forms the basis for Counts Two and Three of the indictment),
hundreds of rounds of ammunition (including live and spent shell
casings for rifles, shotguns and machine guns), drug residue and
paraphernalia, and tools and keys designed for the theft of
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 can be
reached, and will be followed promptly by trial on Counts Two and