Appeal from the United States District Court for the District of Columbia (No. 02cr00075-01)
Before: Ginsburg, Chief Judge, and Rogers and Tatel,
The opinion of the court was delivered by: Ginsburg, Chief Judge
Separate opinion concurring in the judgment filed by Circuit Judge ROGERS.
A jury convicted Timothy J. Crippen of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Crippen challenges his conviction on the ground that the district court erred in denying his motion to suppress evidence, namely, guns and ammunition, seized from his residence. Because we conclude the district court correctly denied Crippen's motion, we affirm his conviction.
The Metropolitan Police Department (MPD) learned from a confidential informant that Crippen, a convicted felon, had several weapons in his house in northeast Washington, D.C. The informant mentioned specifically having seen a sawed-off shotgun and two semi-automatic pistols. Based upon this information, Officer John Allen of the MPD's Fifth District sought and obtained a search warrant for the house. Before the warrant had been executed, however, the informant told Officer Allen that Crippen was trying to acquire a rocket launcher. A few days thereafter, the informant reported that he had seen a rocket launcher in Crippen's house. He described it as a shoulder-fired weapon consisting of a green two-piece tube and a "flip up" site.
Officer Allen then asked the MPD's Emergency Response Team (ERT) to execute the search warrant because of "the danger ... of the rocket launcher." During a briefing for the ERT prior to executing the warrant, an officer demonstrated just how quickly a rocket launcher could be armed. He also said if the rocket launcher were fired at an officer "standing in the doorway ... it would go straight through [him]."
The warrant was executed at 7:48 a.m. by a team of more than 20 ERT officers in tactical gear. Before the officers approached Crippen's door, a plain-clothed animal control officer entered the yard to secure Crippen's dog. The lead officer then knocked three times on the front door and announced: "Police with a search warrant." Four seconds later,*fn1 police forced the door open with a battering ram and threw a "flash bang" diversionary device into the house. The officers found Crippen unarmed and asked him whether there were weapons in the house. Crippen directed them to a 12- gauge shotgun and a semi-automatic pistol in his bedroom closet. The officers also found a box of 12-gauge shotgun shells under a bed. They did not find the rocket launcher or the second semi-automatic pistol the informant had reported seeing.
At a pretrial hearing Crippen moved to suppress all the evidence recovered from his home on the ground the officers had "failed to provide a reasonable opportunity for the residents to open the door and ... did not sufficiently announce their authority and purpose." The district court denied the motion, holding:
[A]t the very least there were exigent circumstances that justified the actions of the police. Those circumstances being information received by an informant ... relatively shortly before the entry into the house that inside the house were weapons including a weapon described as a rocket launcher. A weapon ... the dangerousness of which was described by one of the police officer witnesses in this case. ... Furthermore, the Court is of the view that even if there had been ... something falling short of exigency, the degree to which there was a violation of the statute would not warrant suppression of the evidence in this case.
Crippen then entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to suppress.
On appeal Crippen argues the district court should have suppressed the evidence seized from his home because the officers forced entry in violation both of the Fourth Amendment to the Constitution of the United States and of the "knock and announce" statute, 28 U.S.C. § 3109. He posits the district court based its finding of exigent circumstances solely upon the presence of dangerous weapons and thus adopted a "categorical approach" inconsistent with the decision of the Supreme Court in Richards v. Wisconsin, 520 U.S. 385 (1997). The Government counters, first, the district ...