*1 you were when committed these acts decision was light reasonable in of the 3553(a). policies § against your set forth in children.” AFFIRMED. Garner’s sentence also reflects the seri- provides just ousness of the offense and
punishment. The district court espe-
cially protecting concerned about pub- lic from future crimes believed Garner pose danger to other if children in prison.
not The court then sentenced Garner to 262 in prison, months the low America, UNITED STATES of end of range. the Guideline Recognizing Plaintiff-Appellee, this meant probably Garner would spend the rest of his life in prison, the Kelly ANKENY, Sr., David court urged him to do things while in Defendant-Appellant. prison try rectify what he had done past. No. 05-30457. facts, On these we say cannot that the United States Appeals, Court of 262-month sentence is unreasonable. As Ninth Circuit. government argues, despite age his Argued July 2006. health, Garner remained a threat children. The clearly district court was Resubmitted June 2007. probable aware consequences of its Filed June sentence, yet felt this sentence was neces- sary provide just punishment and to
protect other children from Garner. That might lesser sentence also have been
reasonable particular does not make this Nichols,
sentence unreasonable. See F.3d at 1126. Reflecting the seriousness exploitation children, sexual we previously quite found lengthy sen- Williamson, tences to be reasonable. See (statutory F.3d at 1140 maximum 180- month sentence for distributing child por-
nography unreasonable); see also Stewart,
United States v. 462 F.3d (8th (300-month Cir.2006) sentence for possessing transmitting pornog- child unreasonable);
raphy not United States v. Cunningham, 405 505-06 Cir.2005) (210-month sentence for produc- ing unreasonable). child pornography not We are satisfied from our review of the
record that the district sentencing court’s
Stephen R. Sady, Deputy Chief Federal Defender, Portland, OR, Public for the defendant-appellant. Thus, sentencing. we Section, made at rors were Friedman, Appellate A.
Richard the sen- but vacate convictions affirm the Division, Depart- Criminal resentencing. D.C., tence and remand for the Justice, Washington, ment of plaintiff-appellee. AND PROCEDURAL
FACTUAL
HISTORY Rayley Michele
On October Portland that Defen- to the reported dant, 18-year-old whom she has REINHARDT, A. Before: STEPHEN The al- son, choked and her. kicked *4 TASHIMA, P. and SUSAN WALLACE when place Defendant tercation with took GRABER, Judges. Circuit son to the house where their Rayley went Ave- at 936 N.E. 94th living, located was GRABER; Dissent Judge Opinion Portland, that Defendant in and found nue REINHARDT. Judge Defen- living there. She confronted was supply- her belief that he was dant GRABER, Judge: about Circuit son, point at which drugs to their ing Sr., Ankeny, was David Kelly Defendant attacked her. angry and Defendant became in being of a felon counts on four indicted house ran to another floor He then count of and one of a firearm possession a waving semi-automatic and returned unregistered sawed-off of an possession that she be- Rayley police told handgun. his mo- court denied The district shotgun. using methamphet- was lieved Defendant and, right to reserving the suppress to tion or shoot might that he flee amines and decision, pleaded Defendant that appeal police. him sentenced court The district guilty. to pursuant imprisonment to 262 months’ Rhodes referred Officer was case Act of 1984 Criminal the Armed Career Unit. Reduction the Domestic Violence (“ACCA”) provi- Career Offender and the conversations, reported Rayley ongoing Sentencing of the United sion in- people, other several to Rhodes (“U.S.S.G.”). Guidelines prison infant and a associate cluding an in the house. Defendant, living also were (1) argues that: appeal, On Defendant that, on October Rhodes Rayley told during the search the evidence seized ar- had another and Defendant she sup- have been residence should his a hand- displayed during which he gument (2) should the district court pressed; gun. one count felon all but dismissed (3) should government
possession; background a Rhodes conducted Officer allege Defendant’s required have been he had and found check on Defendant and in the indictment convictions prior and warrants outstanding arrest several beyond a jury a reasonable them to prove including history, criminal an extensive (4) do not doubt; convictions prior his delivery or and possession for convictions ACCA; felonies under predicate qualify substances, at- controlled manufacture (5) in applying erred court the district officer, escape, police to elude tempting guideline. Offender the Career firearm, and rob- of a possession felon with, but charged also had been bery. He suppress that the motion We hold officer of, police assault on not convicted the convictions denied, but properly assault. aggravated er- and that material multiplicitous police options during delay, considered various and the device exploded proceed, including arresting how to Defen- near upper body. his prox- Because of his during stop, ultimately dant a traffic imity to flash-bang device it when ex- necessary it decided that to arrest ploded, Defendant suffered first and sec- police Defendant at the house. The be- ond-degree burns to his face and chest and pose lieved that a street arrest would second-degree upper burns to his arms. public safety risk to because Defendant Meanwhile, officers stationed outside the had a lengthy record of violence and hostil- house shot out the second-story windows Further, ity police. toward the with rubber bullets. securing Officers believed that an arrest outside the house second level of the house threw a second risky would be because there was evidence flash-bang device open into an area. A drug activity and firearm inside the man and woman were lying bed in house, presence in addition to the of a area, explosion and the caused the prison associate of Defendant. bed to catch attempting fire. After A warrant was authorized on November fire, extinguish the officers threw the mat- 18, 2003, on executed November spring tress and box out of a window. 2003, at around 5:30 a.m. The house was *5 Extensive damage was done to the dark, and there was no noise or movement during house the entry. The police shot from within. The Special Emergency Re- windows, out approximately ten kicked in (“SERT”) action operation. Team led the doors, many burned carpet, and made assigned Thirteen officers were to enter holes in the walls ceilings and with the and, total, home partici- officers rubber bullets.1 pated in the execution of the warrant. Thereafter, police recovered a 9mm Stradley Officer yelled “police, search handgun semiautomatic from the crack be- warrant” pounding and, while on the door tween the arm and the bottom cushion of later, about one second used the chair in which Defendant was sitting battering ram to break open the door. police when the entered the They house. Officer Wilcox and entered directed a also recovered a semiautomatic handgun light-mounted weapon into the house. De- adjacent on an chair. police found a fendant had been sleeping on a recliner 12-gauge shotgun sawed-off and a .22- door; near the front he stood up as the caliber long rifle in a upstairs closet in an officers broke down the door. Officer Wil- bedroom and another .22-caliber rifle in cox instructed Defendant to show his the basement of the house. police get hands and Forsyth down. Officer then approximately $3,000, seized ammunition, flash-bang threw a device into the center and suspected drugs drug parapherna- and Forsyth the room. Officer testified at lia. the suppression hearing he heard Of- ficer Wilcox tell Defendant to show his Defendant was indicted on four counts hands; he did not recall him hearing tell of being possession a felon in of a firearm get Defendant to down. The flash-bang possession one count of unregis- of an device delay had a fuse of one to one-and- tered shotgun. thereafter, sawed-off Soon a-half Forsyth seconds. Officer stated government filed notice of its intent to that Defendant went down to the floor seek a sentence enhancement under the loss, $10,000, 1. The decided, owner of the house estimated that the received after con- $14,000 damage repair. cost sulting him to lawyer, pursue He filed not to a civil suit for against City claim of Portland for the the remainder. concurrently. Defendant to run sentences predicate felo- three and identified ACCA timely appealed. suppress to moved Defendant nies. After the search. during seized
evidence argu- briefing, hearing, evidentiary DISCUSSION the motion. denied ment, court the district Suppress to A. Motion guilty a conditional entered Defendant appeal right reserving the contention plea, Defendant’s address firstWe suppress. his motion house denial in the found the evidence because suppressed' have been should Report Investigation The Presentence their announce to knock and failed police level of offense (“PSR”) a base specified by exigen- justified a failure presence, Ca- application included which of force used the extent cy, and because a three- After guideline. reer Offender unreason- the search acceptance rendered police adjustment level downward offense total able. Defendant’s responsibility, catego- history a criminal 34 with level the district opinion, published In a advisory Sentenc- VI, in an resulting ry be of time the amount court found to 327 months. of 262 range ing Guidelines “so entry was and the knock tween the dismiss a motion filed Defendant virtually equivalent time brief of his be- one count all but multiplicitous there entry,” but held that to a no-knock He of a firearm. possession ing a felon justifying exigent circumstances application to the objections filed also Ankeny, action. United guide- the Career Offender the ACCA (D.Or.2005). F.Supp.2d 1000-01 con- prior that his argued line. He both to decide court declined The district *6 under felonies predicate not were victions of of execution manner the overall whether must be convictions prior that ACCA and the because unreasonable was warrant a proved to and in the indictment alleged applied:2 discovery” doctrine “inevitable Sixth with the comport jury in order warrant, “[a]ny excess police rejected court The district Amendment. the fact change” does not used force The court arguments. Defendant’s all of the evidence have discovered would they factors and sentencing various considered that, Thus, court held Id. the house. ad- the Guidelines acknowledged that of the manner objections to general “for the Guide- below go declined visory, but search, requires suppression executing of of seriousness range because line complained those link between causal extensive and Defendant’s the offense evidence,” seizure and the behaviors De- court sentenced record. The criminal here. causal link no such there was imprisonment to 262 months’ fendant 1002. Id. at in possession felon being a each count v. review, United de novo On imprison- and 120 months’ firearm of a 1048, Cir. F.3d Crawford, 372 an un- possession count of ment for district (en 2004) banc), agree with we shotgun, sawed-off registered Ramirez-Sandoval, States v. discovery” circuit, violation. "inevitable In 2. this (9th Cir.1989). 1392, That Williams, doctrine, recognized in Nix first "independent closely concept related to 2501, is 431, L.Ed.2d 377 S.Ct. 467 U.S. doctrine, evi- provides that which if, following source” routine (1984), “by provides that legal means by independent discovered inevitably dence police procedures, the though there even suppressed evidence,” not be should the evidence then uncovered 1396. Id. well. illegal despite a constitutional suppressed will not if Thus, court: even the knock-and-announce vio- we need not resolve whether the aspects lation and the other the search and, knock-and-announce rule was violated so, amounted to Fourth Amendment viola- if whether the justified by violation was tions, suppression is not exigent warranted. Hudson, circumstances. Under
the evidence should
suppressed
not be
and Announce
Knock
any event.
Turning
alleged
first to the
knock-
Defendant asserted at
argu
oral
violation,
and-announce
see
v. Ar
Wilson
ment
this
governed
case is not
by
kansas,
927, 930,
514 U.S.
S.Ct.
Hudson,
police
because
could have ob
(1995) (“[The]
preventing government seeing from or 2. Entry Manner of taking evidence in described a warrant” and that the social costs of exclusion for that, Defendant beyond contends the al- knock-and-announce outweigh leged violations violation, knock-and-announce the benefits of deterrence. Id. at police’s 2165-66. entry manner of violated the Marsh, argument 1045, Defendant also asserted at (9th oral v. Cir.1999) 194 F.3d 1052 that this case is different (noting general from Hudson be- rule that we will not consider cause federal arguments knock-and-announce stat- for the appeal). first time on Ac- ute, 3109, § applies. 18 U.S.C. cordingly, That issue we need not decide whether the was waived. argue, Defendant did not either statute independently might require suppres- Moreover, before the district opening court or in his sion. we note that the search was court, § brief to this applies. that 3109 See not conducted federal officers. See United Kama, 1236, Combs, United States v. 739, 394 F.3d 1238 (9th States v. 394 F.3d 742 n. 1 (9th Cir.2005) (holding Cir.2005) that (stating issues raised § govern that 3109 does not party’s waived); in a opening brief are officers). Smith the conduct of state
751 force ar- of and use property of struction to hold urges us He Amendment. Fourth carry out necessary to were guably and destructive- violence overall that fact effectively. The safely and search unreason- actions were the officers’ ness into the found stuffed gun is war- thus, and, able in Defendant chair which of the cushions ranted. sug- entered police sitting when in which “the manner It is true entered had if officers as much: gests later subject to is executed a warrant Defendant would perhaps gently, more reasonableness.” to its review judicial weapon and his chance to draw have had a 258, 238, States, 441 U.S. v. Dalia injured or or be kill an officer injure or (1979). Un 177 1682, L.Ed.2d S.Ct. himself. killed or use of property destruction necessary Further, not exceed the search did unrea search render a force can excessive warrant, in fa- weighs which scope of the County, v. Benton Boyd sonable. See reasonableness. vor of a conclusion (9th Cir.2004); v. Liston 773, 780 Penn, n. 647 F.2d v. United States 965, 979 Riverside, 120 F.3d County of banc) (“A Cir.1980) (en (9th warranted Cir.1997). officers’ Deciding whether (9th in if it exceeds is unreasonable us to bal requires were reasonable actions of the war- intensity the terms or scope the intru quality nature “the ance rant.”). warrant authorized Fourth Amend individual’s on sion ammunition, guns, the house to search countervailing against interests ment parapherna- documents and associated at stake.” Gra interests governmental See United lia, just that. they did Connor, 490 U.S. ham Becker, 929 F.2d (inter (1989) L.Ed.2d 443 S.Ct. au- Cir.1991) that, warrant (holding where omitted). nal marks quotation premis- the defendant’s thorized search to use es, for officers reasonable it was entry and search this Whether slab up a concrete jackhammer break ques a close reasonably is conducted for evi- to search order backyard in concerns legitimate had tion. underneath). dence entering and search safety their about hand, substan the extent Defendant house. other ing On the use record, particularly violent damage, which included property tial criminal devices, of which one flash-bang evidence crimes; reliable there was of two fa Defendant, weigh in there were aggressive; seriously injured armed and he was house, includ of unreasonableness. a conclusion people vor of other several the search inmate; even where (noting and certain prison See id. a former ing warrant, it can scope of house made is within characteristics physical *8 “intolerable its at because of testified be unreasonable Officers to secure.4 it difficult unclear with record is intensity”). the element The hearing that why it was neces to whether respect due very important surprise was of windows many so to shoot out sary the bat used they factors and those San Jose many so doors. flash-bang down bullets, break ram, rubber tering Cf. Motorcycle Angels Hell’s Charter and distract surprise in order to devices 962, Jose, 974 F.3d 402 City Thus, San de- Club the house. occupants freeway. 1-205 from the separating house and a base- had two stories residence rear ment, at the barrier with a concrete 752
(9th Cir.2005) (holding that it was unrea- a direct result illegal of an search or sei- sonable for officers to cut a zure,” mailbox off its or “found to be derivative of an post, jackhammer sidewalk, and break illegality”); Pulliam, United States v. 405 a refrigerator); City Mena v. Simi (9th Val- 782, Cir.2005) 791 sup- (denying ley, 1031, Cir.2000) 226 F.3d pression because “the indispensable causal (holding that it was unreasonable for offi- connection” between the unlawful act and cers to break down doors that they already discovery absent). of the evidence was open). knew were And in Boyd, 374 F.3d Ramirez, 523 U.S. that, at we held “given the inherently 140 L.Ed.2d (1998), is dangerous device, nature of the flash-bang There, instructive. the police obtained a it cannot be a reasonable use of force no-knock warrant to search a Ap- home. under the Fourth Amendment to throw it proximately gathered, 45 officers an- ‘blind’ into a occupied by room innocent nounced loudspeaker that they had a bystanders absent a strong governmental warrant, broke one window in the interest, careful consideration of alterna- garage, and pointed a gun through the and appropriate tives measures to reduce opening. The Supreme Court noted of injury.” risk It is not clear that the “[e]xcessive or unnecessary destruction of took all appropriate and available property the course of a search may measures to injury reduce risk of here. violate the Amendment, Fourth even instance, For Forsyth Officer at testified though the entry itself is lawful and the the suppression hearing that he was the search are not subject fruits of trained to deploy flash-bang device suppression.” Id. at S.Ct. away from the outer walls of rooms and added). (emphasis Although the Court away from furniture and curtains that concluded that police conduct in that fire, could catch on so he aimed for the did case not violate Fourth Amend- center of the Although room. his concern ment, that, the Court noted had the search safety valid, fire Forsyth threw the unreasonable, been it then would have had flash-bang close to Defendant. to determine “whether ... there was [a] Ultimately, we need not determine sufficient relationship causal between the whether the entry was unreasonable be- breaking of the window and the discovery cause we agree with the district court that guns to warrant suppression of the suppression is not appropriate any evidence.” Id. at 72 n. S.Ct. event. The alleged Fourth Amendment added). (emphasis violation and discovery of the evidence Here, the discovery of guns lack the causal nexus that is required to causally to the related manner of executing invoke the exclusionary rule. the search. police warrant, had a
The principle that exclusionary validity of is not questioned, which and the applies rule only when discovery of guns, evi money, and other contraband were dence results from a Fourth Amendment not hidden. Even without the use of a See, violation well-established. e.g., flash-bang device, bullets, rubber any or (“[B]ut-for S.Ct. caus the other methods that Defendant chal- is ... ality a necessary ... condition for lenges, “the executed *9 suppression.”); Segura States, v. United the warrant they obtained, had and would 796, 804, 468 U.S. 104 3380, S.Ct. 82 have discovered the [evidence] the inside (1984) 599 L.Ed.2d (noting exclu house.” 126 at 2164; S.Ct. cf. sionary rule reaches “evidence obtained as Hector, United States v. 1150, 474 F.3d
753 20, 2003. His on firearms November Cir.2007) suppres- (9th (holding that 1155 made no colloquy and plea plea causal written “[t]he where inappropriate was sion acquisition pos- or separate to reference [a] failure to serve between connection it concedes government The session. highly- is seized the evidence and warrant acquisi- separate of non-existent”). no evidence presented Ac- attenuated, indeed Instead, govern- possession. tion or district court’s affirm the we cordingly, that, Defendant because argues ment suppress to motion of Defendant’s denial multiplici- allegedly to dismiss the moved the evidence.5 plea was guilty his only tous counts after Convictions Multiplicitous B. any claim of error he waived accepted, indictment, any respect to the with that three of asserts Defendant may reviewed to his sentence objection possession in a being of felon counts four error. only plain for dismissed been have firearm should of a mul- they were sentencing because prior argument procedural government’s The a novo whether review de We tiplicitous. in Szalk- The defendant unpersuasive. is de unless the multiplicitous, is sentence multi- object to the not similarly did iewicz before issue to raise the fails fendant in the possession in of felon ple counts for review is court, case in which district objection indictment&emdash;and, indeed, any indictment to the Smith, 424 v. States error. United plain presumably overruled been would Cir.2005), (9th cert. 992, 999-1000 government F.3d still because 1477, 1008, 164 denied, proof S.Ct. 126 opportunity U.S. 547 present have had (2006). stan either acquisition 257 Under L.Ed.2d Defendant possession. separate and of dard, Defendant. agree we objec- tion his lodged at gov- time, appropriate ernment Szalkiewicz, after v. States United opportunity. plain missed Cir.1991) (9th (per 658, 653-54 F.2d 944 applies failed defendant when error that, standard regardless curiam), held we plicitous sentences theissue of multi- raise involved, only there is firearms number of court, district which possession being a felon of one offense Smith, here.See 424 the case F.3d showing that the firearms a there is unless [10]Further, even at 1000. times at different acquired or “stored Further, separateness places.” plain did error standard Further by must be found possession or acquisition Olano, apply, 507 Statesv. see United (or, admitted presumably, jury a 1770, 123 L.Ed.2d S.Ct. U.S. defendant). v. Id.; States see also (explaining (1993) error plain (9th Cir. Keen, n. 104 F.3d plain affectssubstantial is error that is 1997) (same). rights), Defendant’s conviction being multiple counts case makes this indictment in felon firearm, possession rather or acquisition separate than no reference rights, count, single substantial see Defen firearms. the four his possession harmed Torre, , 1 177 possessing each charged with F.3d dant Guam § doctrinehave the Bivens that, ma "under the U.S.C. assertion 5. The dissent's remedy damages tort outrageous made most even the jority's approach effective or feder- violations invading officers employed by al methods constitutional officers.”United enforcement statelaw long the officers so irrelevant would be Cir.2002). Langford, (7th warrant,” dissent had obtained of exclusion, "42 Cir.2002). question Separate from overstated. *10 754 (9th Cir.1995) (noting
1180
“multiple
Defendant contends that his two
convictions, apart
from
prior
concurrent sen
drug
qualify
offenses do not
predi
as
tences, carry
ACCA,
‘adverse
cate
collateral conse
felonies under the
because the
”
maximum
quences
may
ignored’
punishment
not be
for
(quot
those offenses
States,
ing
856,
Oregon
under the
Sentencing
Ball v. United
470 U.S.
Guidelines is
864-65,
1668,
less than
years.
The
105 S.Ct.
ACCA provides
L.Ed.2d 740
(1985))).
that, in order to count as a
drug
“serious
offense,”
maximum
term of imprison
Accordingly, we remand with instruc-
“prescribed
ment
by law” must be ten
tions for the district court to
all
dismiss
years
924(e)(2)(A).
§
or more. 18 U.S.C.
being
but one count of
posses-
felon in
Delivery
aof Schedule II controlled sub
sion of a firearm.
felony
stance is a Class B
under Oregon
law,
475.840(l)(b),
§
Or.Rev.Stat.
and the
C. Predicate Felonies
the ACCA
for
maximum
by
sentence allowed
statute is
years,
161.605(2).
§
Or.Rev.Stat.
matter,
As an initial
Defendant’s
Nonetheless, Defendant argues that
argument
prior
convictions must be
maximum sentence under the
Sen
Oregon
alleged in the indictment and either admit
tencing Guidelines is the maximum term
ted
proved beyond
or
a reasonable doubt
“prescribed by law.”
argu
Defendant’s
jury
by
is foreclosed
Almendarez-
ment
foreclosed
United States v.
States,
224,
Torres v. United
523 U.S.
243-
(9th
Parry,
Cir.2007).
724-25
(1998).
To qualify for a sentence enhancement
ACCA,
under the
a defendant must have
It is irrelevant whether Defendant used
three
prior
or more
convictions for violent
or
firearm,
carried a
because the docu-
or
drug
felonies
serious
offenses.
18 ments associated with the
robbery
924(e)(1).
§
U.S.C.
government
al-
show that Defendant
prosecuted
as an
leged
prior
three
adult,
convictions: a 2002 con-
rather than
juvenile.
as a
Had De-
delivery
viction for
of a Schedule II con-
fendant
prosecuted
been
adult,
as an
law,
trolled substance under Oregon
a 1998 the information would not have alleged delivery
conviction for
of a Schedule II
violation Oregon
Revised Statute section
controlled substance
law,
under Oregon
164.405, and there would not be
judg-
and a 1977 conviction
Robbery
for
II un- ment of conviction
Robbery
II —in-
der Oregon law.
stead, there would
only
adjudication
*11
(a)
overcoming resistance
Preventing or
Or.Rev.Stat.
See
delinquency.
juvenile
of
or to reten-
taking
property
of the
concern-
provisions
code
(juvenile
ch. 419C
immediately
the tak-
after
thereof
Lawler,
tion
State
delinquency);
ing
cf.
(“[A]n
(1996)
or
ing;
99, 103
P.2d
Or.App.
initiated
is not
(b)
prop-
of such
prosecution
Compelling the owner
criminal
adult
Section
petition.”).
to deliver
delinquency
person
filing
erty
a
another
or
juve-
act “of
924(e)(2)(B)
only an
in other conduct
engage
concerns
or to
property
art
does
a term of
in the commission
delinquency,”
might aid
nile
which
of a
conviction
criminal
encompass
theft....
in adult court.
prosecuted
who was
juvenile
de-
approach
categorical
Under
the trans-
(discussing
§ 5032
18 U.S.C.
See
States, Taylor
v. United
scribed
in adult
prosecution
for
juvenile
a
fer of
109 L.Ed.2d
U.S.
juvenile
for
prosecution
of
in lieu
court
(1990),
the fact of
only
look
we
delinquency).
of
statutory definition
and.the
conviction
it
awas
whether
determine
offense
is
remaining question
only
statutory defi-
felony.
Oregon
violent
law is a
Oregon
II under
Robbery
whether
robbery contains
second-degree
nition of
the ACCA.
of
felony
purposes
for
violent
use, attempted
of
element
required
felony” as
“violent
a
defines
The ACCA
physical violence.
use,
use of
or threatened
by imprisonment
punishable
crime
“any
Melton, 344 F.3d
See United
that has
...
exceeding
year
one
for a term
Cir.2003)
(holding
1021, 1026
use, or
use, attempted
an element
has
robbery
definition of
the state’s
where
against
force
physical
of
use
threatened
use or threat-
the element of
face
on its
18 U.S.C.
another.”
the person
force,
robbery
a
con-
physical
use
ened
II
Robbery
Oregon’s
924(e)(2)(B)(i).
§
predicate
a
used as
properly
viction
provides:
statute
ACCA).
that a
hold
therefore
We
under
(1)
crime
rob-
person
A
commits
un-
second-degree robbery
for
conviction
person
if the
degree
in the second
bery
felony
violent
a
law constitutes
Oregon
der
person:
164.395 and
ORS
violates
of ACCA.
purposes
for
(a)
conduct
by word or
Represents
found
Thus,
properly
court
the district
purports
with what
is armed
person
prior convictions
that Defendant’s
weapon; or
deadly
or
dangerous
to be
under
felonies
ACCA.
predicate
actually
(b)
another
person
Is aided
present.
Guideline
D. Career Offender
degree is
(2) Robbery
the second
(2003)6
§ 4B1.1
estab
U.S.S.G.
felony.
B
Class
career offender
is a
that a defendant
lishes
turn, Oregon
§ 164.405.
years old
Or.Rev.Stat.
at least
if
defendant
provides
164.395
offense,
section
Statute
Revised
the instant
time of
robbery
commits
person
either
felony and
is a
offense
instant
substance
a controlled
or
of violence
at-
crime
committing or
if
the course
two
has at least
offense,
defendant
and the
person
...
theft
tempting to commit
vio
crimes
felony convictions
prior
use
the immediate
threatens
or
uses
offenses.
substance
or controlled
lence
person with
upon another
force
physical
Offend-
Career
argues
Defendant
of:
the intent
Sentencing Guidelines.
the 2003
under
sentenced
Defendant
*12
er Guideline
not have
applied harmless,
should
been
then we vacate the sentence and
him,
because the instant offense was not
remand for resentencing. United
v.
States
a crime
Cantrell,
of violence. We review de
(9th
novo
1269,
433 F.3d
1279
Cir.
interpretation
the district
ap- 2006);
court’s
see also
Meny
United States v.
plication of the Sentencing
weather,
(9th
Guidelines.
625,
Cir.2006)
447 F.3d
634
Nielsen,
574,
United
v.
States
371 F.3d
582 (holding that any error was harmless be
(9th Cir.2004).
cause, “under the unusual circumstances
present
in this
appeal,
third-time
we rec
Defendant is correct with re
ognize that
the district court could—and
spect to the
of being
counts
a felon in
impose the same
again”).
sentence
would—
possession of
firearm in
violation
18
Here,
say
we cannot
certainty
with
§ 922(g)(1).
U.S.C.
“‘Crime of violence’
Defendant would not have received a lower
does not include the offense of unlawful
sentence if the district
”
court had calculated
possession of a
firearm
a felon....
range
his Guidelines
properly. According
1;
§ 4B1.2
U.S.S.G.
cmt. n.
see also Stin
ly, we remand for resentencing.
States,
son v.
36, 45-47,
United
508 U.S.
1913,
(1993)
113 S.Ct.
fendant respect incorrect with to the REINHARDT, Judge, Circuit count of possessing an unregistered dissenting: shotgun sawed-off in violation of 26 U.S.C. I. 5861(d). Introduction
§ “The possession of an unregis tered firearm of the kind in [26 defined I agree with the majority that the law § 5845 ... U.S.C.] involves the substantial entry enforcement officers’ into David risk of necessary violence to label the pos Kelly Ankeny’s home without complying violence,” session a crime of United States with the constitutional “knock and an- Dunn, (9th 615, Cir.1991), 946 621 F.2d requirements nounce” does not necessi- and Defendant’s sawed-off shotgun is of suppression tate of the evidence. See 5845(a).7 type §in described Maj. Op. at 750. After Hudson v. Michi- - The district court gan, -, therefore should U.S. 2159, 126 S.Ct. 165 have applied the Career Offender Guide (2006), L.Ed.2d 56 such knock-and-an- only line 4, possession Count of an nounce violation longer justifies no unregistered shotgun. Instead, sawed-off remedy suppression. Id. at 2168. Be- the district court erred imposing a Ca conclude, however, cause I that the inten- reer Offender sentence on all If counts. sive and violent search that ensued was district court incorrectly applies the Sen unreasonable due to the extreme use of tencing Guidelines its error is not excessive force and that the evidence 7. The 2004 commentary § to U.S.S.G. 4B1.2 retroactively. United Morgan, States v. 376 explicitly provides 1002, being pos- Cir.2004). felon We need not type session of the of firearm described decide whether the applies amendment retro- 5845(a) § U.S.C. is a crime of actively, though, Dunn, violence. If because under Count change this from properly the 2003 Guidelines is “clar- was treated a crime of violence ifying’' rather applies than it in 2003. “substantive/' States, 796, 104 U.S. Segura v. United should the unlawful search during seized (1984); New L.Ed.2d 599 S.Ct. dissent. compelled I am suppressed, Harris, 110 S.Ct. 495 U.S. York v. determining wheth- avoids majority (1990); 109 L.Ed.2d Ankeny’s invasion military-style er Ramirez, 523 U.S. destruction home, concomitant (1998)- our 140 L.Ed.2d —confirms of serious infliction property physical is unwarranted conclusion *13 Ankeny’s violated injuries, personal 2168; Hudson, at S.Ct. in this case.” by It does so rights. Amendment Fourth J., concurring). (Kennedy, at 2171 id. unlawful of how regardless holding opinion Scalia’s Part IV of Justice While may actions officers’ enforcement law the rejection sup- Hudson’s attempts to link appropri- not been, is “suppression violating the remedy as pression Fourth alleged ate,” “[t]he because knock-and-announce Amendment’s Fourth discovery of and the violation Amendment trend abandon- to a broader requirement that is nexus the causal lack evidence the contexts, exclusionary rule in other ing the exclusionary rule.” the to invoke required cuts concurring opinion Kennedy’s Justice majori- the Contrary to Op. at 752. Maj. direction, cau- opposite much in very the suppres- however, remedy of view, the ty’s tioning that: a case such in hardly inappropriate is sion the exclu- operation continued [T]he ex- executed this, a search where as rule, as settled sionary defined re- directly force and unreasonable cessive Today’s doubt. is not in precedents, our discovery of the seized evi- the sults spe- only determines decision search was the unlawful Because dence. of the knock-and-announce context cific discovery of the causally related to is not sufficient- a violation requirement, hold prior cases evidence, our and because discovery of the the later to ly related when may appropriate that suppression suppression. justify to evidence just not search—and manner added). 2170 (emphasis mis- Id. at “preliminary entry or the initial Hudson, at 2164—exceeds S.Ct. step,” Hud- to extend determining whether In warrant, hold that I would of the the terms context,” of the “specific beyond the son remedy in Ank- proper is suppression requirement, as and-announce knock his con- therefore reverse eny’s case here, we should us to do asks government viction. instruction that Kennedy’s Justice respect of the exclusion- operation “the continued Michigan Be Not Should II. Hudson by our rule, and defined settled ary as Extended Id. In doubt.” is precedents, Hud- opinion in dissenting to his Appendix held Hudson, Supreme Court of 41 a list son, provides Breyer remedy for Justice longer a nois suppression from 1914 decisions Supreme Court knock-and- violations constitutional of evidence suppression “requiring at 2168. requirement. announce court to (or lower remanding for seized however, over Court, was divided determination) pri- ain suppression Kennedy, make holding. Justice its basis for or illegal arrest following home vate opinion provided concurring whose J., dis- (Breyer, 2186-88 Id. at vote, search.” joined in majority’s fifth Hudson im- reflect decisions senting). These opin- Scalia’s of Justice through I III parts stake, we are at rights portant join Part Court, declined but ion for the appro- whether consider of cases— trio IV, “[a] which stated ” priate remedy for the unlawful violent Maj. Op. house.’ at (quoting Hud- son, 2164). search that Ankeny’s private occurred of S.Ct. Although majority home. purports not By holding that the exclusionary rule Hudson, holding extend the opin- its does not apply to searches conducted with ion does extend far beyond the force, excessive majority over-looks “specific context of the knock-and-an- prior our decisions applied that have or ” requirement nounce .... Id. at 2170 appropriateness assumed of suppres J., (Kennedy, concurring). Applying the sion when a “warranted search” is never employed Kennedy,
test Justice I would theless rendered unreasonable because “it Ankeny’s hold that in case the unconstitu- in scope intensity exceeds or the terms of tional “sufficiently search is related to the Becker, warrant.” United States v. discovery later of the evidence justify (9th Cir.1991) 929 F.2d 446-47 (quot suppression.” Indeed, here, Id. there is *14 Penn, ing United States v. 876, 647 F.2d no any attenuation It kind. is the un- (9th Cir.1980) (en banc)); 882 n. 7 see also lawful search that directly itself led to the Chen, States v. 979 F.2d discovery of the at evidence issue. (9th Cir.1992). “[W]here there is a ‘fla grant disregard’ for the terms of the war May III. Evidence Suppressed Be rant, the district may court suppress all of Where, Here, As Officers it Seize evidence, including evidence that was as a Direct Result of a Search Exe- Chen, tainted the violation.” cuted with Unlawful Excessive 717 (quoting at United States v. Med Force lin, (10th Cir.1988)). 842 F.2d These cases have never been overruled Although the majority correctly recog- and they are in respect no inconsistent nizes that “[ujnnecessary destruction of with Hudson. Because intensity of the property or use of excessive force ren- can violent search of Ankeny’s home demon der a unreasonable,” search and states strated “flagrant disregard” for the “[wjhether entry this and search were warrant, terms of the thereby turning it reasonably conducted is a close question,” warrant, into a general necessary it is and Maj. Op. at ultimately it avoids decid- appropriate suppress the evidence that ing that issue by holding that al- “[t]he the officers pursuant seized to that war leged Fourth Amendment violation and the rant. Id. discovery of the evidence lack the causal
nexus that required is to invoke the exclu- Discovery A. of the Causally Guns is sionary rule.” Id. at 752. citing- After Related to the Unlawful Search several cases for proposition that caus- ality a necessary is condition applying Contrary to the majority’s conclusion, exclusionary rule, majority con- the substantial Fourth Amendment viola- cludes that “the discovery of guns was tion in this case—the use of extreme and not causally related to the manner of (not exe- excessive force in the merely search cuting search,” because police “[t]he of an existence initial unlawful entry or had a warrant” and “[e]ven without the use a “preliminary Hudson, misstep,” of a flash-bang device, bullets, 2164) rubber or S.Ct. at the direct cause of the —was any of the other methods that discovery Defendant guns. of the Under the control- challenges, police ‘the would law, where, ling executed here, as discovery obtained, they warrant the evidence is the “direct result of an have discovered the [evidence] inside the search,” unconstitutional the evidence is a flash threw officers The law enforcement at U.S. Segura, to exclusion. subject exploded Ankeny that device at bang (“Evidence as obtained S.Ct. him, the second secured badly burned of an unconstitutional result a direct bang flash floor, device threw second subject to ex- plainly or seizure search floor, on setting area on open into an clusion.”). lying. people two a bed which fire noted, the Court I have as Meanwhile, shot bullets into viola- the knock-and-announce wrote out shot story windows—indeed the second entry” only the “manner tion concerned majority then states ten windows. at misstep,” “preliminary aor “[thereafter, recovered” “ensuing, an followed which room, living in the guns semiautomatic two (Kennedy, at 2171 Id. search....” lawful upstairs bed- and a rifle shotgun Kennedy ex- As Justice J., concurring). the basement. room, rifle in another results from violation “a when plained, added). Be- (emphasis Maj. at 748-49 Op. ensuing, pause but of a 20-second want of the result direct the immediate cause discloses lasting five hours lawful search the discov- at issue here was violent the failure wait criminality, evidence discov- it follows ery guns, of the be described properly cannot the door to the causally related ery guns evi- discovery of having caused in Hud- search.1 Unlike unconstitutional added). In this (emphasis Id. dence.” *15 intervening son, lawful was no here there officers however, enforcement case, law of causation. chain the that broke search led direct- search the overall executed “exclusionary rule reach- Accordingly, the ex- with evidence the seizure ly to obtained evidence primary ... [the] es indeed, force; the ” and excessive treme .... search illegal of [this] result direct illegality. Giv- with permeated search was S.Ct. at Segura, U.S. in employed force the excessive en that States, 232 U.S. v. United (citing Weeks un- search the entire rendered this case (1914)). L.Ed. 34 S.Ct. Amendment, the Fourth under the lawful to the “lawful resemblance no Excluding bears Ev- search the B. The Benefits “entry” in the initial that followed Outweigh search” the Costs idence Indeed, circum- the facts and Id. Force Hudson. Excessive in Which Cases opposite polar the are in this case stances Unconstitution- Renders Search short, is Hudson In in Hudson. of those al
entirely inapplicable. causality, presence the In addition rationale, descrip- cost-benefit majority’s own case the
Moreover,
in this
rejection
to Hudson’s
was critical
its conclusion
which
belies
the events
tion of
knock-and-an-
rule for
exclusionary
the cause
was not
search
the unlawful
sup-
violations, strongly favors
After
nounce
Ankeny’s weapons.
discovery of
directly obtained
the evidence
pression
down
police broke
how the
explaining
unlawful, ex-
with
conducted
home,
majority
entered
door
at
force. See
cessive
inside
happened
describes what
then
exclusionary rule
“the
Although
entry.
2165-68.
to the unlawful
subsequent
house
per
against
was directed
cipal excessive force
best known
some reason
majority, for
1. The
sons,
applied
property, and
force
members,
property dam
asserts that the
to its
dwelling
had entered
the officers
"entry” rather than
during the
done
age was
after
executing the search
process of
in the
patently incor
This is
during
"search.”
warrant.
rect,
prin
any event irrelevant.
and is
has
applied
never been
except where its
basis of their experience and cause them to
deterrence
outweigh
benefits
its substan-
“wait longer than
requires.”
the law
Hud-
costs,”
tial
Id. at
son,
benefits of
Compared
tactics would
employed.
“costs” of
allowing sup-
Because of the
pression
rule,
for the
opportunity
careful,
knock-and-announce
plan-
deliberate
which Justice
opinion
ning,
Scalia’s
it
possible
asserts
to minimize the risks to
dangerous
set
criminals free for
while
the same time ensuring
trivial
generate
reasons and
a constant
protection
of individual constitutional
claims,
flood of such
2165-66,
id. at
rights.
type of claim
by Ankeny
asserted
should
As to the “deterrence benefits” of exclu-
rarely
arise
and therefore would be unlike-
sion, in Hudson Justice
opinion
Sealia’s
did
ly to produce a swarm of cases involving
not seem to find much that was beneficial
Also,
excessive force searches.
officials
about
as the result of a viola-
and courts are far
competent
more
to dis-
tion of the knock-and-announce rule. See
cern which extraordinary tactics constitute
Hudson,
reasonable particular wait time in a case” a search force, executed excessive before entering' usually a matter of calcu- — however, the benefits of deterrence are lating, wholly subjectively the appropriate *16 tremendous, and much greater than in (internal number of seconds. Id. at 2166 Hudson. principal benefits of deter- quotations omitted). fact, and citations In rence are avoiding unnecessary destruc- any without difficulty, we in past tion private of property and, impor- in a most case remarkably similar to the one tant, reducing the risk of serious down, injury before us struck as constituting ex- and owners, death to force, home cessive their specific families such tactics as the guests, their including ones used in See, innocent case before chil- us. e.g., dren. In Boyd Ankeny’s case, v. Benton County, rubber bullets (9th Cir.2004) through windows, rained (holding that officers had one set of employed officers “constitutionally Ankeny caused injury excessive” force serious by by “blindly” throwing throwing a bang grenade flash flash bang device toward him into an apartment that occupied five by eight burned him badly, while a second individuals). Finally, on side, the cost group of officers set a occupied bed by knock-and-announce rule could deprive others on by fire hurling a second flash some officers of their ability to make on bang device in their direction. At the time the spot discretionary judgments on the the officers assault, launched their they Justices, however, 2. Five expressed cy the view security in the home are central to the that the protects knock-and-announce rule far Fourth guarantees,” Amendment’s stating greater interests and values than Justice Sca- ’’[s]ecurity that subject must not be to erosion opinion lia’s acknowledged. by id. at See contempt.”); indifference or id. at 2180 J., (Kennedy, concurring) J., (stating "priva- (Breyer, dissenting). the Fourth of in contravention our citizens child one-year-old aware when Amendment. and in fact house of occupant an one-year-old began
the attack this case demon- of Finally, the facts set not be right Certainly, present. and disdain professionalism of strate lack is far night-clothes” “in one’s killed afire or of part on of individuals rights for the than worthy protection grave and more that is not officers law enforcement some in upon [that be intruded not to “right possibility cured likely to be 2167. Id. at attire].” Hudson, § 1983 action. Cf. lawsuit under of a fear Although the who officers executed officials some may deter § 1983 professional but anything U.S.C. search were war- dangerous and in such engaging messages, “the described, from text they how conduct, not believe I do all” when like time “good fun” and suffi- damages would for civil potential they caused from enforcement ciently deter law In burns. serious Ankeny to suffer at issue force of excessive type using to each officers wrote messages, three text (stating “[a]s 2167-68 id. at See here. other: an know, liability is effective civil
far we (1) TIM, JUST WE WERE “SORRY viola- to knock-and-announce deterrent” NE ... IT WAS OFF.. JUMPING fear tions). whom the official It is the (2) ... FUN!”; CRAZY “IT WAS BIG ordinarily effec- liability is of civil EX- ... WELL BY ALL FUN HAD neces- is a tive deterrent LAID ON GUY WHO THE FOR CEPT compliance order ensure remedy in sary DEGR ... 2ND THE FLASHBANG would One Amendment. Fourth A HALF MUS- ... MISSING BURNS belligerent only the most expect that (3) LOTS TACHE”; TIME FUN!! “BIG officials, lev- at whatever law enforcement GLASS, BAD GUY BROKEN OF of individual disdainful el, most those or FLASHBANG, THE ON JUMPED force type employ rights, BY ALL.” HAD TIME GOOD It is in this case. by the officers applied suppressing evi- sum, the costs likely however, officials, are least who such far are force excessive in cases of alone, dence espe- liability by civil deterred those than less substantial re- practices general light of the cially in deterrence, namely benefits Moreover, in- whereas the *17 indemnification.3 garding property, life and of human protection priori officials a forming law enforcement Indeed, our anal- significant. far more are be an available never will suppression exclusionary rule is that the warrant, confirms ysis re- first obtain they if remedy absolutely neces- but only appropriate, or destructive excessive of how gardless women, men, and children house, sary, protect to of and search the invasion very lives being and well physical indi- whose encourage some only to serve by the inten- jeopardy in may be placed force on overwhelming to unleash viduals J., (citing Monell dissenting) (1983) (Marshall, usually from “[Pjolice insulated are officials 3. Services, 436 City Dept. Social v. New York law- hardship associated any economic 2018, 611 658, 713, L.Ed.2d 56 98 S.Ct. scope U.S. within the on conduct based suits Suing J., Project, (Powell, concurring); (1978) gen- are authority.Police their 781, Court, Yale L.J. in Federal Police 88 indemni- and are counsel erally provided free Suing H. (1979)); accord Schuck, 810 scope of their Peter within conduct fied for 325, LaHue, official U.S. remedies 460 Citizen authority.” Briscoe Government: (1983). wrongs 1108, 83-88 38, 96 75 L.Ed.2d 103 S.Ct. & n. tional and calculated use of excessive force following a preliminary misstep or initial in violation of Fourth Amendment. entry, whereas the search Ankeny’s home involved an search that unlawful Majority’s Holding
C. The Will Lead directly discovery resulted Unacceptable Results and is weapons.4 by Unsupported Upon the Cases Second, reliance on Segura
Which It Relies
United
States,
U.S.
104 S.Ct.
Although
majority
explicitly
does not
(1984),
L.Ed.2d 599
similarly
misplaced
state or
hold that
may never
case,
just
this
as five Justices found
a remedy
for the use of excessive force
such reliance unhelpful in Hudson. See
warrant,
while executing a
causality
its
Hudson,
J.,
126 S.Ct.
(Kennedy,
argument
logical
followed to its
conclusion
concurring);
J.,
id. at
(Breyer,
dis-
just
does
that —it creates a
excep-
blanket
senting). Segura
illegal
involved an
tion to the
war-
exclusionary rule for unreason-
rantless
ably
entry, followed 19
executed searches
hours later
whenever the offi-
possess
cers
lawful
pursuant
a valid
search
This,
search
to a
warrant.
lawful warrant
course,
will inevitably
lead most un-
obtained in the interim with
fortunate consequences, because under the
information that was
unrelated
the war-
majority’s approach even the most outra-
rantless entry. The Court
sup-
refused to
geous
employed by
methods
invading offi- press
evidence,
not because of a lack of
cers would be irrelevant
long
so
as the
causal relationship to the conduct of the
officers had obtained a warrant. Certain-
search, but because the search was lawful
ly, at least five members of the Hudson
in every respect. The search was conduct-
Court could not have
intended
result so
pursuant
ed
to what the Court determined
contrary to our
fundamental Fourth
to be a lawful warrant and was conducted
Amendment precepts.
in a lawful manner.
813-14,
See id. at
cases cited
S.Ct. 3380.
majority
do not
applied
attenuation
only
support its holding.
See
Maj. Op. at 752.
19-hour-old
Here,
initial entry.
First,
above,
course,
noted
inappo-
Hudson is
point
entire
is that the search
site because it involved a
produced
the seized evidence was con-
lawful
Although
majority
majority
claims
upon
relies
the dictum in Ramirez
Ramirez,
States v.
523 U.S.
that Justice Scalia
endorsed
Part IV of
(1998)
140 L.Ed.2d
"bears some similari-
it errs.
Kennedy
Justice
did not
case,”
ty to this
inapposite
it is
for the same
part
concur in that
opinion.
Justice Scalia’s
reason as
only
Moreover,
Hudson—it involved
the "man-
meaning
of the dictum is far
ner in which
entry
accomplished,”
("
from clear. See id. at 2170
‘destruction of
breaking
single
aof
window of the
property
defen-
in the course
may
of a search
violate
garage,
dant’s
and not an
Amendment,
unlawful search.
the Fourth
though
even
the en-
*18
Moreover,
Id. at
763 on the illegality the overlook was, do not ac- force and with excessive ducted have been could that the search ground unlawful. cordingly, to do refuse Nor we legally. conducted Hector, 474 F.3d v. Third, States United For reason. that for evidence suppress compel the Cir.2007), not (9th does 1150 unlawful who conduct an example, officers (holding 1154-55 at holding. Id. majority’s ob- have often could warrantless search appropriate an is not suppression that it. lawfully executed a warrant tained a war- to serve failure remedy for officers’ a causal not absence do find We before, during, or the rant to defendant discovery of the evi- relationship between search). If officers the immediately after in such search unlawful and the dence the war- serve to obligation their violate Rather, suppress we circumstances. “immediately it present failing to rant Reilly, 224 v. States United evidence. home,” at 1154 id. aof a search after Cir.2000) (9th (suppressing 986, 995 F.3d added) (quoting (emphasis “ the fail- refusing ‘to excuse evidence Martinez-Garcia, 1212 n. F.3d where warrant a search ure to obtain but Cir.2005)), be the (9th it cannot simply did cause but probable had that has evidence seizure of of the cause ”) (quot- a warrant.’ attempt obtain however, Here, the ex- already occurred. F.3d Mejia, ing United States could what that transformed force cessive Cir.1995)). to a pursuant lawful search been have search oc- unlawful into an warrant valid Ankeny’s Home D. Search recov- the officers directly before curred Was Unreasonable also enabled the evidence ered that Having determined easi- more weapons to retrieve officers in an ex- remedy appropriate may be an as- Moreover, benefits the deterrence ly. that this case, hold I would force cessive evidence ob- suppressing sociated of the force intensity” the “intolerable case force excessive use through tained unreason- the search rendered employed and far worthier greater many times are 446; see Becker, at also F.2d able. “relatively [de- small than protection at 778-79. Boyd, of failure case benefit] terrence Id. the warrant.” copy of present em- tactics Ankeny contends have once officers (suggesting excessive constitute by officers ployed warrant, have little they valid obtained 44 offi- deployment force, including warrant present fail to incentive operation, the style military in the cers it). they execute when aof by means of the home entry forcible ram, kicking down battering majority extent to the Finally, house, the in the room every doors evidence asserts opinion into the bullets rubber myriad firing of enforce- if the law discovered been windows, upstairs all the shattering house lawfully executed ment “inher- throwing of two all, the and above force, argu- excessive without warrant to- devices flash-bang ently dangerous” It is its cause. advance does not ment knowledge individuals, all with three an wards conduct who that officers case often the among infant year old a one have con- instead might unlawful F.3d at Boyd, of the house. however, That, residents one. a lawful ducted unnecessary, how- case, it is this causality lack of establish insufficient *19 use of the the officers’ ever, beyond to look To valid. the unlawful to render or their to hold flash-bang devices we two illegal, contrary, if the search “use of force was constitutionally exces- flash-bang blindly device into a room with- sive.” In respect, our decision in out warning excessive, is it is unquestiona- Boyd There, controls. Id. we held that ble that tossing these “explosive, incendi- used excessive officers force when they ary weapon[s]” directly at three human “ threw a device flash-bang ‘blind’ into a beings any notice, without as the officers occupied by room bystanders, innocent ab- here, did constitutes constitutionally exces- strong interest, sent a government careful Also, sive force. Id. Boyd, as in in which consideration of alternatives and appropri- officers knew there eight peo- were five to ate measures to reduce the injury.” risk of ple sleeping id., apartment, officers Here, Id. one of the devices was hurled here knew least four to seven Ankeny’s direction as he was complying adults a one-year-old child resided at with the officers’ instruction to him get Ankeny’s Moreover, home.5 the evidence down on floor. The other was then of severe property destruction by noted thrown toward a occupied by bed two indi- majority breaking many win- —the viduals. dows and doors without a clear explanation Compared to the deployment of the sin- any as to necessity strengthens the con- — gle flash-bang Boyd, device in the officers’ clusion that the search was unreasonable use of two such devices in the instant due to its “intolerable intensity.” Maj. Op. action and the throwing deliberate of them at 751. Certainly, there is no evidence in in the direction Ankeny and the two the that suggests record that the officers other occupants of the house whom the any took substantial steps to reduce the officers had no reason believe had com- risk of injury. view, In my military style any mitted offense far was more excessive. invasion type of the that occurred here is After breaking down the door with a bat- justified only in rare circumstances and ram, tering an officer that Ank- demanded only resort, as a last at least where inno- eny, who had been sleeping in a recliner in cent civilians and children are known to be room, his living lie down on the floor. present in the house. Ankeny
Although did not resist or act in a manner, threatening an officer lobbed the IV. Conclusion flash-bang him; device result, towards as a exploded device I and caused first and reiterate here what we stated have second-degree burns to his face and before: “[n]owhere chest. protective is the force Similarly, an proceeded officer who to an fourth amendment more powerful upstairs bedroom tossed a second than it device sanctity when the of the home is onto the floor the edge of the bed involved.... The sanctity of a person’s where a man and a home, woman lying, were perhaps our last real retreat in this setting the bed on fire. If throwing a technological age, lies at very core of potentially dangerous circumstances leaving apartment. nessed 374 F.3d at searching officers faced in the home in danger 777. The weapons created these Boyd remarkably were also similar to—and heightened if by the fact that apart- "the anything perilous case, more Ankeny's ment had a loft from which a shooter could than — where Ankeny possessed believed placed posi- in a vulnerable handgun. semi-automatic Boyd, the offi- they tion as apartment....” entered the Id. cers believed that robbery the armed suspect Despite potential dangers, such we held that might apartment, be in the that a stolen .357 the officers did not demonstrate strong magnum well, might be there as government that another permit interest that would offi- potential occupant buy tried an assault blindly cers deploy inherently such an dan- rifle, and two "armed gerous individuals” wit- device. Id. at 779. *20 amendment.” animate which rights League Protective Police Angeles Los Cir.1990) 879, 884 Gates, principle omitted). Bearing this
(citations firm Kennedy’s Justice mind, as well continued “the in Hudson statement ... exclusionary rule operation (Kennedy, doubt,” 126 S.Ct. agree I cannot concurring), J., lawfully fact that mere Court this bars warrant search obtained directly dis- the evidence suppressing from and unlawful the violent during covered According- actually occurred. ly, I dissent. America, STATES
UNITED Plaintiff-Appellee, WASHINGTON, Demetrius Bennie Defendant-Appellant. 06-30386.
No. Appeals, Court Circuit. Ninth 8, 2007. March and Submitted Argued 19, 2007. June Filed