No. 96-7439 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GEARY S. STOWE, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS M. GANNON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether evidence obtained during the execution of a no-knock search warrant should be suppressed where the Illinois statute that authorized issuance of the warrant was subsequently found by an Illinois court to violate that State's Constitution. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7439 GEARY S. STOWE, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A16) is reported at 100 F.3d 494. JURISDICTION The judgment of the court of appeals was entered on November 12, 1996. The petition for a writ of certiorari was filed on January 14, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following his conditional plea of guilty in the United States District Court for the Central District of Illinois, petitioner was convicted of possessing cocaine base with the ---------------------------------------- Page Break ---------------------------------------- 2 intent to distribute it, in violation of 21 U.S.C. 841(a) (1). The district court sentenced him to a term of 108 months' imprisonment, to be followed by a five-year period of supervised release. The court of appeals affirmed. Pet. App. A1-A16. 1. In the early morning hours of November 13, 1995, Officer James Graham of the Springfield, Illinois, Police Department obtained from an Illinois Circuit Court judge a "no-knock" warrant to search an apartment in Springfield. According to the officer's affidavit, the police had received information from "Crimestoppers" on two previous occasions that a man and woman living in Apartment 7 at 837 South Fifth Street in Springfield were selling drugs. The affidavit stated that a reliable confidential source had visited the apartment the night before and had seen petitioner with two loaded handguns and a large amount of crack cocaine. The affidavit further noted that convicted felon Gary Stone, known as "Stef," lived at the apartment with his girl friend, Tiffany Hatchett, and possessed the guns. ("Gary Stone" was an alias used by petitioner.) The affidavit also reported calls complaining of, among other things, heavy traffic in and out of the apartment building. Based on those allegations, and the assertion that the apartment had steel doors, the affidavit requested, and the police received, a no- knock warrant to search the residence. Pet. App. A2 Gov't C.A. Br. 5. Later that same morning, at about 5:25 a.m., the Emergency Response Team of the Springfield Police Department executed the ---------------------------------------- Page Break ---------------------------------------- 3 search warrant. 1. The officers drew their weapons and were dressed in masks, hoods, and dark clothing. They used a steel battering ram to break down the apartment door and to prop it open, and threw a "distraction device" -- a grenade that creates a temporarily blinding flash of light and a loud explosion -- into the apartment. More than ten police officers entered and quickly secured the apartment. They found 86.5 grams of crack cocaine on the kitchen table and a loaded handgun in a kitchen drawer. The officers arrested petitioner. Pet. App. A2; Gov't C.A. Br. 6. Hatchett and Mark Lewis, who was Officer Graham's confidential source, were also present in the apartment when the warrant was executed. Hatchett, clad only in lingerie, was asleep on the "couch in the living room when the officers broke in. She was permitted to dress after officers searched the bedroom. When she selected a pair of pants to wear, officers searched them and found 4,650 in the pockets. After the officers searched the bathroom, they allowed Hatchett to use it, but she declined because the officers would not remove her handcuffs. Pet. App. A3; Gov't C.A. Br. 6-7. 2. Petitioner was indicted on federal charges of possessing cocaine base with the intent to distribute it. After pleading not guilty, he moved to suppress the evidence seized during the search of the apartment. He contended, inter alia that the ___________________(footnotes) 1 No federal agents were present during the search. Pet. App. A3. ---------------------------------------- Page Break ---------------------------------------- 4 search was unreasonable under the United States and Illinois Constitutions, that the no-knock warrant was based on probable cause, and that the Illinois no-knock statute was unconstitutional. 2. Pet. App. A3-A4. The district court ruled that the questions whether the search was legal under Illinois law and whether the Illinois no- knock statute was constitutional were "irrelevant." Pet. App. A4. The court concluded that the only relevant inquiry was whether the search violated federal constitutional or statutory standards. Accordingly, it ordered an evidentiary hearing on the question whether exigent circumstances justified the execution of the search warrant without announcement. Ibid.; Gov't C.A. Br. 3. ___________________(footnotes) 2 The Illinois no-knock statute provides: (b) Upon a finding by the judge issuing the warrant that any of the following exigent circumstances exist, the judge may order the person executing the warrant to make entry without first knocking and announcing his office: (1) the presence of firearms or explosives in the building in an area where they are accessible to any occupant; (2) the prior possession of firearms by an occupant of the building within a reasonable period of time; (3) the presence of surveillance equipment, such as video cameras, or alarm systems, inside or outside the building; (4) the presence of steel doors, wood planking, cross- bars, dogs, or other similar means of preventing or impeding entry into the building. 725 Ill. Comp. Stat. 5/108-8(b) (1992). ---------------------------------------- Page Break ---------------------------------------- 5 Following the hearing, the district court denied the suppression motion. It found, inter alia that, in the circumstances of this case, the no-knock entry was reasonable and the search was conducted in a reasonable manner. Petitioner changed his plea to guilty, but preserved his right to appeal the denial of his suppression motion. Pet. App. A4; Gov't C.A. Br. 3. 3. The court of appeals affirmed. Pet. App. A1-A16. It first rejected petitioner's challenge to the Illinois no-knock statute. Id. at A4-A7. It observed (id. at A5) that in Illinois v. Krull, 480 U.S. 340, 349 (1987), this Court held that evidence obtained by an officer acting in objectively reasonable reliance on a statute later found to be unconstitutional should not be suppressed unless the relevant statute was "clearly unconstitutional." The court also observed that, in Wilson v. Arkansas, 115 S. Ct. 1914 (1995), this Court ruled that, while an officer's method of entry into a dwelling is among the factors to be considered in determining the reasonableness of a search or seizure under the Fourth Amendment, there is no rigid rule of announcement and the presumption in favor of announcement must yield at times to legitimate law enforcement needs. Pet. App. A6-A7. Undertaking a "cursory review" of the Illinois no-knock statute, the court of appeals held that the statute was not so clearly unconstitutional that the police could not have relied on it in good faith. Pet. App. A7. The court noted that, while the ---------------------------------------- Page Break ---------------------------------------- 6 "exigent circumstance[s] listed in the statute are part of the lives of millions of law-abiding citizens, the statute does not require automatic issuance of a no-knock warrant whenever such circumstances exist. Ibid. Instead, the statute requires the judge to whom officers apply for a no-knock warrant to verify the existence of the claimed "exigent circumstance" and leaves to the judge's discretion the decision "whether the facts of the situation warrant such an intrusive entry." Ibid. Finding that the statute was "capable of a constitutional interpretation," the court concluded that it was not "clearly unconstitutional. " Ibid. The court of appeals also rejected petitioner's claims that the warrant was issued without probable cause and that the officers' conduct in executing the warrant was unreasonable. Pet. App. A8-A10. Observing that the officers knew that petitioner was a convicted felon operating under an alias; that his apartment had a steel door; that a large amount of crack cocaine and at least one loaded handgun were present in the apartment; and that that information was only a few hours old, the court concluded that "exigent circumstances made a no-knock search reasonable." Id. at A8-A9. The court further observed that the emergency response team had expeditiously secured and then left the apartment, and that petitioner had not alleged that the police had used excessive force or exceeded the scope of the ---------------------------------------- Page Break ---------------------------------------- 7 warrant. Id. at A10. It therefore concluded that the search was reasonable as to petitioner. Ibid. 3 Petitioner had also contended that the Ninth and Tenth Amendments required suppression of the evidence. 4. See Pet. C.A. Br. 17. He contended that those provisions required the exclusion from a federal prosecution of evidence gathered by state officials in violation of his Illinois constitutional right to be free from unreasonable searches and seizures. Id. at 18. The court of appeals declined to address that argument, observing that petitioner had not shown a necessary predicate for his contention -- i.e., that the search of his apartment violated the Illinois Constitution. See Pet. App. A10-A12. 5 Judge Rovner concurred in the judgment. Pet. App. A14-A16. She agreed with the majority that petitioner's Fourth Amendment rights had not been violated. In her view, however, the majority's discussion of the constitutionality of the Illinois no-knock statute was unnecessary, because it "[would] have no ___________________(footnotes) 3 The court criticized the officers' treatment of Hatchett during the search, but held that petitioner lacked standing to seek the suppression of evidence based on that conduct. Pet. App. A10. 4 The Ninth Amendment provides that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 5 The court of appeals also rejected petitioner's challenges to the admission of certain of his post-arrest statements (Pet. App . A12-A13) and to his sentence (id. at A13). ---------------------------------------- Page Break ---------------------------------------- 8 effect whatsoever on the disposition of [petitioner's] suppression motion." Id. at A14. 4. On December 18, 1996, approximately one month after the court of appeals entered its judgment in this case, the Supreme Court of Illinois held, in People v. Krueger, 675 N.E.2d 604 (Ill. 1996), that the Illinois no-knock statute violated that State's Constitution. Pet. App. B1-B15. ARGUMENT 1. Petitioner contends (Pet- 6-7) that the court of appeals erred in its application of Illinois v. Krull, supra. That claim lacks merit. In Krull, the Court held that evidence obtained by a police officer acting in reliance on a statute later declared unconstitutional should not be suppressed unless the statute was "clearly unconstitutional" when the officer relied on it, so that that reliance could not have been objectively reasonable. 480 U.S. at 349-350. Consistent with Krull the court of appeals reviewed the Illinois no-knock statute and reasonably concluded, in light of that statute's provision for the exercise of fact- specific judicial discretion before issuance of a no-knock warrant, that the statute was not "clearly unconstitutional." Pet. App. A7. While that review may have been "cursory" (ibid.), it was sufficient to determine that the statute was not so facially deficient chat the police could not in good faith have relied on it. In any event, at least two other grounds support the court of appeals' determination that petitioner's constitutional rights ---------------------------------------- Page Break ---------------------------------------- 9 were not violated. First, the officers executing the search warrant relied not only on a statute that was not "clearly unconstitutional," but also on a warrant, the facial validity of which petitioner does not challenge in this Court. As a result, regardless of the constitutionality of the Illinois no-knock statute, the evidence seized during the search of petitioner's apartment was admissible under the good-faith exception to the exclusionary rule set out in United States v. Leon, 468 U.S. 897, 925-926 (1984). Second, irrespective of the officers' possession of a warrant authorizing no-knock entry, the circumstances known to them, and recounted by the court of appeals (Pet. App. A9) -- including the presence in the apartment of petitioner, a convicted felon, in proximity to a loaded firearm and a large amount of crack cocaine -- rendered it reasonable to enter without a prior announcement. See Wilson v. Arkansas, 115 S. Ct. at 1919. Further review of petitioner's claim therefore is not warranted. 6 2. Petitioner next urges the Court to reconsider the good- faith exception to the exclusionary rule established by Krull. Pet. 7-8. In support of that position, petitioner asserts (id. at 7) that the Illinois no-knock statute was sponsored by a ___________________(footnotes) 6 The Court has granted certiorari in Richards v. Wisconsin, No. 96-5955 (to be argued March 24, 1997) , which presents the question whether police officers who possess a warrant to search a dwelling for evidence of felony drug trafficking may always make an immediate entry without a prior announcement before entering the dwelling. This case need not be held for Richards, because the officers in this case had specific information that justified the immediate entry beyond the existence of a narcotics warrant. ---------------------------------------- Page Break ---------------------------------------- 10 legislator who, when he was a prosecutor before his election to the legislature, lost a case in which the Illinois courts declined to "apply a blanket rule" excusing the knock-and- announce requirement. People v. Clark, 494 N.E.2d 166, 168 (Ill. App . 1986). In petitioner's view, that legislator necessarily "perform[ed his] legislative duties with indifference to the constitutionality of the laws [he] enact[ed]." Pet. 7 (quoting Krull 480 U.S. at 352 n.8). Petitioner contends that Krull should therefore be overruled. That contention lacks merit. After declining to assume that "there exists a significant problem of legislators who perform their legislative duties with indifference to the constitutionality of the statutes they enact," the Court in Krull indicated a willingness to revise its conclusions "[i]f future empirical evidence ever should undermine that assumption." 480 U.S. at 352 n.8. In the present case, however, even if petitioner's account of the origins of the Illinois no-knock statute is assumed, arugendo, to be accurate, that account (which describes the activity of a single legislator in a single State) falls far short of the "empirical evidence" required to demonstrate "a significant problem of legislators who perform their * * * duties with indifference to the constitutionality of the statutes they enact." Ibid. Accordingly, petitioner has presented no basis for this Court to reconsider the exception to the exclusionary rule announced in Krull. See United States v. International Business Machines, 116 S. Ct. 1793, 1801 (1996) ("[ E]ven in constitutional ---------------------------------------- Page Break ---------------------------------------- 11 cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some special justification.") (internal quotation marks omitted) . 3. Petitioner contends (Pet. 8-12) that the court of appeals violated his rights under the Ninth and Tenth Amendments when it declined to exclude, under Illinois law, the evidence seized during the execution of the no-knock warrant. This Court's decisions make clear, however, that the court of appeals correctly treated the admissibility of evidence seized from petitioner's apartment as a question of federal law. In Elkins v. United States, 364 U.S. 206 (1960), the Court held that evidence obtained by state officers in violation of the Fourth Amendment must be excluded from federal prosecutions. In so holding, the court explained that "[t]he test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed." Id. at 224. See also Olmstead v. United States, 277 U.S. 438, 469 (1928). The Court reaffirmed that principle in Preston v. United States, 376 U.S. 364 (1964), stating that "[t]he question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search -------------------------------------------- Page Break ---------------------------------------- 12 and seizure had been made by federal officers." Id. at 366. Petitioner's contention is inconsistent with that rule. 7 Petitioner nonetheless contends (Pet. 12) that the Ninth and Tenth Amendments require federal courts to exclude evidence obtained in violation of state constitutional provisions. Petitioner cites no case, and we are aware of none, in which a court has excluded evidence from a federal prosecution on Ninth or Tenth Amendment grounds. This Court, moreover, rejected an analogous contention in Greenwood v. California, 486 U.S. 35 (1988). There, the defendant argued that his expectation of privacy in trash bags left outside of his house should be deemed reasonable as a matter of federal constitutional law because a warrantless search of his trash was impermissible as a matter of California law. Id. at 43. The Court rejected that argument: Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. ***. Respondent's argument is no less than a suggestion that concepts of privacy under the laws of ___________________(footnotes) 7 Nor does United States v. Moore 956 F.2d 843 (8th Cir. 1994), cited by petitioner (Pet. 8), support his position. In Moore, the court held that evidence obtained by state officers in compliance with state law and the Fourth Amendment need not be excluded from a federal prosecution on the ground that the search would have violated the federal knock-and-announce statute, 18 U.S.C. 3109, if it had been executed by federal officers. See Moore, 956 F.2d at 843. That question is not presented here. Moreover, the court in Moore cited with approval United States v. Eng, 753 F.2d 683 (8th Cir. 1985), in which the court rejected the defendant's contention that evidence seized by state officers in conformity with the Fourth Amendment should be suppressed in a federal prosecution on the ground that the officers violated state law. See Moore, 956 F.2d at 847. ---------------------------------------- Page Break ---------------------------------------- 13 each State are to determine the reach of the Fourth Amendment. We do not accept this submission. Id. at 43-44. Petitioner's putative claim under the Ninth and Tenth Amendments similarly seeks to import the laws of each State into federal courts' application of the Fourth Amendment. That claim does not warrant further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS M. GANNON Attorney MARCH 1997