acted that exi- no evidence that officers observed any justified drug traffic at gent circumstances their no-knock residence. There is entry any no evidence that officer en- According into the Dorans’ home. record,7 gaged buy a controlled at entry the residence. their was based on a And, importantly, there is no evidence that pre-search briefing, a with conversation any anything officer observed that Williamson, would Wesley Detective and their in- point to the of methamphet- existence a dependent review the search warrant it, amine Judge put lab. As Arnold and affidavit. This investigation made Here, police clear that the information that appellants supported safety their justified concern pointing following now contend the no-knock evi- anonymous anonymous, on dence: tip was based from a uncorroborated tip that person buying no the Dorans were previous record of reliabili- making methamphetamine; ty. tipster alleged the uncor- Doran was roborated statement making younger methamphetamine, as well as deal- Mr. Doran had been illegal arrested for ing methamphetamine crack cocaine possession; firearm the uncorroborated day all in face-to-face transactions from statement guns there were in the the front door of his house. tipster house; and drug residue a trash son, bag asserted that Doran’s who lived at the Thus, outside the home. house, there was al- recently pos- had been arrested for certainty most no to most of the infor- session of a shotgun. Despite sawed-off mation the reportedly “knew.” the obvious ease with which officers could Had the done even some investi- have confirmed allegations whether the gation or they surveillance would have true, tip there was an utter fail- had a understanding better of whether ure to do so. There is no evidence in the posed security justi- the Dorans risk any record that officer checked the Doran fying Instead, family’s history criminal to see whether very information, relied on sketchy they had dealt controlled substances unreasonable, rebanee we find and out- past or a history had of violent acts. weighed by privacy interest There any is no evidence officer checked Fourth Amendment protect. is meant to the younger history Doran’s arrest to see Doran, 362 F.3d at 1053. anonymous if the tip was regard- accurate shotgun. the sawed-off There is no court, Before the en banc appellants ar- any evidence that officer verified gued whether anonymous tip was suffi- During argument, question oral trial." Doran Apparently, at 1055. Chief rely raised as solely Judge to whether we should changed on Loken has now his mind. the trial record or whether we Compare, should follow (approving ante at 962 the district the district pre-trial court and consider the court's consideration of matters outside the strong record as well. While a case determining can be trial record in circum- former, Arnold, exist). Judge writing made for the stances we If were to limit ourselves original panel, record, considered the entire to the trial a no-knock search here record, agreed and I with that clearly decision. I would only unreasonable: evi- continue to do so here. In his jury dissent to the dence before the was that Greenwell and panel opinion, Judge Chief Loken stated that Grant were aware that the information about failing specify "the court erred in possibility the rec- lab and ruling ord on which weapons its was based and on in the Doran house came from an relying uncorroborated, pretrial on inferences drawn from anonymous tipster with no proceedings proved rather than on the reliability. facts record of corroborated, States, Cir.2003) ciently directing us to four 339 F.3d bags seized from outside the Dorans’ (associating trash the intense smell of ether with bags, according Inside these to lab); home.8 methamphetamine an active United Williamson, fifty bags he found sandwich Francis, v. States 327 F.3d 732 n. 7 cut, the corners which he asserted (8th Cir.2003) (noting that in items seized packaging. consistent with narcotics up methamphetamine clean lab “includ- methamphetamine He also found residue ed coffee filters stained phospho- with red bottle, plastic bags, pill on two a and three rous, juice jars filters, 1,000 with coffee a pieces plastic. Lastly, he ob- other flask, ml Pyrex hydrochloric a bottle of single empty a box of cold medi- served acid, 1,000 another ml half full flask with a cation, pseudoephedrine. which contained liquid, Vitablend, a triple-neck bottle of panel noted in the Judge As Arnold Pyrex containing actively-reacting beaker decision, although may officers have sus- liquids, large plastic baggie that con- (based anonymous pected tip) on an stains, tained coffee filters with red miscel- Doran was involved the manufacture of hoses, tubing laneous of PH bottle methamphetamine, “the did no cor- acid, paper, jars, empty Mason muriatic roborating investigation to show that the funnels, laboratory multiple Pyrex 500 ml selling making or Dorans were either flasks, funnels, Pyrex miscellaneous meas- methamphetamine. [appellants] While material, acetone, uring and other chemi- test, evidence, to point the trash such containers”); Walsh, cal 299 F.3d at 734 use, best, points certainly does not (“Here, strong smell of ether and the any potential of the demonstrate concerns equipment and residue car- found lab, alleged raised meth which port suggested ongoing [methamphet- might, properly developed, justify disre- shed.”). manufacture in amine] this garding the knock-and-announce rule.” case, suggestion any- there was no Doran, 362 F.3d at 1052 n. 3. Even if the thing pointed in the trash to an active bag may sug- contents of the trash have methamphetamine lab in Dorans’ gested selling Doran was metham- home, typically that odors that emanate phetamine, there was no evidence whatso- evident, from or that offi- active labs currently that Doran operating ever any cers observed of the attributes of a methamphetamine active lab. Our methamphetamine during lab their investi- gone great lengths cases have to detail gation. type of evidence linked the existence opinion, majority In footnote 4 of its See, e.g., of an active v. lab. United States proposition cites a number of cases for the (8th Cir.2005) Lloyd, 396 F.3d suspicion “harboring a clandes- (noting strong smell of ether is justi- tine lab ... has methamphetamine methamphetamine indicative of an active A fied no-knock entries.” Ante at 966. Dishman, lab); v. United States careful review of these cases makes clear (8th Cir.2004) (identifying cans of that each of them involved the reasonable anhydrous fuel and ammonia as Coleman suspicion of an active precursor products to the manufacture of instance, methamphetamine); Kleinholz v. lab. For United States United Doran, original panel, appellants pri- litigation. F.3d at 1050 8. Before the See (“The marily argument focused on the lack of warrant and warrant affidavit were not their part proximate support damage offered into evidence and are not cause to sought appeal.”). bags and party supplement awards. record on The trash their Neither pretrial part of this rec- the record with the material that the contents have never been majority dispositive stage ord. finds until this (10th Cir.2002), Tucker, information. The same based on reliable 313 F.3d 1259 for Doran’s case. cannot be said properly officers entered whether an knocking was not even without first majority’s I also take issue with the view night case involved a appeal; issue on and cannot be liable that Greenwell Grant so, night-time Even time search. injuries, their Doran’s severe because for had permitted because officers search was “dynamic entry” a decision effect on informa suspicion, a reasonable based provided by on information William- based of the including tion direct observations majority cites States v. son. The United of metham purchases defendant’s recent 221, 675, 105 83 Hensley, 469 U.S. S.Ct. that the defendant phetamine precursors, (1985), support L.Ed.2d 604 of this methamphetamine a might starting be proposition, yet ignores Hensley’s caution 1261, In Id. at 1265-66. United cook. on information that the officers’ reliance (2d 26, reasonable, F.2d Spinelli, by States v. 848 others must id. provided 232-33, Cir.1988), Hensley, a con In an prior the defendant had at 105 S.Ct. 675. jurisdiction performed officer from one an methamphetamine production, for viction arrest, investigatory stop on the defendant based handgun during prior a a possessed flyer” that had been issued on “wanted Fur reputation and had a for violence. jurisdiction. by question another The thermore, activity “agents had observed could police review was “whether officers during previous days ... few briefly is the stop person and detain who manufacture of metham indicated subject flyer’ at- ‘wanted while at 29. The phetamine ongoing.” Id. out tempt to find whether arrest war- circuit, cases cited from our United two Id. at 105 rant has been issued.” Keene, F.2d 1164 Cir. States v. 915 S.Ct. 675. The Court determined Walsh, 1990), and United States v. reasonableness of such conduct de- (8th Cir.2002), inap are equally F.3d 729 pends on the extent of the officers’ knowl- plicable. Keene involved direct observa objective edge: reading “It is the of the methamphetamine tions of an active lab flyer or bulletin that determines whether Keene, the defendant’s basement. defensibly act in other officers can Walsh, F.2d at 1166-67. In the informa 232-33, on it.” Id. at reliance gleaned immediately prior tion to the exe 675.9 strong cution as “the such equipment

smell of ether and the and resi Applying Hensley, it obvious carport suggested due found in the area and Grant’s reliance on the Greenwell’s ongoing [methamphetamine] manufacture provided by information to them William- Walsh, prior possibly the shed.” 734. son could not search suspi liability. analogue them from These cases involved reasonable insulate Hensley’s flyer” cion of an active lab “wanted this case is McCollan, though, 99 S.Ct. that the warrant itself was valid and Baker U.S. (1979), by appeared power to arrest the 61 L.Ed.2d 433 is also cited confer individual, majority proposition wrongly that Green- detained perform plaintiff description well and Grant did not need to fur- matched the name (who sought-after fugitive investigation. wholly inap- was his broth- ther This case is er). contrast, posite. person who was Greenwell and Grant should Baker involved a outstanding reviewing wrongly warrant have known from the warrant and arrested on an identity, supporting due to and the Court held documents that there was not suf- mistaken support a process that there was no due violation aris- ficient information to no-knock en- investiga- three-day try from deten- without further corroborative officers' arrest question, plaintiff. was no tion. tion of There affidavit, 935-36, and a Id. at the search warrant 115 S.Ct. 1914. Neither showing From this infor- was made briefing Williamson. here.

mation, Greenwell and Grant knew principles knock-and-announce largely “facts” were uncorroborated and Wisconsin, revisited in Richards v. anonymous allegations unreliable from U.S. 137 L.Ed.2d 615 informant, question and did not answer the (1997), where the Court was faced with genuine exigencies permitted of whether Wisconsin’s rule that officers are never away Greenwell and Grant to do with the required to knock and in felony announce Moreover, knock-and-announce rule. drug Stevens, investigations.11 Justice Greenwell and Grant knew did not court, writing for a unanimous recognized magistrate’s permission perform have a that felony drug investigations frequently objective a no-knock search. No officer involve the threat of pos- violence and the that, could have believed based on this sibility that may evidence be destroyed. information, a per- no-knock search was Id. at 392 n.& 117 S.Ct. 1416. Nonethe- missible. less, he concluded that blanket exceptions to the traditional knock-and-announce re- Supreme consistently Court has em- quirement could not be tolerated under the phasized importance the of an officer’s Fourth Amendment: duty to presence knock announce his First, forcing person’s exception before into home. the contains considera- Arkansas, 927, 929, In Wilson v. 514 U.S. ble overgeneralization. For example, (1995), 115 S.Ct. 131 L.Ed.2d 976 the drug investigation frequently while does Court held that the “common-law ‘knock pose special safety risks to officer evidence, and announce’ principle part preservation forms the every not inquiry drug reasonableness under the Fourth investigation pose will these risks Amendment.”10 It noted that an unan- to a degree. substantial For example, entry may nounced if permissible be the search could be conducted at a time government only could show that there was a present when the individuals in a threat of violence or a risk evidence residence have no connection with the likely destroyed would com- drug activity unlikely officers and thus will be plied destroy with the knock-and-announce rule. threaten officers or evidence. unper- application, why 10. It is because of Wilson that I find rant it is clear from Richards majority's approved suasive the citation to Dalia the Court the no-knock execution: States, United 441 U.S. when officers were (1979), support suspected drug L.Ed.2d 177 of its conten- dealer slammed his motel tion that the execution of a warrant is best left room door in the See Rich- officers' faces. ards, judgment. (stating to an officer’s When Dalia was 117 S.Ct. 1416 decided, explicitly petitioner’s apparent recognition Wilson had not included that "the principle part easily disposa- the knock-and-announce as the officers combined with the inqui- drugs justified the Fourth Amendment reasonableness ble nature of the [] the offi- Thus, ry. nothing Dalia stands for more than cers' ultimate decision to enter without first announcing presence authority”). the rule that officers have discretion to con- I their duct authority majority's searches within the bounds of the Consti- have found no tution, happen which proposition did not in this case. a no- officer can conduct magistrate’s approval knock search without a acquired prior majority based on information to seek- 11. The notes that the Court Richards search, Despite majority's upheld though the warrant. insin- the no-knock even certainly contrary, uation Richards officers had asked and been denied a no- for, support, why it does not stand or even this theo- knock warrant. While is not clear ry- magistrate initially denied the no-knock war- justified particular entry stances of know that the could Or in a the knock-and-announce type dispensing or with being searched for were impossible to requirement. that made them location situations, the destroy quickly. In those (footnote 393-94, 117 Id. at pre- governmental interests asserted omitted).12 safety maintaining serving evidence admoni- majority clearly ignores may outweigh privacy the individual in Richards to determine whether tion upon by a no-knock interests intruded justi- in this case facts and circumstances imper- rule blanket Wisconsin’s the knock- compliance fied excused with judi- cases from missibly insulates these rule. Id. It rather takes and-announce cial review. “dynamic entry” per- that a position difficulty permitting a A second anonymous tipster’s mitted because of an criminal-category exception to manu- allegations requirement is knock-and-announce at occurring facture and sales were the exception creating the reasons for residence, that the Dorans’ son can, relatively easily, be category one recently possessing had arrested for been robbers, to others. Armed bank applied so, weapon. doing a In the prohibited definition, are, by likely to example, for Richards, and, in majority disregarded has weapons, the fruits of their have effect, exception” a has created “blanket destroyed too may crime without requirement. knock-and-announce difficulty. per exception much If a se opinion it in his Judge put Arnold well crimi- category for each of were allowed original panel: investigation nal that included a consid- exigent Grant testified that cir- Officer hypothetical-risk danger erable-albeit of (a) cumstances existed because there evidence, of to officers or destruction “safety raiding a factor” involved in knock-and-announce element (b) houses, violent, there were drug re- Fourth Amendment’s reasonableness (e) houses, people drug armed he meaningless. quirement would be the existence of lethal fumes assumed Thus, felony drug the fact that investi- produce from the chemicals used to may circum- gations frequently present methamphetamine. directly While not entry a no-knock warranting stances stated, implication behind his testi- scrutiny cannot remove from the neutral mony police that the feared for their reviewing court the reasonableness safety pre- because the Doran house was police decision not to knock and methamphetamine sumed to be a lab. Instead, particular announce in a case. allowed, reasoning, This would lead to case, duty it of the court each is the to the knock-and- per exception a se question confronted to deter- and eircum- announce rule for mine whether the facts all; Richards, Supreme a at the issue 12. Since Court has not involve no-knock search fifteen-to-twenty-second pause was whether a reaffirmed the knock-and-announce rule in Ramirez, U.S. 118 between an announcement and forced United States v. 523 (1998), permitted during daytime exe- 140 and United warrant S.Ct. L.Ed.2d 191 Banks, Banks, investigation. drug 540 U.S. cution in a States 33-34, (2003). at S.Ct. 521. Neither case L.Ed.2d 343 involved a U.S. Ramirez conducted, (as opposed magis- pursu- speaks to an to a no-knock search that was officer's trate's) nighttime, decision to conduct a no- ant to a no-knock search after anony- escapee based on from a knock execution of warrant received information about confidential, Ramirez, largely mous and uncorroborated informa- reliable informant. 68-69, 992. Banks did tion. Supreme gerous Court has warned They labs. tactical situation. did not against such a result. The Fourth anything hear or see indicate preserves right pri- Amendment in danger or that evidence was k vacy in one’s home. To over- one has being destroyed. Froc knew that that privacy exception, come there was a likelihood that there were specific interest should be the individ- weapons house, in the but he had no place, generalized ual and the not to a information indicating that Kress was class of crime. dangerous considered or violent or (citation Doran, quo- 362 F.3d at 1052 might be inclined to use weapons omitted). tation against them. See United States v. In being addition to inconsistent with Marts, Cir. Supreme Court’s Fourth Amendment 1993) (reasonable belief may firearms jurisprudence, the case before us is indis- residence, have been within standing Lucht, tinguishable from United States v. alone, clearly insufficient for cir (8th Cir.1994). F.3d 541 Lucht involved cumstances). Frock’s belief Kress large-scale drug conspiracy. One defen- had a propensity anti-police senti dant, Kress, appealed the denial of his any particular ments was not based on suppress during motion to evidence seized fact, ized knowledge. Kress’s crimi argued search of his home. He nal record consisted of a nine-year-old improperly by officers acted drug possession misdemeanor conviction knocking announcing pres- first their thirteen-year-old and a charge carry for forcing entry. ence before Prior to the ing a concealed weapon for which prose search, Frock, charge Robert who was in cution was declined. Frock also knew search, was advised that large the search was for a amount large the search for a amount was of meth- of methamphetamine, but he testified amphetamine, and that “there a likeli- that this did not alter how he entered hood weapons present.” would be Id. at the house. 550. Frock was aware that Kress was a (footnote omitted). Id. at 551 a motorcycle gang, member of and sus- pected “that anti-police Kress had senti- Lucht, alleged Kress was to be deal- ments.” Frock supposed Id. ing methamphetamine carrying weap- search would dangerous because his ons, yet justify ignoring this did -not team, Emergency Response Unit Similarly, knock-and-announce rule. Do- (ERU), being used. Id. Based on anonymously ran was alleged dealing to be facts, these the government argued its drugs, having weapons, and his son sup- agents exigency were confronted with an posedly recently had for been arrested requirement that relieved them of the to possessing shotgun. a sawed off Of presence knock and announce their before course, majority can en banc overrule way forcing their into Kress’s home. Our Lucht, but it does not so much as mention disagreed: court the case. appreciate We the fact that Frock as- There, support my is additional view high sumed this was a risk situation the no-knock search- was unreason- However, employed.

because ERU was First, to when officers went able. a decision force cannot rest on magistrate they to obtain the did assumption. requires It consider- permission perform a no-knock seek particular ation of the facts and circum- entry. authority I found no have surrounding stances the execution of the Here, officer, all proposition warrant. ERU was not a dan- that an armed with in- upon inference built upon a were based supports knowledge that he believes ference, factual basis. More- with no true asking for war entry prior no-knock over, specific to there was no information rant, usurp the role may nonetheless no-knock permitted home that decide on his own whether the Doran magistrate and As a view that cases involv- presence. and announce his The officers’ to knock noted, recently excepted weapons court has should be panel of our know, searching, principle before the officers the knock-and-announce “when from they justify a believe support of circumstances finds no the Constitution. entry, Nonetheless, it seems more consistent adopted by been it has now a neu Amendment to ask with the Fourth majority in this case. This stands intruding before judge approval tral Supreme with the Court’s knock-and- odds United States upon privacy.” citizen’s an in- jurisprudence, and leaves announce 1075, 1082 Cir. Scroggins, 361 F.3d clearly no redress for nocent man with 2004). Indeed, showing “[t]he govern- unconstitutional unreasonable and warrant is to obtain a no-knock must make fair- accept conduct. I cannot mental justi make to showing they must the same respect I would ness of such a result. fy dispense with the their own decision jury’s verdict and affirm the district court. Only requirement. knock-and-announce added). (emphasis Id. timing differs.” today, timing not even the differs:

After but withhold may

Officers seek a warrant authorization, even request for no-knock justify no-knock in they when later their In re: ADC TELECOMMUNI entirely they on information knew trusion CATIONS, INC. SECURI the warrant. sought before TIES LITIGATION noted, nothing As the district court Kinermon, individually and on Wanda sought changed from the time the officers similarly behalf of all others situat they and the time executed warrant ed; Feldheim, Plaintiffs, Blime anony- the search. The received the July tip mous in this case on 1998. Tucker; Heim; D. Thomas Willis delayed explanation, Williamson Without Koetter, Plaintiffs- Thomas C. August until request his for a warrant Appellants, received the 1998. Even after officers the search they perform did not Switz; Cadogan; Robert ADC William Certainly, there is August until Telecommunications, Inc., logic appellants’ assertion questionable Appellees. Defendants - they concerned about an active all methamphetamine lab and of its attend- No. 04-2537. dangers nearly ant when took Appeals, Court of United States

month to for the lab. search Eighth Circuit. conclusion, I find no reasonableness 18, 2005. Submitted: March entry” “dynamic in the into the Dorans’ 6, 2005. Filed: June night. home in the dead of exigency purported officers knew that the stale, largely unvarying,

was based on information,

uncorroborated which turned entirely suspicions

out to be untrue. Their

Case Details

Case Name: David Doran v. Dennis Eckold, in His Official Capacity as President of the Board of Police Commissioners of Kansas City

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 6, 2005

Citation: 409 F.3d 958

Docket Number: 03-1810

Court Abbreviation: 8th Cir.