United States v. Garcia-Hernandez

* HOWARD, Bеfore RIPPLE and SELYA, Judges. Circuit SELYA, Judge. Circuit appeal presents This two unrelated is- sues, which we decide together only be- they cause arise within the confines of a single criminal case. The first issue hing- Supreme es on whether the Court’s deci- sion Hudson Michigan, (2006), 165 L.Ed.2d 56 establishes categorically that exclusion of seized evidence is not available as a reme- dy for violations of the knock-and-an- nounce rule. The second issue involves sentencing; its resolution depends on whether aggravating adjustment role 3Bl.l(b) contained section of the federal sentencing guidelines authorizes a three- level upward enhancement when the de- fendant, although a manager supervisor in a activity criminal comprising five or more participants, oversees fewer than five persons. After answering both of these inquiries affirmative, in the we affirm the judgment below.

I. BACKGROUND February In a confidential in- formant furnished information to law en- Manchester, forcement officers in New Hampshire, that led to the unmasking of a massive drug-trafficking operation. The enterprise tentаcles, long had reaching out to a myriad suppliers, couriers, whole- salers, and street-level dealers. Iacopino, Michael J. with whom Brennan An investigation intensive ensued. In Iacopino brief, Caron Lenehan & was on course, due task agents apprehended force appellant. (Ramirez) Renaury Ramirez-Garcia while Aframe, R. Seth Assistant United States he endeavoring purchase ten kilo- Attorney, Kacavas, with whom grams John P. of cocaine from an undercover offi- * Circuit, sitting by designation. Of the Seventh devices, causing windows that he and defen- noise-flash Ramirez admitted

cer. body to shatter. The main residence dant-appellant Juan Gareia-Hernandez rifles, searchers, carrying several assault to a fran- partners what amounted were into the residence. ring. stormed larger drug-trafficking chise of the Ramirez, to the defendant’s According all, dog a partici- All in 18 officers and procure- the responsibilities were principal home, in Inside the pated the mission. higher up cocaine from sources ment of eight (inсluding the de- they found adults transporta- chain of command and the the fendant) children. The search and three to New acquired tion of the contraband multiple cell yielded drug paraphernalia, forward, point From that Hampshire.1 of cocaine and phones, quantities small of the Ramirez oversaw the distribution $58,000 marijuana, approximately in in drugs the Northeast. cash. that the agents After Ramirez told the parked The defendant’s Cadillac was fifty-kilo- a expecting local franchise was police outside the residence. The obtained delivery mid-April, they in gram cocaine an additional search warrant for it. That Ka- paramour, enlisted Ramirez’s Nicole kilograms ancillary search recovered 30 of lantzis, probe. in the In the to assist garbage bags in in cocaine stowed the meetings telephone calls course of trunk. vehicle’s Kalantzis, with the defendant indicated delivery expected that he the of cocaine to and eventu- The defendant was arrested that April occur on 12. He also stated of, ally charged with distribution and con- get portion ship- Kalantzis could a of the distribute, in spiracy to of five kilo- excess ment to sell to Ramirez’s customers. To grams of cocaine. U.S.C. See end, girlfriend that the defendant and his 841(a)(1), §§ suppress 846. He moved to gave specific on how Kalantzis instructions ground the seized evidence on the that the the manage drugs to distribution of party search had violated the knock-and- Ramirez’s absence. by failing announce rule to alert the occu- entry pants prior forcing to into the dwеll- intelligence, agents Armed with this ing. posited He that the manner in which obtained a warrant to search the defen- the officers executed the search warrant— They planned dant’s residence. to execute words, “military his a assault” —was so on that morn- April warrant On egregious as to demand exclusion of the Sunday' Ka- officers sent —the —Easter fruits of the search. lantzis into the to confirm that house shipment had arrived. When Kalantzis J.) (McAuliffe, The district court denied a containing left the house with suitcase suppress motion on alternative cocaine, kilograms agents of executed first, it grounds: concluded that the offi- the search warrant. cers’ failure to knock and announce their presence

The manner which the authorities ex- was not fatal because the execu- is, present pur- exception ecuted the warrant for tion of the warrant fell within poses, particular pertinence. permitting entry One offi- a no-knock where notice ingress presents great cer drove an armored vehicle onto the of the imminеnt a parked picture lawn and in front a or a that danger risk of likelihood evidence destroyed. window. Another breached front would be The court also con- door Hudson, cluded, battering citing suppression with a ram. detonated Others Mexico, Florida, supply away 1. The sources of were located as ‍‌​‌​‌​​‌​‌​‌‌​​​‌​​​​‌​‌​​‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌​​​‌‍far as and Texas. Cir.2011) (citation (1st remedy quota- not an available for violation and internal omitted). tion marks knock-and-announce rule. of the argument suppression The an- is a con- proceeded to enter The perceived chored in a violation guilty plea, see Fed.R.Crim.P. ditional rule, rule. That de- knock-and-announce 11(a)(2), appeal the reserving right law, is veloped at common now codified The suppress. of his motion to denial 3109; § a federal statute. See 18 U.S.C. accepted and or- plea court this district Arkansas, see also Wilson preparation presentence dered the of a n. 931-34 & 131 L.Ed.2d investigation report. (1995) (discussing 976 the rule’s common- the the district disposition hearing, At evolution). It “requires law law enforce- J.) (Barbаdoro, defendant’s court set the ment to knock and officers announce their 36, adjusted level at down- base offense presence authority a prior effecting and by acceptance of three levels for ward entry dwelling.” non-consensual into a 3El.l(a)-(b), § see USSG responsibility, Pelletier, v. United States adjusted upward by three levels for and (1st Cir.2006). 198 offense, see id. the defendant’s role the rule, however, The is not absolute. 3Bl.l(b). adjustment § This was last that, It is well established certain cir a that premised upon determination the сumstances, executing officers a search manager or defendant had acted as a su- may justified warrant be in declining to activity. in an pervisor extensive criminal presence. knock and announce their For yielded These and other an ad- findings instance, a failure will not rule violate the visory guideline range of 188 to sentencing when “have a suspicion officers reasonable months. The court a 200- imposed 235 knocking announcing that pres their timely incarcerative This month sentence. ence, particular circumstances, the under followed. appeal dangerous futile, would it be or that the investigation would inhibit effective of II. ANALYSIS the for by, example, allowing crime the challenges The defendant both the deni- of evidence.” v. destruction Richards Wisconsin, al his motion to the suppress court’s U.S. 520 117 S.Ct. (1997). 1416, 137 of the deployment upward role-in-the-of- L.Ed.2d 615 adjustment. fense these chal- We address joust parties The over the whether separately. lenges entry into no-knock the defendant’s abode violated rule. The argues the Suppression.

A. that had no officers reason to believe that a reviewing district court’s deni In presented any he danger, as was made suppress, al of motion to “we assess by dispatch manifest the of the unarmed findings for and evalu factual clear error informant into the house. govern The legal rulings ate de novo.” States United that a entry ment counters no-knock Cir.2009). (1st Fagan, 577 F.3d 12 justified by exigencies the of the situation. is a deferential of review: This standard sort out parties’ We need not conflict “when the district court chooses to draw a ing positions entry about whether the into inevitable) (though infer reasonable not transgressed the defendant’s home particular ence from a Assuming combination rule. ar knock-and-announce facts, did, respect.” that inference is it guendo suppression entitled that is not remedy. Hughes, States v. F.3d 434 United 640 available There, using Because the costs of S.Ct. 2159. key precedent is Hudson. The remedy knock-and- exclusionary rule to squarely addressed Supreme Court clearly would so out- the knock-and-an- announce viоlations a violation of whether benefits, any corresponding justify weigh the exclusion of might rule nounce un- requirement found this second Noting that exclusion of Court seized. evidence resort, 599,126 2159. always last met. Id. at S.Ct. [a] “has been evidence impulse,” not first [a] applied have Hudson to affirm We exclusionary the Court held in a suppress pair of motions to denial to knock-and-announce inapplicable rule viola- alleging cases knock-and-announce 590-602, violations, id. at Jones, States v. tions. See United (1st Pelletier, Cir.2008); the Court noted F.3d 36-37 taking position, In this apply- 469 F.3d at 198-201. The defendant con- independent requirements two itself, cases, tends that these and Hudson exclusionary explained rule and distinguishable violation could are because of the Rambo- why a knock-and-announce entry like manner of the officers requirements. never meet those adopted here. This contention is unavail- begin, the deemed but-for cau- To Court ing. . (cid:127).. necessary sup- sation “a condition for 592, sure, In To the circumstances of this pression.” Id. at 126 S.Ct. 2159. be words, Hudson, officers other there must be a causal link case differ from where first, alleged then waited “three to five the constitutional violation knocked between discovery entering of the evidence seized. seconds” before the defendant’s and the view, In a of the home in an unremarkable manner. 547 the Court’s violation Similarly, at knock-and-announce rule could never U.S. 126 S.Ct. 2159. the benchmark; offi- differ from both and achieve this whether the circumstances Jones Pelletier, not, merely evidence in which officers used cers knocked or the would inevitably during passkeys the hotel to effect non-consensual en- be discovered subse- (valid) try places into transient of abode. See quent search. Id. Jones, 34; Pelletier, 523 F.3d at out a The Hudson Court set second contrast, Here, by entry at 197. the applying exclusionary condition for the vehicle, accomplished with an armored a rule: that the beneficial effects of exclu- officers, large complement of noise-flash outweigh Id. at 594- sion its social costs. and a formidable show of accompaniment, explaining why 126 S.Ct. 2159. In persuade force. The defendant strives to application exclusionary rule to the analysis perforce us that the Hudson is knock-and-announce violations would be police different in this case because offi- costly, a possible the Court worried about discouraged employ- cers should be from flurry litigation of knock-and-announce aggressive such and violent tactics prisoners seeking “get-out-of-jail- from executing when ‍‌​‌​‌​​‌​‌​‌‌​​​‌​​​​‌​‌​​‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌​​​‌‍domestic search warrants. card,” pоtential free the for increased vio- why There are two reasons we find this un- against lence officers hesitant to enter argument unconvincing. gathered announced for fear that evidence suppressed, potential thing, would be and the For one the circumstances by nothing the adverts do the destruction of evidence those inside which dwelling. satisfy requirement of but-for causa- Id. at 126 S.Ct. 2159. the knocked, costs, against only As substantial tion. Even if the officers had these announced, politely benefit from exclusion would be the deter- and entered the defen- incriminating at evidence police dwelling, rence of misconduct. Id. dant’s they safeguarded would have been found when conduct by interests the knock-and- exclusionary remedy The announce rule: “protection ed search. of human life when, limb,” case, “protection property,” is unavailable as in this there and ... “protection] privacy link dignity.” is no causal between constitutional Id. at alleged violation and the 2159. He speculates evidence discover that the threat during еnsuing greater ed search. See Hud to those interests is son, 592, 126 this case than in S.Ct. 2159. the mine-run of cases overly due to the aggressive manner of the thing, accept For another we do not entry. officers’ aggressive defendant’s claim that an man- entry materially ner of alters the decision- so, Whether or not this is it is employed al calculus in Hudson. The de- point. beside the The knock-and-announce compelling fendant insists that there are implicate rule does not the interest discourage executing reasons to officers “shielding ... evidence from the govern engaging search from in “mili- warrants eyes.” ment’s Id. at 126 S.Ct. 2159. tary assault” tactics and that those reasons (in That suspended interest is limited outweigh the social costs incident to em- scope) once a valid warrant has issued. exclusionary rule. But ploying this is Id. A defendant harm claiming to that dixit, nothing ipse more than an and we (say, interest harm from a warrantless tips fail to see how the level of force used search) may be entitled to exclusion as a all, the Hudson balance. After the Court remedy. where, here, But as a defendant recognized apply- that the chief benefit of injury asserts from a entry no-knock ante ing exclusionary rule to knock-and- search, cedent to otherwise valid announce violations would be its deterrent in remedies afforded civil suits can ade 596, police effect on misconduct. See id. at quately redress the harm to the interests 126 S.Ct. 2159. The Court nevertheless 596-99, that are affected. See id. 126 that imposing concluded the social costs of S.Ct. 2159. outweighed exclusion that benefit. Id. In Although cоurt, this issue is new to this alleging a cases failure to knock and an- pristine we do not write on a page. Two nounce, reasoned, police the Court miscon- appeals other courts of have indicated that duct effectively through could be deterred entry, a no-knock accompanied even when suits, negating civil thus the need to invoke force, by significant justify cannot the ex- remedy the extreme of exclusion. Id. at clusion of evidence seized. See United 596-99, 126 2159. That the officers Ankeny, States v. 502 F.3d 835-

in this case usеd shock-and-awe tactics (9th Cir.2007) 38 (holding that defendant reasoning.2 does not undermine this suppress could not evidence in an seized In an change trajectory effort to aggressive search that him physical caused debate, the defendant notes the Hud- injury property damage); see also Watson, son Court’s discussion of the important 702, United v. States 558 F.3d Hudson, 604, part 2. The defendant relies in on Justice Ken- future. 547 U.S. at 126 S.Ct. nedy’s support J., Here, concurrence a deviation (Kennedy, concurring). 2159 how- categorical approach. from Hudson's Justice ever, presented the defendant has no evidence Kennedy noted that Hudson not "d[id] ad- agencies participat- that the law enforcement any pattern dress demonstrated of knock-and- ing engaged pattern in the search in a announce violations” and stated that evidence knock-and-announce violations. The defen- pattern part of such a on the of law enforce- Kennedy’s dant’s reliance on Justice reason- might application ment warrant of the exclu- is, therefore, ing misplaced. sionary remedy to deter that conduct in the 114 (7th Cir.2009) recognize we that the challenge, this (holding, by analogy

704-05 lee- cases, court is afforded considerable that use of district knock-and-announce fact-specific sentencing de- way making not in to search a car could force excessive Martin, exclusion). v. United States join these other terminations. We justify (1st Cir.2008). Because a 92 concluding holding 520 F.3d courts about an individual’s role that the amount determination categorical and Hudson is fаctbound, inevitably crime is effecting entry particular a no-knock used in of force deferential- we review such determinations reality. alter that does not Cruz, 3 ly. States v. United At oral There is one loose end. Cir.1997) (en banc). (1st In the absence gears. shifted argument, the defendant law, determinations will an error of such counsel, he averred ‍‌​‌​‌​​‌​‌​‌‌​​​‌​​​​‌​‌​​‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌​​​‌‍that the Through able only for clear error. Id. be set aside entry overly manner of here aggressive may have violated the Fourth Amendment sentencing guideline The relevant against pоlice use of excessive protection adjust upward a three-level prescribes in the execution of a search warrant. force manager if the “was a or ment Ramirez, See, e.g., States v. United leader) (but organizer not an or supervisor L.Ed.2d activity and the criminal involved five or (1998). Putting any concerns about aside exten participants more or was otherwise forfeiture, argument fails on waiver or this 3Bl.l(b). adjustment § An sive.” USSG the merits. guideline requires steps: under this two first, sentencing court must find that ground common that courts can

It is аctivity criminal involved underlying a claim of excessive force to deter- review or other police unreasonably participants mine if the acted more than five extensive; second, and, thus, court a search violated a wise must carrying out rights. managed super Amendment find that the defendant defendant’s Fourth Boulanger, participants States v. 444 F.3d vised one or more of the other See United (1st Cir.2006). activity. if in that police But even the See United States Al- (1st Cir.2010) (dis Rikabi, 14 infringe the Fourth Amendment this 606 F.3d way, cussing guideline provision). “the fruits of searсh are not related th[at] Ramirez, subject suppression.” 523 Here, not contest the the defendant does at 118 S.Ct. 992. It follows inex- that the con- lower court’s determination charac- orably that whether the defendant spiracy partici- involved more than five complains of which he terizes the conduct In- pants or was otherwise extensive. as a violation of the knock-and-announce stead, challenges the court’s second- he simpliciter rule or as a violation of the managed that he five step dеtermination involving knock-and-announce rule the use participants subsidiary overall and its de- force, exclusionary remedy an of excessive managed partic- termination that he three beyond remains his reach. participants. ular Sentencing. B. linger long need not over this We only narrowly challenge. The defen challenges The defendant focused deny managed not that he integer sentencing equation: one dant does participant a three-level least one other in the criminal the district сourt’s use of just adjustment. managed and if he aggravating enterprise,3 role In review- even findings challenged court’s as to two of the five The defendant has not dis- trict 3Bl.l(b) one, would nevertheless should section determine that the manner in which a warrant was executed violated the rea- to him. apply requirement5 sonableness of the Fourth aggravating The short of it is that the I separately only Amendment. write adjustment role described section emphasize the confluence of the rule 3Bl.l(b) requires only that a defendant today wе announce prevailing participant other in the manage one cov methodological approach to the resolution activity.4 criminal ered See USSG qualified of immunity issues raises sig- comment, (n.2) (“To 3B1.1, § qualify for possibility nificant that conscientious law section, adjustment under this the defen deprived enforcement officers will be leader, the organizer, dant must have been judicial guidance needed concerning the manager, supervisor or of one or more manner in which warrants must be execut- United, рarticipants.”); other see also ed. Flores-De-Jesús, States v. Today’s decision makes it clear that (1st Cir.2009) (stating that a defendant trials, appeals criminal pro- from those qualifies for an enhancement under USSG rarely ceedings, yield judicial will determi- 3B1.1(b) § if authority “he exercised or nations about the reasonableness of the (citation participant” control over another employed force in the execution of the omitted)). and internal marks quotation warrant. Such determinations therefore Consequently, the district court did not err will occur most frequently adjudica- in the applying the three-level aggravating tion brought of civil actions under 42 adjustment in role this case. § U.S.C. under Bivens Six Un- known Named Agents Federal Bureau III. CONCLUSION Narcotics, 403 U.S. 91 S.Ct. (1971). most, 29 L.Ed.2d 619 In although go We need no further. For the reasons all, not of qualified immunity defense above, elucidated we affirm both defen- will be available. In such cases courts now dant’s conviction and his sentence. are authorized to decide the im- qualified Affirmed. munity reaching issue without the constitu- Callahan, tionаl question. See Pearson v. RIPPLE, Judge (Concurring). Circuit join I without the clear and reservation (2009). Pearson, L.Ed.2d 565 In comprehensive opinion of the court. Un- Court made clear that the two-step se- Hudson, questionably, after the exclusion- quence for resolving government officials’ ary rule not an appropriate remedy is claims, qualified immunity previously for- violations of the knock-and-announce rule. Katz, 194, mulated Saucier v. 533 U.S. appropriate remedy 2151, Nor is it an if a 121 (2001),6 court S.Ct. 150 L.Ed.2d 272 Katz, 194, 200, individuals that he was found to have man- 6. Under Sauciеr v. 533 U.S. aged. 2151, (2001), 121 S.Ct. 150 L.Ed.2d 272 a qualified immunity court faced with a defense policy 4. The reason behind this conclusion is (1) alleged had to decide whether the facts occupies high-level a sound. If a by plaintiff shown the made a out violation of position activity, in an extensive criminal a so, (2) right, a constitutional ‍‌​‌​‌​​‌​‌​‌‌​​​‌​​​​‌​‌​​‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌​​​‌‍whether if punishment stiffer is warranted because of right clearly that was established at the time position, that defendant’s not because of the alleged of the defendant’s misconduct. underlings supervises. number of that he Ramirez, 65, 5. See United States v. 523 U.S. 71, 992, (1998). 118 S.Ct. 140 L.Ed.2d 191

116 case-by-ease ad suspicion). sonable This regarded be as inflexible should not “ not, not, permissible yield It ‘a requirement. judication Id. is now will and need rules, that considerations a court to determine highly sophisticated qualified set of danger of judicial economy and the ifs, ands, such as ... by all sorts of and buts adjudication constitutional premature by literally impossible apply] [which is] [to ” on con- resting its decision against counsel officer in the field.’ New York v. Instead, court grounds. Id. stitutional Belton, 2860, 101 S.Ct. that, they at time may determine first (1981), abrogated 69 L.Ed.2d 768 on other acted, actions did not vio- the defendants’ Gant, 332, by v. 556 grounds Arizona U.S. principles. late settled constitutional 1710, (2009), 129 173 L.Ed.2d 485 LaFave, Pearson, however, (quoting “Case-By-Case Adjudi As the Court noted flexibility in versus Procedures": approach, this new cation” “Standardized despite Dilemma, question “is of- reaching Sup.Ct. the constitutional The Robinson 1974 Rev. (internal (1974)) appropriate” 127, and “often beneficial.” quotation ten 141 marks Indeed, omitted). that “the emphasized Id. the Court however, develop, body It can a cеrtainly correct in not- Saucier Court provide meaningful guidance of law to that procedure promotes two-step that the will benefit both law enforcement officers prece- development of constitutional Renbarger, v. 576 and civilians. Baird Cf. especially respect with dent and is valuable (7th Cir.2009) 340, (electing 344 to F.3d that do not arise in questions frequently approach use the Saucier in an excessive qualified immunity a de- cases which case). force Id.; fense is unavailable.” see also Jones contrast, that, By judicial approach a as (6th Byrnes, 978-80 Cir. course, a matter of does not reach the 2009) (Martin, J., in- concurring).7 Cases underlying deprive constitutional issue will volving the manner in which a search war- guidance conscientious officers of the nec- certainly rant fall is executed within this essary they to ensure that execute their might argue One that description. responsibilities compatible in a manner constitutionality particular of a search or Here, with the Constitution. an incom- seizure is “so factbound that the decision plete landscape present constitutional can cases,” provides guidance little for future a practical problem governance sig- Pearson, 555 U.S. at 129 S.Ct. proportions. person nificant “When a can- purpose and therefore it serves no useful apply not know how a court will a settled address constitutional issue. How- situation, principle recurring to a factual ever, principles Fourth Amendment con- person cannot scope know the of his cerning reasonableness the execution of protection, police- constitutional nor can a warrant, no than legal less rules for man know scope authority.” of his probable suspicion, cause and reasonable Belton, 459-60, 101 U.S. S.Ct. 2860. “acquire only through application.” content ... States, rights “If constitutional are to function Ornelas v. United (1996) operational government as limits on rather L.Ed.2d figures rhetoric, than (holding appropriate de novo review for mere of there must probable adequate determinations of cause аnd rea- be an structure of enforcement.” Callahan, importance providing 7. Pearson v. that the of needed con- (2009), 172 L.Ed.2d 565 acknowl- guidance outweighs rigid stitutional adher- edged that in such a situation —where the general avoiding, ence to the counsel of when might escape constitutional issue resolution possible, pronouncements. constitutional indefinitely might court well determine —a Jeffries, Reversing the Order John C. Torts, Sup.

Battle in Constitutional (2009) ‍‌​‌​‌​​‌​‌​‌‌​​​‌​​​​‌​‌​​‌‌​​‌‌‌‌‌‌‌‌​‌‌​​‌​​​‌‍115, 117 (emphasis origi

Ct. Rev.

nal). America,

UNITED STATES

Appellee,

Johnny RODRIGUEZ, Roberto a/k/a

Melendez, Bermudezqui Edwin a/k/a

nones, Defendant, Appellant.

No. 10-1891. Appeals,

United States Court of

First Circuit. Sept.

Heard 2011.

Decided Oct. Masferrer, by appointment

Eduardo court, with whom Masferrer & Associ- ates, on appellant. P.C. was brief for Prevett, Elizabeth L. Federal De- Public Office, fender on brief the Federal Public Defender Office for the Districts of

Case Details

Case Name: United States v. Garcia-Hernandez

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 12, 2011

Citation: 659 F.3d 108

Docket Number: 10-2146

Court Abbreviation: 1st Cir.