No. 96-1469

In the Supreme Court of the United States

October Term, 1996

UNITED STATES OF AMERICA, Petitioner,

vs.

HERNAN RAMIREZ, Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF

AMERICANS FOR EFFECTIVE

LAW ENFORCEMENT, INC.

JOINED BY THE

INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE PETITIONER.


TABLE OF CONTENTS

INTEREST OF AMICI CURIAE
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT


CONCLUSION


INTEREST OF AMICI CURIAE

Americans for Effective Law Enforcement, Inc. (AELE), as a national not-for-profit citizens organization, is interested in establishing a body of law making the police effort more effective, in a constitutional manner. It seeks to improve the operation of the police function to protect our citizens in their life, liberties, and property, within the framework of the various state and federal constitutions.

AELE has previously appeared as amicus curiae over 100 times in the Supreme Court of the United States and over 35 times in other courts, including the Federal District Courts, the Circuit Courts of Appeal and various state courts, such as the Supreme Courts of California, Illinois, Ohio, and Missouri.

The International Association of Chiefs of Police, Inc. (IACP), is the largest organization of police executives and line officers in the world, consisting of more than 14,000 members in 72 nations. Through its programs of training, publications, legislative reform, and amicus curiae advocacy, it seeks to make the delivery of vital police services more effective, while at the same time protecting the rights of all our citizens.

The National Sheriffs' Association (NSA), is the largest organization of sheriffs and jail administrators in America, consisting of over 40,000 members. It conducts programs of training, publications, and related educational efforts to raise the standard of professionalism among the nation's sheriffs and jail administrators. While it is interested in the effective administration of justice in America, it strives to achieve this while respecting the rights guaranteed to all under the Constitution.

Amici are national professional associations representing the interests of law enforcement agencies at the state and local levels. Our members include: (1) law enforcement officers and law enforcement administrators who are charged with the responsibility of executing and overseeing the process of arrest and search warrants within the bounds of the law; and (2) police legal advisors who, in their criminal jurisdiction capacity, are called upon to advise law enforcement officers and administrators in connection with such matters, including the formulation and implementation of policy on the execution of arrest and search warrants.

Because of the relationship with our members, and the composition of our membership and directors–including active law enforcement administrators and counsel–we possess direct knowledge of the impact of the ruling of the court below, and we wish to impart that knowledge to this Court.

STATEMENT OF THE CASE

The court below, United States v. Ramirez, 91 F.3d 1297 (9th Cir. 1996), ruled that an exigency supporting a no-knock entry of a dwelling accomplished through the destruction of property must be stronger than a "mild exigency" that suffices to justify a no-knock entry without property damage. It ruled that the facts–a suspect being sought at another person's home had knocked down a law enforcement officer in escaping from custody, had declared that he would not do a lengthy federal sentence he was facing, had struck an officer and rammed a police vehicle in another escape attempt, and had threatened to kill witnesses–did not provide sufficient exigency to justify a police officer's breaking of a window and poking a gun through it when executing the no-knock warrant in this case.

SUMMARY OF ARGUMENT

Amici take the position that the "stronger than mild exigency" rule adopted by the court below:

1. Does not comport with existing law on the subject;

2. Is not compelled by this Court's interpretation of reasonableness under the Fourth Amendment concerning the execution of warrants on private premises as established in Wilson v. Arkansas, 115 S. Ct. 1914 (1995);

3. Would place the lives of police officers in serious jeopardy if adopted by this Court; and

4. The officers in this case acted in good faith within the purview of United States v. Leon, 468 U.S. 897 (1984).

ARGUMENT

POLICE OFFICERS NEED NOT POSSESS MORE SPECIFIC EVIDENCE OF DANGER TO THEMSELVES OR OTHERS IN ORDER TO JUSTIFY A NO-KNOCK ENTRY IN WHICH THEY DAMAGE A DOOR OR WINDOW THAN WOULD BE REQUIRED TO JUSTIFY A NO-KNOCK ENTRY MADE WITHOUT DAMAGE TO PROPERTY. TO REQUIRE THE LEVEL OF EVIDENCE OF DANGER INDICATED BY THE COURT BELOW WOULD SERIOUSLY COMPROMISE OFFICER SAFETY.

Amici will not repeat the arguments of petitioner, United States of America, which we support, except to point out that under the rule adopted by this Court in Wilson, supra, when officers are serving warrants on private premises and they have reasonable suspicion to believe they are in peril and need the element of surprise, it should not matter whether the fortuity of an unlocked door or open window gives them the right to execute an unannounced entry without breaking property. As stated in Dalia v. United States, 441 U.S. 238, 257 n.19 (1979), "[O]ften it is impossible to anticipate when [it] will be necessary" for officers to engage in "forceful breaking and entering * * * to effect a warranted search."

In such cases, the primary need for officers to protect themselves–or to avoid the destruction of evidence–is that of surprise. This element of surprise is the same whether or not minor property damage is involved (amici note that in this case the damage was truly de minimis: a garage window was broken as a diversionary tactic).

With knowledge that the person the officers were seeking was dangerous, as found by the magistrate who issued the no-knock warrant under 18 U.S.C. § 3109, the officers were not only justified in using the minor tactic they chose, but reasonable officers in the same position, based upon the totality of the circumstances, undoubtedly would have and could have done the same thing. United States v. Leon, supra. To place a burden of an "extra exigency" upon the officers for minor property damage to protect themselves or avoid the destruction of evidence is not only unsupported by the Fourth Amendment reasonableness requirement, but is counter-productive to officer safety.

The conduct of the officers in this case was entirely in keeping with the interest of this Court in the safety of police officers when performing proper law enforcement functions, e.g., Maryland v. Wilson, 117 S. Ct. 882 (1997) (traffic stops); Maryland v. Buie, 494 U.S. 325 (1990) (protective sweeps of premises); Terry v. Ohio, 392 U.S. 1 (1968) (detentions for investigation). The degree of certainty expected by the court below in order to justify minor property damage is unrealistic and totally out of step with the interest in officer safety exhibited by this Court. There is good reason for concern for officer safety in cases involving the execution of arrest and search warrants on premises.

Amici, as law enforcement administrators, can cite from our experience many instances where officers have been killed or injured while serving such warrants. In some cases there was little to suggest specific danger to the officers as they knocked and announced their entrance and were met with a hail of bullets or other assaultive resistance. In other cases where officers were specifically authorized by a judicial officer to serve their warrants without knocking and announcing, their reasonable conduct was likewise met with deadly resistance.

Calibre Press, Inc., of Northbrook, Illinois, a national training and publishing organization dealing with police officer safety issues, cites these representative examples of the dangers of which we speak:

These are just a handful of examples that amici know from experience exist in great numbers. We know that the service of warrants on private residences ranks among the most dangerous activity in which officers can engage.

We believe the eloquent dissent of Circuit Judge Kozinski in the court below best summarizes the Ninth Circuit's rule in this case: that the court has painted an unreal picture of "every man's 'little castle,'" but that such a "castle" often looks like a fortress to the police from the outside and they can never be certain of the danger that lurks within. Such a quaint view of "every man's 'little castle'" depicted by the majority overlooks the reality of modern criminal conduct that the police must deal with every day.

Judge Kozinski also alluded to the fact that it would hardly deter the police from unconstitutional conduct directed toward one person (the subject of the warrant in this case) when evidence obtained against another (the defendant) is discovered and suppressed. As noted in Durham v. United States, 403 F.2d 190, 196 (9th Cir. 1968): "The price is too high and the advantage too uncertain to make it reasonable to suppose that law enforcement officers will be encouraged to indulge in unlawful searches, knowing that what they find will be suppressed, in the hope of obtaining admissible evidence as remote and fortuitously acquired as this."

Amici submit that the officers in the instant case acted in objective good faith based on the totality of the circumstances known to them at the time of their actions. It is certain that to construct an added exigency evidentiary requirement, as the court below has done, for cases involving minor property damage in serving no knock warrants will cost the lives of many police officers in the future.

CONCLUSION

Amici urge this Court to reverse the decision of the court below on the basis of the precedents of this Court and sound judicial policy.

Respectfully submitted, 

FRED E. INBAU, ESQ.
John Henry Wigmore Professor of  Law, Emeritus
Northwestern University School of Law

WAYNE W. SCHMIDT, ESQ.
Executive Director
Americans for Effective Law Enforcement, Inc.

JAMES P. MANAK, ESQ.
Counsel of Record

Counsel for Amici Curiae

OF COUNSEL:

RICHARD M. WEINTRAUB, ESQ.
National Sheriffs' Association

BERNARD J. FARBER, ESQ.

Note: This copy of the brief was reformatted to webpage size. The Table of Authorities and the addresses of counsel has been omitted.

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