The opinion of the court was delivered by: Rakoff, District Judge.
On June 16, 1999, defendant Mark Garrett Brown was indicted for
possession of a stolen 1989 Acura in violation of
18 U.S.C. § 2313 (Count One), possession of a firearm with an obliterated
serial number in violation of 18 U.S.C. § 922(k) (Count Two), and
possession of a prohibited firearm in violation of
26 U.S.C. § 5861(e) (Count Three). Brown subsequently moved to sever the
trial of Count One from that of Counts Two and Three and to
suppress all physical evidence and statements previously taken
Following an evidentiary hearing on September 21, 1999,*fn1
the Court ruled that
Count One must be severed from Counts Two and Three pursuant to
Rule 8(a), Fed.R.Crim.P., and Rule 14, Fed. R.Crim.P. See
September 21, 1999 Transcript ("Tr.") at 90-91. The Court also
declined to suppress the evidence on several of the grounds
argued by defendant but reserved decision on other grounds.
Specifically, the Court, for the reasons stated from the bench,
held that on the facts of this case introduction into evidence of
defendant's statements made at the police station was not barred
by the failure to give him Miranda warnings when he made prior
statements at his apartment, see Tr. at 90, and that the search
of his apartment did not exceed the scope of the warrant, see
id. at 98. However, the Court reserved decision as to whether
the search warrant was issued without probable cause and whether
the police's "no-knock" entry in executing the warrant violated
the defendant's constitutional and statutory rights. For the
reasons set forth below, the Court now finds that the defendant
has failed to sustain these other grounds, and consequently the
Court denies defendant's motion to suppress.
The warrant here at issue was issued by Judge Robert Raciti of
the Bronx Criminal Court, not only on the sworn affidavit of
Police Officer Quiles but also the live testimony of both Quiles
and the confidential informant in the case. In his sworn
testimony before Judge Raciti, the confidential informant, after
stating that he had been inside defendant's apartment on two
occasions in the past week, provided a detailed description of
the apartment and its contents. Among other things, the informant
testified that the defendant had five or six guns in the
apartment, including a sawed-off shotgun and TEC-9 machine
pistol, which he kept in a dresser drawer along with ammunition.
Officer Quiles testified that although he had no information as
to the informant's general reliability vel non, the information
that the informant had provided about the apartment, such as its
location and the color of its door, had proven accurate. On the
basis of this and other testimony, Judge Raciti signed a search
warrant for "all weapons and firearms" at 1006 Gerard Avenue,
Apartment 11-E (defendant's apartment) and authorized a
"no-knock" entry to the premises to avoid endangering the safety
of the police officers and others.
On these facts, Brown, in addition to the arguments already
disposed of on September 21, 1999, contends that no warrant
should have issued because there was only limited corroboration
of the information the confidential informant had provided and
insufficient evidence of the informant's general credibility or
past veracity. The situation here presented differs, however,
from the more customary situation in which the judicial officer
issuing the warrant has no opportunity to hear directly from the
confidential informant. Here, Judge Raciti, having had the
opportunity to hear the informant's live testimony, observe his
demeanor, and put questions to him, found him to be credible.
That conclusion, coupled with the informant's detailed testimony,
provided Judge Raciti with a sufficiently substantial basis for
concluding that probable cause existed to believe that contraband
would be found in defendant's apartment. Illinois v. Gates,
462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United
States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993).
Defendant's other remaining argument is that the "no-knock"
entry was unlawful. It is true that the Fourth Amendment (as well
as 18 U.S.C. § 3109) ordinarily requires that police officers
knock on the door and announce their identity and purpose before
attempting forcible entry. See Richards v. Wisconsin,
520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). However, this
requirement may give way "under circumstances presenting a threat
of physical violence" or "where police officers have reason to
believe that evidence would likely be destroyed if advance notice
were given." Id. at 391, 117 S.Ct. 1416. The Government here
contends that the former exception applies because the sawed-off
shotgun and the TEC-9 machine pistol posed special threats to the
searching officers' safety.
Defendant responds that this is tantamount to the kind of per
se exception to the knock-and-announce requirement that the
Supreme Court rejected in Richards, where it held, instead,
that courts must determine on a case-by-case basis whether a
no-knock entry is justified. 520 U.S. at 394, 117 S.Ct. 1416.
Additionally, several courts of appeals have held that the mere
presence of firearms, absent other evidence indicating a danger
to the officers' safety, is insufficient to justify a no-knock
entry per se. See, e.g., United States v. Moore, 91 F.3d 96,
98-99 (10th Cir. 1996); United States v. Bates, 84 F.3d 790,
795-96 (6th Cir. 1996).
On the other hand, none of those cases involved such dangerous
firearms as here present, see Moore, 91 F.3d at 98
(confidential informant told police that suspects were "armed
with an unknown type of firearm"); Bates, 84 F.3d at 796
(police told there was a handgun inside the apartment). Indeed,
while a handgun might commonly be owned by a lawful and
nonviolent person, federal law outlaws possession of most
sawed-off shotguns and TEC-9 machine pistols because they are
easy to conceal, extremely dangerous, and particularly suited to
close-quarters combat. Accordingly, the Government argues, the
presumptively unlawful possession of such particularly dangerous
weapons raises a special threat to the officers' safety that
warrants a "no-knock" entry.
In the instant case, however, the Court need not decide whether
such circumstances are sufficient to justify a no-knock entry
because it finds that, in any event, the officers here acted in
good-faith reliance on the no-knock authorization in the warrant
itself. See United States v. Leon, 468 U.S. 897, 104 S.Ct.
3405, 82 L.Ed.2d 677 (1984) Although there are few decisions
concerning the applicability of Leon's "good-faith" exception
to a provision
in a search warrant authorizing a no-knock entry, such authority
as exists suggests its applicability, see, e.g., United States
v. Carter, 999 F.2d 182, 185-87 (7th Cir. 1993); United States
v. Moore, 956 F.2d 843, 850-51 (8th Cir. 1992). Indeed, the
Supreme Court hinted as much in Richards, stating that the
"practice of allowing magistrates to issue no-knock warrants
seems entirely reasonable when sufficient cause can be
demonstrated ahead of time." 520 U.S. at 396 n. 7, 117 S.Ct.
In any event, the more general principles underlying Leon
support its applicability to the officers' conduct in this case.
Here the officers, having reasonably requested a no-knock entry
based on their concern about the number and, especially, the
dangerous kinds of weapons in defendant's apartment, reasonably
relied on Judge Raciti's decision to allow them to do so. Even
assuming arguendo that Judge Raciti should have required more
particularized information about the defendant before approving
the "no-knock" entry, cf. United States v. Spinelli,
848 F.2d 26, 30 (2d Cir. 1988), suppressing evidence under these
circumstances would not serve the purpose of the exclusionary
rule, which is designed "to deter police misconduct rather than
to punish the errors of judges and magistrates." Leon, 468 U.S.
at 916, 104 S.Ct. 3405.
In response, defendant argues that Judge Raciti's approval was
legally irrelevant, since "in determining the lawfulness of [a no
knock] entry . . . we may concern ourselves only with what the
officers had reason to believe at the time of their entry." Ker
v. California, 374 U.S. 23, 40-41 n. 12, 83 S.Ct. 1623, 10
L.Ed.2d 726 (1963) (Clark, J., plurality). Closer scrutiny,
however, shows that Justice Clark only meant that,
notwithstanding the presence or absence of provisions in a search
warrant, officers need (and ought) not blind themselves to what
they have subsequently learned. Here, however, the defendant does
not allege that, subsequent to obtaining the warrant, the
officers had learned any new or additional facts that would have
caused a reasonable officer to question the need for a no-knock
entry. Rather, the officers' fears about the threat to their
physical safety was the same at the "time of entry" as it was
when Judge Raciti issued the warrant. Under these circumstances,
the police officers' reliance on the no-knock warrant was
"objectively reasonable," Leon, 468 U.S. at 922, 104 S.Ct.
3405, and no suppression is required.
Accordingly, for the reasons stated here and from the bench on
September 21, 1999, the Court hereby denies defendant's motion to
suppress and grants defendant's motion to sever Count One from
Counts Two and Three. Trial of Count One will commence at 9 a.m.
on October 18, 1999, or as soon thereafter as the matter ...