United States v. Cantu

doing so. reason a substantial reflects 196 F.3d 1084 Apfel,

See Haddock

Cir.1999). due defer- the DOT is Although every cover

ence, not and cannot it does impair- of human permutation

possible testimony expert’s

ment. A vocational case,

that, a claimant can particular in-a or class of specific job perform

cannot into consideration

jobs must be taken we should agree that

the ALJ. I therefore de- reverse the Commissioner’s

decline to the conflict on the basis of

termination testimony expert’s the vocational

between

and the DOT.

However, claim Carey’s I find merit in supported was not

that the ALJ’s decision ex- evidence. The medical

by substantial summary an inaccurate of Car-

pert gave records, ex- the vocational

ey’s medical relied, testimony part, on that

pert’s specifi- summary and the ALJ

inaccurate expert, gave that the medical

cally found clearly testimony. The ALJ was

credible he relied on Medical Voca- error when 202.21, a fact

tional Guideline these

majority acknowledges. Based on

errors, case and re- I would reverse this Carey’s a determination of

mand it for disability payments insurance

eligibility for light complete of a and accurate record. respectfully dissent. America,

UNITED STATES

Plaintiff-Appellee, CANTU, Defendant-

Robert Andrew

Appellant.

No. 99-41151. Appeals,

United States Court

Fifth Circuit.

Oct.

Timothy (argued), G. Hammer James Turner, Houston, TX, Lee Asst. Atty., Plaintiff-Appellee. for Dahlin, II, Roland E. Fed. Pub. Defend- er, I. (argued), Jose Gonzalez-Falla Hous- ton, TX, Defendant-Appellant. penetrate not then- they who were did consciousness. the home initial to enter KING, Judge, and Chief Before walls of because the proved unsuccessful PARKER,

REYNALDO G. GARZA flimsy sup- home were too the mobile Judges. Circuit pry the door leverage needed to port the attempt, the the failed initial open. After PARKER, Judge: M. Circuit ROBERT Office, announced, “Sheriffs officers was sentenced to testified Andrew Cantu Two officers Robert search warrant!” pleading- after within the years imprisonment they detected movement twelve that home, to possession point of cocaine were unable to charge to a mobile but guilty in violation of that evi- would indicate anything with intent to distribute else that appeals the district The officers being destroyed. § He dence was U.S.C. sup- entry using his motion to denying try gain order to to court’s continued to a pursuant during discovered this press evidence At no time crowbar. issue before occupants home. The sole of the mobile search of his of the did the district court open is whether door. Both the Defendant home denying Mr. Cantu’s motion testified that erred the Defendant’s wife raid, obtained after the offi- suppress they asleep evidence at the time of the were presence and they to announce their what sounded cers failed awoke when heard but entry of attempting trying forcible to break into fight like a or someone Mr. home. sec- Approximately Cantu’s their home. presence, their they onds after announced window broke the door’s one of officers BACKGROUND the door from the inside. and unlocked approximately 1:00 July On cocaine, suppress Defendant moved a.m., seven-person a team officers LSD, marijuana seized from the resi- County Office exe- Sheriffs the Calhoun that it was the result of alleging dence mo- a warrant to search Defendant’s cuted search and seizure. unreasonable Lavaca, Texas. The home Port bile pursuant to obtained the warrant officers DISCUSSION from confidential source who information that defendant Robert Cantu indicated court makes district When drugs were selling cocaine and that findings following pretrial hear factual residence. The located at the defendant’s suppress, this court ing on a motion any specific did not have reason error, findings for clear as reviews such occupants that of the Cantu believe light fa the evidence most sessing posed any other residence were armed prevailed in the party to the that vorable physical substantial threat. Jones, district court. See United States (5th Cir.), denied, cert. an- under a “breach and Operating 1144, 118 140 L.Ed.2d forced policy, governed nounce” which all U.S. (1998). re Legal conclusions are undertaken the Calhoun 1102 entry cases Office, viewed de novo. See United States County the seven officers Sheriffs (5th Cir.1993). Cardenas, 1139, 1146 masks, Defendant’s approached donned ski door, Therefore, the district court’s determina pry open tried to it front Mr. home Why the tion that the search of Cantu’s presence. first the Fourth Amend imagi- was reasonable under ski masks defies the officers donned de novo. See United conceal their ment is reviewed If the idea was to nation. Seals, identity, the fact that such con- States v. apparently Cir.1993). by announcing cealment would be blown they The Fourth Amendment assures house or find exigent circumstances right people of the to be secure would make pres- “[t]he houses, futile, persons, papers, in their and ef ence “dangerous or or ... would fects, against unreasonable searches and investigation inhibit the effective ” seizures, shall not be violated.... crime.” 520 U.S. at Const, amend. IV. The Fourth Amend S.Ct. 1416. “ principle ment embodies the common law While -3109codifies exceptions an officers should knock and the common-law require- announcement they nounce their enter a ment, ... and the common law in turn Wisconsin, private home. See Richards v. Amendment, informs the Fourth [the Su- 137 preme Court’s] decisions in Wilson and (1997) L.Ed.2d Ar (citing 615 Wilson v. Richards serve as guideposts construing kansas, 927, 1914, 514 U.S. 115 S.Ct. 131 Ramirez, the statute.” United States v. (1995)). However, L.Ed.2d 976 the knock- 992, 523 U.S. 118 S.Ct. 140 L.Ed.2d required and-announce rule is not (1998). 191 In the Court held outweigh per law enforcement concerns that “the Fourth incorporates Wilson, privacy sonal interests. See 514 requirement the common law police that 934, Supreme U.S. at 115 S.Ct. 1914. The entering a dwelling must knock on left Court has “to the lower courts the task identity the door and announce their determining the circumstances under attempting before entry.” forcible entry which an unannounced is reasonable Richards, 387, 520 at 117 S.Ct. 1416 under the Fourth Amendment.” Id. Arkansas, 927, (citing Wilson v. 514 U.S. 1914, (1995)) 115 S.Ct. 131 L.Ed.2d 976 presented in question The this case added). (emphasis In construing the is whether rule the knock-and-announce 3109, scope application § the Court applies equally entry attempts to forcible in Richards and Wilson considered the breaking open as to the actual of a door or common-law requiring rule officers to an- window to a house. The knock- federal presence nounce their attempting before and-announce rule is codified at 18 U.S.C. entry outweigh suggestive forcible § provides: 3109. 3109 Section 3109, language §in implies which that offi- may open any The officer break outer or actually cers must break into the home for house, any inner door or window of a or apply. the rule to id. See house, therein, part anything of a or warrant, if, execute a search after notice by Our conclusion is bolstered authority purpose, he is re- underlying rationale for the common- necessary fused admittance or when Generally, law knock-and-announce rule. person himself him aiding liberate rule serves several fundamental inter in the execution of the warrant. “(1) including protecting ests law enforce Basing 18 on a U.S.C. its decision ment officers occupants and household (2) statute, violence; reading literal of the potential preventing federal from court held in unnecessary private proper United States Fike that destruction (3) ap- ty; protecting people the knock-and-announce rule does not from unnec ply unless law essary private enforcement officers actual- intrusion into their activi ly open an Sagaribay, break outer or inner door or ties.” United States 982 (5th Cir.1993). 906, Wilson, gain entry. window of house to 909 Fike, 1315, explained 1324 the Court that the rule justified part (citing by United States v. Gri- “was the belief that (7th Cir.1989)). er, 934-35 ‘the generally announcement would avoid rule, breaking Under this law enforcement officers ... destruction or house required pres- great damage are not to announce their which and inconvenience ” they subsequently might (quot- ence unless break into a 514 U.S. at 935-36 ensue[.]’ (3rd 91a, 91b, Case, Cir. Rep. Cottingham, 120 5 Co. ing Semayne’s 1997) (K.B.1603)). that law enforcement (maintaining The Rep. Eng. to announce their required officers are protect against intended rule is also attempting entry); forcible presence before by law enforcement intrusions occasioned Markling, 7 F.3d California, States v. Ker v. mistakes. See officers’ Cir.1993) that offi (concluding L.Ed.2d 374 U.S. (1963) presence and must announce their the knock-and-an- cers (noting that attempting practical wait for a brief on such nounce rule is also based police entry). possibility as the considerations as to name or

may be misinformed that law en requirement (Brennan, J., dis- suspect) address of presence officers announce their forcement senting). not be read to man is flexible and “should requirement By limiting rule of announcement rigid date a knock and announce should countervailing law enforcement in ignores only in situations where and intentions Wilson, terests.” under- they actually break into a house wheth 1914. Courts must determine protected interests mines the entry an unannounced is reasonable er First, allowing rule. knock-and-announce particular under the circumstances police attempt entry into a home the ac light and in of law enforcement’s case announcing presence height- their before Jones, id.; tions as a whole. See 133 possibility occupants that the of a ens the Richards, the set out the at 361. Court un- violently against will react the house parameters of the test: reasonableness particularly they if re- aggressor, known entry, justify In order to a “no-knock” in ski masks. Sec- highwaymen semble police suspi- the must have reasonable ond, police attempt an permitting the knocking and cion that entry subverts the unannounced forcible presence, particular under the circum- protecting private property. in interest stances, futile, dangerous would be attempting entry warning Finally, it would inhibit the effective or that precludes ability recognize the officers’ investigation by, of the crime for exam- identity in possible mistakes or location allowing the of evidence. ple, destruction suspect place the or the to be searched. proba- to a opposed This standard —as ap- requirement ble-cause Therefore, —strikes previous analysis our propriate legitimate balance between the longer Fike no serves as the basis for enforcement concerns at issue law assessing attempted forcible entries under execution of search warrants and the Rather, the knock-and-announce rule. by privacy individual interests affected by test reasonableness outlined Su no-knock entries. preme applies Court in Richards attempts at 117 S.Ct. 1416. equal entry force to at forcible as rejected allowing blanket rules breaking entering it does to the actual Court person’s over-general “no-knock” entries based on home. See also United (3rd Gable, today’s drug 766 izations about culture or oth Cir.1968) (holding “general categories] of a crow er of criminal behav insertion Instead, suspects bar into the door of a house ior.” Id. at they pres officers must at least articulate some rea announced search); suspicion “knocking sonable and an ence constitutes unreasonable McCloud, futile, nouncing dangerous, States v. would be purposes of the investi (concluding 1289 n. destructive to the Ramirez, point gation.” the reference for the reasonableness 992; v. Mendoza-Bur begins prior determination to the officers’ S.Ct. Cir.1992). ciaga, attempt gain entry); Kornegay initial Rodriguez, suppress. See also United States 663 tion to Unlike the majority, (D.D.C.1987) (“In F.Supp. every however, I do not see the issue as whether in which the invoked case courts have the knock and applies announce rule equal- exception, police circumstances ly to entry attempts forcible as to the they, specific have testified that had some breaking open actual of the win- door or( immediately' reason for ascertainable Instead, dow. accept parties what all evidence”). fearing the loss of the desired concede—that the Fourth Amendment was In light principles, of these it party violated when the raid attempted to is clear that the search of Mr. Cantu’s way force its into Cantu’s home without residence was unreasonable under Fourth first its presence. The ques- analysis. ap The officers tion that we have to answer is whether proached Mr. Cantu’s home the middle during events delay second night immediately began prying between this violation and the subsequent open prior his door. The officers had no entry means that the evidence seized was knowledge that Mr. the occu Cantu or arrived at sufficiently means distin- pants of his residence were armed or guishable illegality from the initial to be posed immediate danger. When the offi purged primary of its taint. Because the approached home, cers the mobile Mr. lawless conduct of officers was Cantu, wife, and two children were not too attenuated discovery from the asleep only inside. The movement in the evidence, I agree that the evidence must home that could rise to the level of suppressed. be suspicion that evidence was being de stroyed occurred after the officers’ first Furthermore, gain entry.1 I. Background Factual

fact that the officers wore ski masks to matter, execute the warrant reinforces the fact As an initial this court must that the officers wanted to conceal their problematic review the execution of the identity. practices Such law enforcement County Calhoun Sheriffs Office raid on Therefore, clearly unacceptable. are with 30, 1999, the Cantu residence. On June out suspicion articulation of reasonable law enforcement officers secured a valid presence their would be search warrant for Cantu’s mobile home. futile, dangerous, or would in result de This warrant was on based information evidence, struction of the officers’ initial obtained from an informant alleged who attempt forcibly to enter Mr. Cantu’s that Cantu sold cocaine out of his home. was Accordingly, unreasonable. we home The officers had no information that Cantu denying reverse the district court’s order armed, dangerous likely destroy or suppress his motion to and remand for warrant, evidence. Pursuant to the search proceedings further consistent with this a team of than seven more law enforce- opinion. ment officers went to mobile home Cantu’s REVERSE AND REMAND. to execute this warrant. KING, specially Judge, Chief suppression Testimony hearing at the concurring: officers, revealed that these dressed uniform, dress including

I concur battle combat hel- judgment reversing in the the mets, district court’s order denying goggles, bullet-proof Cantu’s mo- vests and ski exigent adequate dispensing 1. We note that circumstances created basis for the justify requirement, especially will not an unannounced announcement entry attempt into a home. The movement inside Mr. the initial itself is unreasonable. See Rico, reasonably Cantu's home could be attributed 51 F.3d 1995); Richard, open physically pry to the initial Cir. 1993); the door to his mobile home. Such "manu- Cir. United States v. Hult (5th Cir.1983). gren, factured circumstances” do not form the officers what was ing house to ask home at 1:00 masks, Cantu’s surrounded him back The officers ordered procedure happening. standard Following them a.m. warrants,1 they officers also testified narcotics search his home. The executing inside outward-swinging open to the attempted after the initial blow that sometime using large mobile home of Cantu’s in the door heard a movement they doorframe “haligan tool.” Officer "bar called pry They home. area of the mobile bedroom forcefully stuck that he admitted Daigle movement, that, following this testified doorframe, attempt- into the the steel bar pace at a fast they footsteps moving heard molding. away from the the door ing pry position their at the door. Unable past time, no announce- had been At this there tool, haligan Dai- open using the door presence, or purpose, the officers’ ment of window in the door and gle knocked out a testified that the Daigle further authority. the door. Once reached to unlock shaking as a result home was entire mobile unlocked, the officers entered the door was open the door. to wrest of his efforts Cantu, wife, home, his mobile secured did the this initial breach Only after and read young gunpoint children at two pur- officers announce readily Cantu rights. him his Miranda they identified that The officers pose. drugs, told the officers the location from the Office were Sheriffs he was arrested. pursuant to a at the residence they were Despite Daigle’s ongoing search warrant. II. Actions Violated The Officers’ home door to the mobile attempts, FouHh Amendment remained closed. requirement The Fourth Amendment accept majority, panel Like the executing a that law enforcement officers approximately finding that district court’s themselves, knock, identify search warrant ini- elapsed between forty-five seconds was violated and announce doorframe and the offi- tial breach of the instant breached the Daigle Officer From the officers’ entry. cers’ eventual au- doorframe first Daigle continuously testimony, appears it v. Ar- thority presence.4 See Wilson pry in an effort to remove worked the bar kansas, were During this time officers the door.2 (1995). there were no 131 L.Ed.2d 976 As they were law enforcement shouting that circumstances, and the law en- exigent warrant.3 As a re- a officers with search commotion, acting under what fa- forcement officers were Robert Cantu’s sult of the an unconstitu- ther, adjoin- government the the admits was emerged from Ray Cantu significant.” hearing tionally The Court has suppression re- 1. The record of the "[Pjolice County Of- entering dwelling Sheriffs vealed that the Calhoun held: raiding procedure for fice executed the same knock on the door and announce their must warrants. all narcotics search identity attempting forc- Wisconsin, entry.” ible Richards v. 520 U.S. hearing, Daigle suppression testified 2. At the 385, 387, 117 S.Ct. 137 L.Ed.2d three times with the that he hit the door (1997) added). (emphasis The district court tool, "working haligan the door” back Filce, 82 F.3d 1315 relied on attempt pry open. Officer in an it forth Musgrave (5th Cir.1996), part on other overruled Daigle hit the testified that door Brown, grounds by States v. haligan four times. Offi- with the tool at least (5th Cir.1998). majority correctly As the Daigle hit he saw cer Amador testified that out, however, interpreted points Fike the five times. door four to (at least as construed in U.S.C. which shouted testimony 3. was that the officers Fike) The "breaking] open any requires an actual Warrant” five Department. "Sheriffs Search "at- or window.” The outer or inner door to ten times. language mandates a tempting” in Richards case. different result in the instant panel respect, agree ma- In this with the holding jority that the district court erred in attempl entry never constitu- that "an at is policy always breaching private tional III. There Was Attenuation Insufficient Between the Constitutional homes before Violation and the Entry by the warrants, executing narcotics search Officers the actions of the officers were unreason- A. The District Court Ewed analy- able under our Fourth Amendment in Analyzing “Cure" (“[W]e sis. See id. at 115 S.Ct. 1914 The district court held that the evidence th[e] hold that common-law ‘knock and obtained after this failure to knock and principle part forms announce’ announce was cured of its unconstitutional inquiry reasonableness under the Fourth provided taint. The court two alternative Amendment.”); Jones, justifications for this cure as the for bases (5th Cir.1998). Thus, its denial of suppression motion. protected by the central freedom First, the court found that if the officers’ Fourth Amendment to be free from unrea- “attempt” was not a constitutional viola- sonable searches and seizures was violated tion, forty-five then the seconds that County the actions of the Calhoun elapsed after the violation and before the Office. Sheriffs See Richards v. Wiscon- entry rendered the subsequent discovery sin, 137 “reasonable” under the Fourth Amend- (1997); Wilson, L.Ed.2d 615 514 U.S. at Second, ment. the court found that (“Given 934, 115 S.Ct. 1914 the longstand- “movement” heard in the mobile home ing prac- common-law endorsement of the during provided the raid cir- announcement, tice of we have little doubt justified cumstance that the officers’ forc- that the Framers of the Fourth Amend- entry. panel ible contrast to opin- thought ment that the method of an offi- ion, I find questions these “attenuation”5 entry dwelling among cer’s into a dispositive court, be the issues before this but, factors to be in assessing considered on presented, the facts conclude that seizure.”). the district court reasonableness of a search or erred in its determina- tion. policy adopted by “no-knock” panel As the in agreement is that there Sheriffs Office runs counter to the holding was a constitutional violation from the offi- provides particular- as it no cers’ attempt entry, predicate for ized suspicion “reasonable that knocking the district argu- court’s reasonableness ... dangerous would be away. ment falls The district court held futile, or that it would inhibit the effective that “if the significant, is never crime, investigation of the by, example, second between an- allowing the destruction of evidence.” 520 nouncement entry plainly and actual govern- U.S. at 117 S.Ct. 1416. The reasonable under Jones.” See United ment and the lower agree that such a Jones, 358, v. States 361-62 categorical policy is unconstitutional and Cir.1998) (holding properly that after that the Sheriffs Office in this case lacked knocking and announcing officers need any particularized suspicion. reasonable only twenty wait fifteen seconds before Richards, I Following find such a “blanket words, entering). In other if there was no exception” to the knock and announce re- violation, holding constitutional the Jones quirement overbroad and that the execu- should control. As we Rich- are bound policy tion of this violated Cantu’s Fourth ards, “attempts” which makes constitution- rights. See id. at 117 ally significant, inappo- this is argument S.Ct. site. supra. See note States, 5. See Nardone United 308 U.S. dence can "become so attenuated as to dissi- (1939) (recog- taint”). 84 L.Ed. 307 pate the nizing unconstitutionally that obtained evi- commotion, Douglas nevertheless, open. Hearing on relies government, The and was ordered the kitchen door opened the fact that argue Jones to ini- on enough burglar is cure to unlock the bars elapsed gunpoint at seconds however, argument, This court question tial The before violation. the door. this holding in Jones. our misapplies comported action this was whether in was this court Jones question § before 3109.6 of 18 U.S.C. requirements knocking and whether the kitchen The court found that because after for a waited officers who presence, their opened before the door had been officers twenty seconds acted period of fifteen window, a door or actually open broke the Fourth Amendment reasonably under § there was reading a strict of under 133 F.3d at 361 test. See reasonableness of the statute. See 18 U.S.C. no violation (“The not the offi- of whether or question “breaking] open (requiring in should have knocked cers this case window”). this inner door or As outer or purpose their announced Richards, before case was decided it is conceded consequence, no as the Fourth Amend- court never addressed Indeed, admits just that. Jones they did ment reasonableness issue. and announced officers knocked that the court that disagree with the district they did argues but he presence, the lesson the Fourth Fike teaches length time before not wait a reasonable “that whatever viola- Amendment context us, in the case entering.”). Unlike before may amounts to be cured tion an Jones, illegality initial was no there First, occurring event.” by a later ques- therefore no “attenuation” “cure” unsupported by Fike conclusion is holding to the court. Our presented tion never reached this holding, which issue reasonable, under that it was Jones was cure, a Fourth never undertook Amend- for the officers presented, the facts analysis and considered atten- ment never after twenty to- enter fifteen seconds uation. presence. knocking and that an unconstitutional

We not hold did Second, supra, as stated note knock and announce rule violation of the Fike also ignores district court’s use of twenty in fifteen to sec- could cured be interpreted the knock that Richards has onds. “attempt[s].” and announce rule to cover justification for its As the second at court on United holding, the district relied (“[Pjolice ... must knock on Fike, identity and the door and announce their Cir.1996), on other part overruled in attempting entry.”). Brown, 161 grounds by Therefore, the use Fike district court’s (5th Cir.1998), to find that subse- F.3d 256 application to the Fourth has no direct failure to cure an initial quent events could analysis nec- Amendment reasonableness Fike, law en- knock and announce. essary case. for Cantu’s a raid at the officers conducted forcement support not the dis- Finally, Fike does one of Douglas, home Eddie Franklin analysis because the exigency trict court’s drug indicted in a co-conspirators twelve reaching specifically Fike disclaimed down a conspiracy. The officers broke cre- house, exigency whether an attempted to the issue of gate Douglas’s outside id. by Douglas’s ated actions. See on the front door pull burglar off the bars (“[T]here § violation of 3109. For was no attempted and to force that door then authority purpose, he refused part: and is 3109 reads in relevant Section necessary to liberate admittance or open any or may The officer break outer aiding house, person a him in the exe- himself or any or door or window of inner house, therein, the warrant. cution of part anything of a warrant, if, § 18 U.S.C. 3109. a search after notice of execute

157 reason, ques- we need not reach the held that warnings Miranda did not tion of whether or not circum- cleanse the taint of a pur- confession made existed.”).7 stances suant to an unconstitutional arrest. See 604-05, id. at 95 S.Ct. 2254. guide analysis, not I my While Fike does of attenuation agree question the raised Three factors have been distilled from dispositive question the district is the Brown to evaluate the connection between of the ease. the constitutional violation and the subse (1) quent acquisition of evidence: the tem B. Analysis Attenuation poral proximity of the illegal conduct and (2) evidence, discovery the pres the the fruit poisonous “Under the of the tree (3) circumstances, ence of intervening doctrine, all evidence derived from the ex- the flagraney of the official ploitation illegal of an search or seizure 603-04, misconduct. id. at 95 S.Ct. suppressed, govern- must be unless the 2254; Vega, States ment shows there was a break (5th Cir.2000) 801-02 (applying the test to chain of events sufficient to refute the find that consent did purge not the taint of product inference that the evidence was a search); an unlawful United States v. Cha of the constitutional violation.” United vez-Villarreal, 3 F.3d 128 Cir. Miller, 146 F.3d 279 1993) Cir.1998) (applying the Illinois, test to find coerced Brown v. 422 (citing consent did not purge the taint of an un 590, 597-603, U.S. 95 S.Ct. Miller, (1975)).8 stop); lawful United States v. L.Ed.2d 416 A failure to knock 1089, 1102-03 (applying announce, leading to an unconstitu- evidence). physical test to search, may, tional arrest and if too not attenuated, require suppression of evi- factors, Using the Brown this court States, dence. See Sabbath v. United must analyze the two “curative” events— U.S. 88 S.Ct. 20 L.Ed.2d elapsing forty-five seconds and the (1968) § (holding under 3901 that be- “movement”—to determine if the failure to cause knocking officers entered without knock and suppres- announce demands the announcing, subsequent arrest was sion of evidence. invalid and the evidence seized inadmissi- ble). 1. Temporal Proximity

In resolving questions, attenuation adopted court has the multi-factor test set Analyzing “temporal the first factor of out Brown v. Illinois proximity,” determine find sec- whether the fruit of an unconstitutional onds between the violation and the subse- suppressed. violation should be quent entry sufficiently was not attenuated 590, 603-04, 95 S.Ct. 45 L.Ed.2d 416 to cure the unlawful action. Such brief (1975). Brown, In Supreme standing Court of time alone is almost 7. The district court’s reliance on another We need not hold that all evidence is fruit case, Carter, poisonous simply tree because it (5th Cir.1978), equally 1268-69 mis- light would not have come to but for the Carter, placed. Rather, agent the federal DEA an- illegal police. actions of the nounced his as a law enforcement apt question more in such a case is wheth- performed entry only er, officer and a no-knock granting primary establishment of the prem- when individuals outside and inside illegality, the evidence to ob- which instant case, away ises ran from him. In the instant jection by exploi- is made has been come at entry and thus the violation occurred before illegality tation of that or instead means authority. announcement of sufficiently distinguishable purged to be primary taint. 471, 487-88, Wong 8. As the Court Sun v. Unit- 9 L.Ed.2d (internal (1963) omitted). explained: quotations ed States 158 to break the causal sufficient claim.9 cumstances” any attenuation vitiate

enough to ini- 274, the taint of the Miller, dissipating 146 F.3d chain thus v. States See United Cir.1998) relied on (5th ninety sec- The district court illegality. tial (finding 280 stop attempted illegal that after testimony between ond time home, at- support government’s “movement” not search does to enter mobile Chavez-Villarreal, movement, 3 argument); the house. This tenuation heard inside minute that fifteen (finding concluded, exigency F.3d at 128 an created stop search wait at border between entry. justified that then the officers’ taint); United dissipate enough not ‘include those “Exigent circumstances (5th 712, Tookes, F.2d 716 633 v. States safety, where officers fear for which 1980) “few (finding passage of BUnit Cir. is a present, or where there firearms are discovery arrest and illegal after minutes” escaping or suspect’s risk of a criminal taint). dissipate enough firearm not ” United of destruction of evidence.’ fear forty- important, the Further and more Rico, 51 501 Cir. v. F.3d States into does not take measure five second 1995). government on the The burden is on the door was that the assault account exigency. the existence of the prove Even, arguendo, assuming continuous. argues that the government id. The See knock and initial violation of the that an they began the movements heard after cured requirement could be announce evidence was them to believe raid caused police activi- peaceful seconds of argument fails on being destroyed. This authority (i.e., lawfully announcing their ty two fronts. objectives of the presence), knock served requirement are not and announce First, govern exigency on which assault. See in the case of a continuous certainly created relies was almost ment Sagaribay, v. 982 forcibly act by the unconstitutional (5th Cir.1993) (finding the knock and 909 knocking striking Cantu’s door Fourth rule to several announce serve Ro announcing. (1) including protec- Amendment interests (5th Cir.1997) dea, officers and house- tion of law enforcement (“[T]he exception exigent circumstances (2) violence, potential occupants hold from if the created apply does not Government unnecessary destruction prevention of Rico, 51 exigency”); ‘manufactured’ the (3) protection private property, and (“Just as circum F.3d at 502 into unnecessary intrusion people from an to the warrant exception stances are activities). difficult, It is private police-manufactured exi requirement, then, government’s argument accept exception.”); exception is an gency time, alone, the taint of removed Richard, in this situation. violation constitutional (“Exigent circum however, stances, pass Fourth do not Intervening Circumstances deliber muster if the officers them.”). create The officers testified ately under Brown The second factor only after movement occurred any “intervening cir- whether there were York], attenuated); Dunaway New [v. in United States 9. As noted dissent (incrimina- U.S. at Sheppard, ting within an hour of however, statements made exception, re- The attenuation attenuated); sufficiently illegal arrest not temporal than quires greater distance sec- Alabama, Taylor decisions or minutes. Court onds (1982) (confession six 73 L.Ed.2d 314 generally Wong found that since Sun have illegal purged not of taint after arrest hours elapse evidence is must hours arrest). Brown, illegal purged its taint. J„ Cir.1990) (King, (statement separated from 95 S.Ct. 2254 dissenting) (emphasis original). illegal two hours not arrest than less Daigle haligan used the tool on the door.10 find an intervening signifi- circumstance therefore, government, The cannot meet dissipate cant enough to the taint of the its burden of an demonstrating exigency entry.

not of its own creation. In Brown the court found no “signifi “In determining whether the cir- cant” intervening circumstance from the by cumstances were manufactured illegal defendant’s initial arrest and his ... agents, only we must consider not 604, eventual confession. 422 police motivation of the in creating the S.Ct. 2254.12 The lack of an intervening exigency but also the reasonableness circumstance stronger is even in a case propriety the investigative of tactics that like Cantu’s in which the evidence found is Rodea, generated exigency.” 102 F.3d physical evidence opposed as to a confess presented suppression at 1409. As in the See, Miller, ion.13 e.g., 146 F.3d at 280 hearing, the “investigative tactics” em- (finding no intervening circumstances ployed in in all narcotics raids Calhoun where initial stop directly led to search County requirement violated the of knock- discovery home); ing drugs of in entering. before The motor Tookes, resulting by family movement Cantu or his 633 F.2d (finding at 716 no inter consequence as a of this unlawful action vening circumstance in being defendant cannot, now, be said to create an exigency placed in police back seat of car and driven that cures the violation.11 around the block pistol was discov ered); Ienco, see also United States v. The analyzed district court the “move- 517, Cir.1999) (formal arrest ment” under an exigency opposed test as not an intervening to the circumstance sufficient intervening circumstance test as required by My discovery Brown. to attenuate incriminating review of the of evi record, however, dence); support shows little King, movement, remembered, (narcotics) 10. This it must be Toy’s aas direct result initial of attenuated, family being was Cantu and illegal awakened at arrest was not and “did not police 1:00 a.m. an unannounced raid. intervening independent result an act from of will,” sufficiently and thus "was not an free 11. way judge This is not to in the ''moti- purge primary act will to taint of free vation” of the individual officers in the Brown, invasion.” 422 U.S. at unlawful 95 Rico, ("Exi- raiding party. See 51 F.3d at 502 added) (emphasis (quoting S.Ct. 2254 gencies guilelessly can be manufactured Sun, 407). Wong 371 U.S. at ulteriorly. Although question [t]here no urgent that the deliberate creation of circum- lengthy lapses 13.Courts have held that time [,] unacceptable stances is required ... bad faith is not physical cannot remove the taint on evidence. [of to run afoul the Fourth Amend- Ienco, See United States v. (citations omitted) (alterations ment].” (7th Cir.1999). Again, compare example, original)). Ceccolini, in United 275, 435 U.S. Explicating holding its earlier attenuation (1978), 98 S.Ct. 55 L.Ed.2d 268 States, Wong Sun v. United testimony the court held that of a witness (1963), 9 L.Ed.2d 441 the Brown illegal discovered as a result of an search was types "intervening Court contrasted two admissible, despite lengthy lapse time be circumstances” that arose in that case. cause the taint was cleansed an interven Sun, Wong probable the initial arrest without ing Importantly, act of free will. the court Toy question- cause of James Wah led to the distinguished testimony physical live from the ing discovery and eventual of narcotics in type present of evidence in Cantu's case: turn, Johnny discovery, Yee's home. This exclusionary [T]he rule should be invoked Wong led to the arraign- arrest of Sun. After greater released, reluctance where the claim is Wong ment Sun was but later volun- relationship based on a causal between tarily give incriminating returned to state- discovery constitutional and the police. violation ment to Court held that a live witness than when a similar claim is returning intervening this act of was an cir- cumstance, support suppression dissipating advanced to an inani- thus the taint of the However, object. original illegal arrest. mate the court also added). discovery physical (emphasis held that the evidence Id. at 98 S.Ct. 1054 (“[T]he Cir.1993) (abandonment primary func- exclusionary rule’s

1552, 1564 circumstance). deterrence.”). case, where intervening tion is an drugs not knock and announce was the failure analysis the “move- a Brown Under policy disregard- flagrant pursuant to intervening an considered ment” cannot be Amendment, I com- am ing the Fourth had circumstance, the officers because majority panel pelled agree This was a along. all trying to enter been denying court’s order the district assault. Because continuous single re- suppress should be motion Cantu’s violation occurred constitutional versed. movement, intended to and the officers movement, far from or without enter with circumstance,” the “intervening

being an the officers’ irrelevant to seems

movement I, therefore, accept cannot

actions. way created an

the “movement” interrupted or the ex- that cured

exigency policy. of this

ecution Flagrancy Purpose

S. Misconduct of Official UNITED STATES America , analysis final Brown factor Plaintiff-Appellee, flagrancy of the official purpose v. Here, the officers executed misconduct. policy that admittedly unconstitutional DOGGETT; Rodney Dunois Sloan require- knock and announce ignored the Beman, “Dee” T. Defendants- of the Fourth in contravention ments Appellants. testified to hav- The officers Amendment. this breach announce No. 99-50380. ing performed then twenty other policy fifteen to between Appeals, States Court of they presumably In each case times. Fifth Circuit. pres- failed to knock and announce prac- the home. This entering ence before 6, 2000. Oct. “quality purposefulness” tice meets required by the Court Brown. 2254, 45 L.Ed.2d Miller, (1975); at 280 see also action in

(finding flagrant purposeful suspect probable

stopping

cause); Causey, F.2d United States (5th Cir.1987) illegal ar- (finding abusive vio- flagrantly

rest “amounted'to a

lation of Fourth rights”). context,

“In the fourth amendment for the exclu-

‘single and distinct’

sionary viola- rule is deterrence protection of th[e]

tions constitutional

against and sei- unreasonable searches States, Brookins,

zures.” United Cir.1980); also 1046-47 see Sheppard, J., dissenting) (King,

Case Details

Case Name: United States v. Cantu

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 9, 2000

Citation: 230 F.3d 148

Docket Number: 99-41151

Court Abbreviation: 5th Cir.