Suppression not remedy when rule violated

Listen to this article

Hon. Richard A. Posner

The Seventh Circuit on Dec. 31 held that the exclusionary rule does not require suppression of evidence seized after the police violated the knock-and-announce rule.

Two unidentified informants reported to police in Indiana that drugs were being dealt from a home. The police lawfully searched the garbage from the house, finding evidence of marijuana use, but not in such a quantity that would provide probable cause the residents were dealers rather than merely consumers.

The garbage also contained a sheet of paper with names and dollar figures written on it. Based on the evidence, the officers prepared an affidavit and obtained a search warrant for the home.

A gun was found, and one of the residents, Christopher T. Langford was ultimately convicted in federal court for being a felon in possession of a firearm.

Langford appealed, and, in a decision by Judge Richard A. Posner, the court of appeals agreed that the warrant was not supported by probable cause, but held that the good-faith exception applied, and suppression was therefore not required.

The court also held that, even if the officers failed to comply with the knock-and-announce rule when executing the warrant, suppression of evidence is not required as a sanction for that violation either.

"Drug Ledger"

The court began by considering the list of names and numbers, labeled a "drug ledger" by the officers in the affidavit supporting the warrant.

The only explanation given by the officer as to why the list constitutes a drug ledger was that he found the rounding of the numbers to the nearest $25 suspicious. The court found, however, that no evidence provided a rational basis for that conclusion.

Calling the list "insolubly ambiguous," and setting it aside, the court considered the other evidence, and concluded it was insufficient to support probable cause.

The court observed, "The ratio of drug users to drug dealers is very high, so that if this warrant is lawful, the implication is that any hostile neighbor can report a person as a drug dealer and if the police look in his garbage and find that he is among the several million users of ‘recreational’ drugs in this country the police can search his house for evidence that he is a dealer even though they have no reason to think that he is one."

The court then distinguished cases from other jurisdictions in which the tipster was a reliable confidential informant, or where the garbage search turned up evidence of dealing, as opposed to mere use.

Nevertheless, the court held that, "[t]hin as the basis of the warrant … was," suppression of the gun was not required, relying on the good faith exception in United States v. Leon, 468 U.S. 897 (1984).

The court noted that there was no indication the officers were acting in bad faith, and added, "Police are not legal experts and are entitled to rely upon a warrant duly issued by a judicial officer on the basis of an affidavit that so far as the police know is accurate and complete, so that the only issue is its legal sufficiency, a matter for the judicial officer to determine."

Knock-and-Announce

The court then turned to Langford’s argument that suppression is nevertheless required because the police broke down the door o
f the house without knocking and announcing themselves, and without any emergency that would justify a no-knock entry.

The government contested the allegation, but the court concluded it need not decide the factual question, because suppression is not required, even if a violation occurred.

The court wrote, "As we said in United States v. Jones, 149 F.3d 715, 716-17 (7th Cir. 1998), and now elevate to a holding, ‘it is hard to understand how the discovery of evidence inside a house could be anything but "inevitable" once the police arrive with a warrant.’"

	Links Seventh Circuit Court of Appeals Related Article Case Analysis

The court acknowledged the authority to the contrary, but found it unpersuasive, stating, "The concern that animates those decisions is that unless evidence obtained in a search that violates the knock-and-ann-ounce rule is ex-cluded, there will be no deterrent to such violations. But that is not true now that 42 U.S.C. sec. 1983 and the Bivens doctrine have made tort damages an effective remedy for constitutional violations by federal or state law enforcement officers."

The court further concluded that the evidence need not be suppressed, because of the "inevitable discovery rule" of Nix v. Williams, 467 U.S. 431, 448 (1984), reasoning, "the police in our case would have discovered the defendant’s gun even if they had given him enough time to answer their knock before they broke the front door down."

Adding that the purpose of the knock-and-announce rule is not to protect people from searches or limit the obtaining of evidence by means of searches, the court concluded it would be illogical to use it to exclude evidence, and affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.