Appeal from the United States District Court for the District of Columbia (No. 03cr00508–01)
Before: Rogers, Tatel, and Garland, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
The government appeals the district court's suppression of evidence the police discovered during a search that, according to the district court, ran afoul of the federal knock and announce statute. The district court, however, failed to make a finding on a critical issue, i.e., whether the police announced ''warrant'' before entering the premises, leaving us unable to perform our appellate function. Accordingly, we vacate the district court's order and remand for further proceedings consistent with this opinion.
The knock and announce statute, 18 U.S.C. § 3109, provides that an ''officer may break open any outer or inner door or window of a house TTT to execute a search warrant, if, after notice of his authority and purpose, he is refused admittanceTTTT'' ''Codifying a tradition embedded in Anglo– American law,'' section 3109 declares the ''reverence of the law for the individual's right of privacy in his house.'' Miller v. United States, 357 U.S. 301, 313 (1958). The principles underlying the statute also form part of the Fourth Amendment's reasonableness inquiry, as the reasonableness of a search of a dwelling may vary depending on whether the police announced their presence and authority. Wilson v. Arkansas, 514 U.S. 927, 930, 936 (1995).
In this case, D.C. Metropolitan Police Officer Anthony Guice, based on his affidavit that a ''special employee'' had purchased drugs from ''Eddie'' at 800 Southern Avenue, S.E., Apartment 1214, obtained a search warrant for the premises. To execute the warrant, Guice and several other officers waited in a stairwell one floor below the apartment until undercover officers stationed in the twelfth floor hallway signaled that the ''target'' had just left Apartment 1214 and was standing in the hallway at the apartment's front door.
Led by Officer Andre Martin, the officers, wearing police jackets and vests and with badges hanging around their necks, rushed up the stairs to the apartment door, where they found appellee Edward Holmes holding a set of keys.
According to Martin, he twice said to Holmes, ''[P]olice, search warrant,'' but -- significantly for this appeal -- the district court never expressly made this finding. Taking the keys from Holmes's hand, Martin unlocked the door and together with several other officers entered and seized a rifle, several rounds of ammunition, and a bag of heroin. No one was inside the apartment. The officers arrested Holmes, and a grand jury later indicted him on one count of unlawful possession of a firearm and ammunition by a convicted felon, see 18 U.S.C. § 922(g)(1), one count of unlawful possession of ammunition by a convicted felon, see id., and one count of heroin possession, see 21 U.S.C. § 844(a).
Before trial, Holmes moved to suppress the evidence seized in the apartment, arguing that the police had violated section 3109. At the evidentiary hearing, the government called Officer Guice, who testified that he reached the apartment door ''two to three seconds'' after the first wave of officers, and that he heard no exchanges between the officers and Holmes. Asked whether the officers had knocked, Guice answered no, explaining, ''Since we had the keys, I didn't feel we needed to knock on the door.'' Defense counsel argued that this testimony demonstrated a violation of section 3109 because the officers ''did not knock, did not announce, did not say warrant, did not say anything to Mr. Holmes before opening the door with the keys.''
The day after Guice testified, the prosecutor received permission to reopen the hearing to call Officer Martin. Martin testified that as he approached the door carrying a battering ram, he said to Holmes, ''Police, search warrant,'' loudly enough that anyone in the hallway would have heard. According to Martin, Holmes asked what was going on, at which point Martin took the keys from Holmes's hand and said, ''This is a search warrant.'' Martin also testified that he had an exchange with Holmes during which Martin asked Holmes which key opened the door, but the district court struck this conversation as violating Federal Rule of Criminal Procedure 16, which requires the prosecution to turn over to defense counsel evidence of any statements by the defendant.
The government argued that if, during the execution of a warrant, the defendant (1) has notice of the officers' authority and purpose and (2) is standing outside the door of his dwelling, a formal knock and announce would be superfluous. Relying on a Fourth Circuit decision, the government urged the district court to find the officers' actions reasonable under the circumstances. See United States v. Dunnock, 295 F.3d 431, 435 (4th Cir.) (holding that knock and announce would have been futile when defendant received ''functional equivalent of notice of authority and purpose'' after police arrested and questioned him about whether he had a key to the door and whether anyone was inside), cert. denied, 537 U.S. 1037 (2002).
In its findings of fact, the district court restated Martin's testimony, but made no finding as to whether Martin actually announced ''warrant'' before taking Holmes's keys and unlocking the door. The court noted only that ''there was a conversation of some kind between Officer Martin and the defendant,'' presumably alluding to the discussion about which key opened the door and possibly to Holmes's asking what was going on. Tr. 2/20/04 at 69. The district court also found that the officers ''knew nothing about whether there was anyone else in the apartment, who the apartment was rented to, who actually lived in the apartment, and did not know for sure that the gentleman they stopped outside the apartment, namely Mr. Holmes, was the 'Eddie' referred to in the search warrant.'' Tr. 2/20/04 at 76. Concluding ...