Mary C. Geddes

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

DISTRICT OF ALASKA

550 W. 7th Avenue, Suite 1600

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxx

)

Plaintiff, )

) DEFENDANT'S ADDITIONAL

vs. ) BRIEFING IN SUPPORT OF

) MOTIONS TO SUPPRESS

xxxxxxxxxxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

1. The Warrantless Unannounced Entry by the Police Through the Closed But Unlocked Exterior Door Was Not a Legally Permissible Entry into a Common Area.

The physical layout of xxxx, the southeast entry way to Apartment #5, and the interior of the entry way is illustrated in Defendant's Exhibits C-K, and the Plaintiff's Exhibits. The plaintiff's photographic exhibits which were taken during the nighttime on January 25, 1997, depict the condition of the entry way on that occasion. Reference to these exhibits is probably necessary for a through understanding of the following.

Located at xxxx is an building which was described by the police as an "apartment complex." The building runs west from Ingra to an alley which runs north-south from 14th to 15th. (Ex B) There are five rental units within this building. Five mailboxes are affixed to the exterior of the building outside the Ingra Street (west) entrance marked "1". It is Apartment #5 which is the focus of this motion. Apartment #5 is located on the east side of the building. The shape of the building was once described by Officer Kantor as "unique" during his application for the state court search warrant. (Ex 8)

On the south side of the property, immediately next to the building, there is a thoroughfare or driveway just barely two car-widths wide. There are five entrances to the building. None of the entrances face north. The one entrance on the west (Ingra) side is marked "1". The one entrance on the (east) alley end is marked "4." The other three entrances are on the south side of the building.

The east end of the building has two stories. The south-facing entrance which closest to the east (and alley) encloses the stairs, which provide the only access to Apartment #5 on the second floor. Apartment #4 is directly below #5, and as previously mentioned, has an exterior entrance marked as "#4." Maintenance man Tim Hoffman, whose family used to own the building, testified that the two apartments on the east/alley side of the building used to be numbered 4A and 4B.

The exterior of the south-east entrance, with which this court is concerned, has the appearance of a house. The entrance has one window, which on January 25, was draped by orange curtains. It was secured by a door which has two locks. There was no number on this entrance. There was no doorbell on this entrance. There is a window in the upper half of this door which was covered by another set of orange curtains. Photos taken by a police officer called to the scene shortly after the police secured entry to Apartment 5 show these curtains were closed. However, three police officers recall that - despite the curtains - they could nevertheless see the interior of the entryway. They were able to see that there was a washer and a dryer inside. Without knocking, they entered through the exterior door, which was unlocked. The co-investigating officers, Kantor and Padgett, were directing the assistance of the uniformed officers. There was a flight of stairs directly in front of the entrance. At the top of these steps was a door, undistinguished by number or other identification, which the police believed to be the entrance for the second-story apartment. This was the destination as planned by Kantor and Padgett..

Prior to going up the stairs, one of the uniformed officers, Officer Allen went to the left, into the small area where the two coin-operated machines were present. He did this in order to determine no one was present who could create a risk to officer safety. A photograph taken that evening by an APD officer showed articles of clothing in a laundry basket on top of one of the machines. No articles of clothing nor any other items were examined by the police . Behind the washer and dryer, on the left side of the stairway, was another door. This door was not marked by number. Officer Kantor, the officer first in the door and up the stairs, was unaware that this door provided a second entrance for Apt. 4. Officer Padgett assumed that this door went to another apartment. However, there was no "knock and talk" or any other type of contact attempted with the occupant(s) of the downstairs-apartment (#4) until after the police had entered Apartment #5 and arrested Mr. xxxxxxxxx.

Tim Hoffman, the maintenance man, testified that the washer and dryer located in the alley end of the building were for the use of the building's tenants. Tenants were provided with keys to the area, but so frequently lost their keys that the area was often left unlocked. However, Hoffman testified the tenants of Apartments #4 and #5 were able to secure the downstairs area for themselves from inside with the deadbolt lock, and that he had done that himself, for security reasons, when he lived in the downstairs unit.

All of the testifying police officers characterized the downstairs area of the southeast entrance as "a common area", and therefore one they felt justified in entering without additional information or announcement. The police proceeded to go directly inside of the southeast entrance without having undertaken surveillance, without having requested additional surveillance, and without attempting contact with the building owner or building residents known to the police in order to make an informed decision about the legitimacy of their approach.

The officers clearly had no desire to announce their presence in advance of confronting the occupant or occupants of Apartment #5, as their approach to the building was surreptitiously made, by plan. Officer Allen testified that he and Officer Stafford had been directed to meet the co-investigating officers at the Texaco station, and that all three police cars - the two and one unmarked vehicles - had been left a half-block away from 1411 Ingra, on purpose, so that any occupant of the unit they hoped to confront would not be alerted to their arrival.

A warrantless search of a house is per se unreasonable, Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), and absent exigency or consent, warrantless entry into the home is impermissible under the Fourth Amendment. Steagald v. U.S., 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); U.S. v. Alfonso, 759 F.2d 728, 742 (9th Cir. 1985).

Evidence recovered following an illegal entry into a home is inadmissible and must be suppressed. See Wong Sun v. U.S., 371 U.S. 471, 484-87, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963). The legality of entry to execute a search warrant or to effect an arrest is a question distinct from whether the arrest or search is properly based upon probable cause or issued warrants. An illegal entry taints a search incident to such an arrest. E.g., U.S. v. Davis, 461 F.2d 1026 (3d Cir. 1972); U.S. v. Cisneros, 448 F.2d 298, 303 n.6 (9th Cir. 1971).

The facts of this case are almost perfectly on all fours with those analyzed in United States v. Fluker, 543 F.2d 709 (9th Cir. 1976), which found a warrantless and unannounced foray by the police into an entry way violated the search warrant requirement of the Fourth Amendment. As in Fluker, "this building was not one containing many individual apartments, but rather was comprised of only two apartments. " 543 F.2d at 716. The stairway which the police ascended led only to one apartment. One of the lead police officers who directed the entry was unaware at the time of entry that the entry way provided access to any apartment other than the one upstairs. In fact, Officer Padget later attempted to contact the occupants of #4, not through the laundry room, but by going outside the building and knocking at the east side entrance, which was labeled "4." Judging from the exhibits, and from the number of entrances, it is apparent that each of the apartments in this "unique" building had its own individual entrance.

It is especially significant that curtains draped the exterior window and door of the southeast entry way, as their use clearly and objectively represented an objective expectation of privacy for the tenants. While the door to the entry way was not locked at the time of the police arrival, the exterior door featured two locks. While the area where the machines were located could be used by other tenants, the building maintenance man indicated that the corridor area could be secured solely from the inside of the entryway by the residents of that section of the building, and that he did that himself, especially at night, when he resided on the premises.

This court should find that the initial entry by the police through the exterior door and up the stairs to the defendant's interior door was a violation of the Fourth Amendment, and of the federal knock-and-announce standards.

The Fourth Amendment protects legitimate expectations of privacy from intrusion by governmental authority. If the inspection by police does not intrude upon a legitimate expectation of privacy, there is no "search" subject to the Warrant Clause. Illinois v. Andreas, 463 U.S. 765 (1983); see Walter v. U.S., 447 U.S. 649, 663-65 (1980). Thus, in Katz v. U.S., 389 U.S. 347 (1967), the Court stated that the Fourth Amendment's reach "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Id. .at 353. In this case, the occupants have "exhibited an actual (subjective) expectation of privacy," by the placement of the curtains over the exterior window and door and as manifested by the presence of private items of clothing in the washing machine area. Id at 361. This subjective expectation of privacy should be one that " society is prepared to recognize as 'reasonable.'" Id. The Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise "illegitimate." See, e.g., Hudson v. Palmer, 468 U.S. 517 (1984) (inmate had no reasonable expectation of privacy in prison cell justifying protection of Fourth Amendment).

Whether or not a search is executed with or without a warrant, 18 U.S.C. § 3109 requires agents to give notice of authority and purpose and be refused admittance prior to any forceful entry. The requirements apply to locked and unlocked doors alike. Sabbath v. U.S., 391 U.S. 585 (1968); U.S. v. Beale, 436 F.2d 573 (5th Cir. 1971), cert. denied, 404 U.S. 1026 (1972); U.S. v. Case, 435 F.2d 766 (7th Cir. 1970); see U.S. v. Doering, 384 F. Supp. 1307 (W.D. Mich. 1974). Although § 3109 speaks in terms of search warrants, it is equally applicable to warrantless

arrests. Sabbath v. U.S., 391 U.S. at 588; Miller v. U.S., 357 U.S. 301, 306 (1958);, 765 F.2d 890, 896 (9th Cir. 1985); U.S. v. Crawford,657 F.2d 1041 (9th Cir. 1981).

The requirements of the federal knock and announce law applies to an iron gate separated from the main door by an alcove, U.S. v. Mareno, 701 F.2d 815 (9th Cir. 1983), vacated and remanded, 469 U.S. 913 (1984), on remand, (previous procurement of search warrant sufficiently distinguishable from illegal entry into alcove to purge taint of illegal entry)

2. A "Knock and Talk" Procedure Which Necessarily Involves an Unannounced Nonconsensual Protective Search of the Premises Entered Should Invalidate Any Consent to Enter for that Limited Purpose.

A search conducted pursuant to consent may not exceed the scope of the consent which was given. In this case, if there was any consent to enter, which the defendant adamantly disputes, it was limited to the purpose of talking. The Supreme Court, in Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801 (1991), enunciated an objective reasonableness standard for measuring the scope of a consent. This is true even though a suspect may have given consent through words or conduct. Consent may be implicitly or expressly withdrawn. Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); U.S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971) (when defendant became aware that the agents were inspecting and seizing his personal papers, he attempted to withdraw his consent to search for narcotics; seizure of personal records held invalid under defendant's limited consent to search for narcotics). In Jones v. Berry, 722 F.2d 443 (9th Cir. 1983), cert. denied, 466 U.S. 971 (1984), had the defendant revoked her consent before the agents completed their search of the second residence, U.S. v. Ward, 576 F.2d 243 (9th Cir. 1978), any further search for the documents subsequent to the revocation of consent would have been illegal.

Consent cannot be obtained by law enforcement officers through subterfuge. See, e.g., ; U.S. v. DiGiacomo, 579 F.2d 1211 (10th Cir. 1978) (no valid consent where agents had suspect empty pockets after under compulsion of circumstances); U.S. v. Bolin, 514 F.2d 554 (7th Cir. 1975) (consent invalid where given after threat to arrest defendant's girlfriend); Graves v. Beto, 424 F.2d 524 (5th Cir.) (defendant deceived), cert. denied, 400 U.S. 960 (1970). In this case, the defendant was never asked for his permission to enter, much less for his permission to come in and conduct a search.

A protective sweep is "without question a 'search.'" Maryland v. Buie, 494 U.S. 325, 335, n. 3, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court limited its approval of a protective sweep to that "'quick and limited search of premises'" incident to the execution of an arrest warrant. The Court held that,

" As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officers in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id., at 334, 100 S.Ct. at 1098.

To reach our conclusion today, therefore, we need not disagree with the Court's statement in Chimel [v. California, 395 U.S. 752, 767-67, n.12, 89 S.Ct. 2034, 2041-42 n.12, 23 L.Ed.2d 685 (1969)] that "the invasion of privacy that results from a top-to-bottom search of a man's house [cannot be characterized] as `minor,'" nor hold that "simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require," ibid. The type of search we authorize today is far removed from the "top-to-bottom" search involved in Chimel; moreover, it is decidedly not "automati[c]," but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.

Buie, Id. at 336, 110 S.Ct. at 1099.

In this case, there was no execution of an arrest warrant nor felony arrest occasioned by any exigency. Therefore, all evidence obtained pursuant to the protective sweep through the apartment must be suppressed as it was obtained in derogation of the defendant's Fourth Amendment rights.

3. Was the Police Officer's Identification that the Four Officers Were From the "Anchorage Police Department" and his Subsequent Statement that He or They "Needed to" "Come Inside" the Apartment "to Talk" to xxxxxxxxx a Statement of Implied Authority To Do So?

When law enforcement officers have acted unlawfully, any consent given in response to their action is unlawful if it is "inextricably bound up with the illegal conduct and cannot be segregated therefrom." See, e.g., U.S. v. Allard, 600 F.2d 1301 (9th Cir. 1979)

When an entry is demanded under claim of general governmental authority and the officers are without a search or arrest warrant, the action is "colorably lawful" coercion. See Bumper v. North Carolina, 391 U.S. 543 (1968) (officers claimed falsely that they had a search warrant--submission to a claim of lawful authority did not generate a permissible or valid consent); Amos v. U.S., 255 U.S. 313 (1921) (entry demanded by federal agents into home without warrant); U.S. v. Rodriguez, 525 F.2d 1313 (10th Cir. 1975) (acquiescence to a claim of valid authority not enough).

In this case, the statement was hardly a request, but a demand. xxxxxxxxx was not asked if he was willing to talk to the police, nor was he given an option to step outside his apartment. The fact that he acquiesced to both a show of force and to a statement which indicated the police already had the intention (the need) of entering his home hardly amounts to a sufficient consent. It was the plan of the police to both make a show of force, and to do a search of the premises if provided an opportunity.

According to Officer Padget, the decision to do a "knock and talk" followed a discussion with Sergeant Hooks, the officers' shift supervisor, in which the men considered getting a search warrant but opted otherwise. The officers then formulated a plan to do a "knock and talk" at the upstairs apartment. For the second time that evening, they enlisted the assistance of two uniformed police officers, Allen and Stafford, to provide them with "back-up" and "security." The purposes of the knock and talk, Kantor said, was "to identify occupants" and "to find out what was going on." Padgett testified that "if we do a knock and talk, and we are allowed entry, we will do a search." They would search for guns and for people. Padgett hoped to find Ruth Wade and Roy Best.

The four officers approached 1411 Ingra, Kantor knowing "where we were going" based on the information obtained from Cornell Bennison. The information received from Cornell Bennison was that: he had gotten crack from the upstairs apartment at 1411 Ingra; that there was a lot of crack there; that it was on a plate, on a shelf in a cupboard; and that it was located near the front door of the apartment.

The four officers, having all entered the building through the downstairs and looked in the laundry area, proceeded directly up the stairs to the apartment door. Two of the officers were in uniform. All officers were armed. Officer Kantor had his badge displayed. According to Officer Padget, the police "stacked up", "lin[ing] up as we approached the door." One reason for given for that formation was that the staircase was very narrow and two people would not have fit with ease on the same step, but would have had to "squeeze." Officer Padget was the second in this formation, standing directly behind Officer Kantor who was one to three steps in front of him, and who stood directly in front of the door to the apartment. Padget could hear Kantor clearly from his position, and he was also able to hear music and a later a voice from the other side of the door.

The two uniformed police officers said that initially they were not on the stairs directly behind Padgett and Kantor, but instead stayed at the bottom to block the two possible exits. Padget recounted the entry as follows. As Officers Kantor and Padget reached the top of the stairs, they paused briefly and listened for voices. They heard music, but no voices. Officer Kantor knocked on the door. A male voice asked, "who is there?" After Officer Kantor stated, "Anchorage Police", the door was opened "maybe a foot." Officer Kantor displayed his badge with one hand and held a flashlight with the other. He shined the flashlight on his badge, which was on the front of his pants. Incredibly, Padget said that although he was directly behind Kantor, one to three steps below him, and the man who opened the door was above Kantor on a higher step, he had no difficulty observing Kantor's display of his badge, which was on his belt buckle or the occupant's gestures.

According to Padget's testimony, the man who answered the door made a motion across his body. To Padget, this gesture meant "like come on in." Padget agreed that he had not provided any description of either gesture previously in his police report, even though he understood the imperative of chronicling an entry for Fourth Amendment reasons.

Padget further testified that after the man made the gesture, Kantor entered, and then "we all entered the apartment" in a matter of seconds. Padgett said that the entry of the apartment was "by procedure again", with Kantor staying with the man in the kitchen while the other officers conducted a "sweep" through the entire area of the apartment. The purpose of the sweep was to see if other persons were present "who could cause harm and to find out if Ms. Wade and Mr. Best were in the apartment.". Padget went into the room on the right side of the apartment; Officer Stafford went to the left room, to the west side of the apartment. The left side of the apartment had a bedroom type area and a additional small room which alternatively could be described as a walk-in closet. Padget described the unit as a small apartment, with a "galley-type" kitchen.

No persons or guns were located in this initial search by the three officers. However, Officer Stafford did observe during the course of this "protective sweep", "in plain view", a small baggie of suspected marijuana in the bedroom area of the apartment. Officer Stafford testified that the purposes of a protective sweep were: for officer safety, and "for plain view". He said he was to "look for what's in sight" such as "guns, knives, or drugs."

Padget described xxxxxxxxx' demeanor when initially encountered by APD as "calm,""cooperative" and "doing anything that he was requested [to do]". However, his manner changed. He became "agitated," "sweating profusely," and "very verbal." xxxxxxxxx said "we [the APD] shouldn't be there", and "that he didn't live there". While "he was not actively pursuing us" and "not striking us", "he wouldn't stand still" and "he wouldn't sit still." Padgett stated, "After exhibiting that behavior, he was placed in restraints", in handcuffs. This was done for "officer safety" according to Padget and Kantor because xxxxxxxxx appears "athletic, in good shape."

Officer Stafford testified that Mr. xxxxxxxxx was asked more than once for his consent to search the apartment, but he refused. None of the other police officers testified that he had been asked for consent, or had refused it. Kantor's version of the events varied in some significant aspects. First, although all important decisions were made jointly in the case with his co-investigating officer Padgett, he denied that there had been any discussion about obtaining a search warrant before approaching 1411 Ingra for the "knock and talk." Second, he said that, after xxxxxxxxx answered the door, he "told him 'we need to come in and talk to you.'" This statement was in conflict with his earlier description in his police report of January 25 in which he stated that "I told him I needed to come in and talk to him."

The police did not know xxxxxxxxx. They did not ask him any questions prior to gaining entry to the apartment. Nor did they have any physical description of the person known as "Keith" or "K.D." of whom Cornell Bennison had spoken.

Kantor did not have his gun out as he entered. He elaborated on the entry. "When I entered Mr. xxxxxxxxx was on my left", still standing at the door. Kantor "moved", "directed", xxxxxxxxx' person to the right out of the way of the door and the other officers' entry. Kantor said the other officers took between 10-30 seconds to do their protective sweep before returning to the kitchen. Officer Allen testified that xxxxxxxxx was patted down within 30 seconds of the police entry and handcuffed within 0-three minutes of entry. He testified that he stood in the doorway between the kitchen - the area of the apartment immediately inside the apartment door - and the living room or recreation room so as to prevent Mr. xxxxxxxxx from moving into that area.

Officer Allen also said that he had looked inside the freezer compartment in the kitchen, because of Mr. xxxxxxxxx' proximity to it, and saw what he believed to be crack. This was prior to any application for a search warrant. He told Officer Padget about his discovery. Officer Padget testified that the contraband seen by the police officers prior to making application for a search warrant were marijuana.

Kantor said that after 'moving' xxxxxxxxx to the side in the kitchen area, he had immediately conducted a pat-down search of Mr. xxxxxxxxx "for weapons" and that he had felt only a big wad of money. Kantor said that Mr. xxxxxxxxx was not handcuffed at the time of this pat-down. xxxxxxxxx "wasn't saying much" at this time, according to Kantor. xxxxxxxxx testified he was asking what were the police doing. Kantor said he told xxxxxxxxx "why we were there" and "was there anything he wanted to say." Both Kantor and xxxxxxxxx agree that Kantor asked xxxxxxxxx if he could take the wad of money out of his pocket, and that xxxxxxxxx said go ahead. but they disagree as to whether xxxxxxxxx was in handcuffs. xxxxxxxxx said he was in handcuffs and didn't feel he had any choice in the matter. Rationally inconsistent with Kantor's claim is the fact that Kantor himself removed the money from Mr. xxxxxxxxx' pants pocket, rather than asking xxxxxxxxx to take it out. Kantor agreed that he had taken the money out of xxxxxxxxx' pants pocket in order to look for evidence.

xxxxxxxxx testified that he answered the door, expecting one speaker but finding four officers. He also recalled that Kantor told him he needed to come inside to talk to him. He said his hand gesture was a "quizzical" one, "like what's this about" and not one that invited entry. xxxxxxxxx stepped to the side of the door as Kantor came in because it was clear to xxxxxxxxx that "they were going to come in" and he didn't believe he had any choice. He asked the police what they were doing as they searched his apartment. He asked the police to call his building manager, and had the phone taken away from him by the police after the building manager returned his call. He was asked for his consent and he refused to give it. The police searched and handcuffed him. They opened cabinets and looked inside the freezer.Although "under certain narrow circumstances...courts will infer consent from the cooperative attitude of a defendant," U.S. v. Rosi,27 F.3d 409, 411 (9th Cir. 1984), "the existence of consent to a search is not lightly to be inferred," U.S. v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1989, amended 1990); U.S. v. Patachia, 602 F.2d 218, 219 (9th Cir. 1979), and the government "always bears the burden of proof to establish the existence of effective consent." Shaibu, 920 F.2d 1423, 1426; U.S. v. Rosi, 27 F.3d 409, 412; U.S. v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). That burden is heaviest when consent would be inferred to enter and search a home. Shaibu, 920 F.2d at 1426. Furthermore, other Courts have recognized that, while "knock and talk" procedures can be conducted lawfully, they involve a clear potential for abuse. U.S. v. Powell, 929 F. Supp 231, 232 (W.Vir. 1996).

The officers' entry violated the Fourth Amendment of the United States Constitution because Mr. xxxxxxxxx was not asked and never gave the officers his consent for them to enter. Because that entry was illegitimate, the evidence seized in its course is tainted within the meaning of Wong Sun v. U.S., 371 U.S. 471, 484-87, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963), and, as such, is inadmissible.

The seminal case in the Ninth Circuit controlling the issue of implied consent to enter a dwelling is Shaibu. In that case, four police officers went to Shaibu's apartment looking for a third party. The police knocked on the door, identified themselves and, when Shaibu walked back into the apartment, leaving the door open, they followed him inside. Shaibu did not ask them to wait, leave, or produce a search warrant but once inside, he did give explicit consent for them to search the apartment. The officers found evidence of bank fraud which was subsequently used to indict Shaibu. Holding that mere retreat into a home cannot, on its own, serve as a basis on which to imply consent for officers to enter, however, the Court of Appeals found the officers' entry to be in violation of the Fourth Amendment bar of nonconsensual warrantless searches, and reversed the District Court's denial of the defendant's motion to suppress.

Shaibu stands for two general propositions. Firstly, "...in the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent." Shaibu, 920 F.2d at 1428. And secondly, "free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority." Shaibu, 920 F.2d at 1426.

The police reports indicate that Mr. xxxxxxxxx neither assented nor objected to the officers' entry into the apartment. His lack of objection, however, is legally irrelevant given Shaibu's clear holding that "the government may not show consent to enter from the defendant's failure to object to the entry." Shaibu at 1427. In that case, Mr. Shaibu turned around and walked into the apartment, leaving the door standing open, when the officers identified themselves. He did not object when the officers followed him. The Court found that his actions did not warrant an implication of consent, holding that a mere failure to object cannot constitute the basis for an implication of consent. Id. Compare also U.S. v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993)(applying Shaibu, but finding the defendant's step backward, nod, in combination with his unequivocal vocalized expression of assent, "ok", sufficient to establish in those circumstances consent to enter). Garcia's actions differed from Shaibu's and from Mr. xxxxxxxxx' in that they involved an affirmative assent, not a mere failure to object. Mr. xxxxxxxxx' lack of consent was even more apparent than Shaibu's as he did not retreat into the apartment, but stayed in the doorway, stepping aside as the officers entered the apartment.

"We do not expect others to walk into our homes, even if the door is open, without first requesting permission to enter. That the police would so enter without request, creates an impression of authority to do so. In light of the standard in [the Ninth] Circuit, that coercion is implicit in situations where consent is obtained under color of the badge, we interpret failure to object to the police officer's thrusting himself into [the defendant's] apartment as more likely suggesting submission to authority than implied or voluntary consent." Shaibu, 920 F.2d 1423, 1427; See also, U.S. v. Page, 302 F.2d 81, 84 (9th Cir. 1962).

4. Mr. xxxxxxxxx Was Illegally Seized at the Time He Was Confronted by The Police.

A warrantless search that ends up providing probable cause for an arrest cannot be justified as incident to that arrest. Smith v. Ohio, 494 U.S. 541 (1990). See also U.S. v. Mota, 982 F.2d 1384 (9th Cir. 1993) (defendants arrested for operating a stand without a business license; search incident to arrest produced counterfeit bills in their pockets; because under California law, defendants should not have been arrested for infraction, search incident to that arrest also invalidated).

Agents may not deliberately create exigent circumstances in order to subvert the warrant requirements of the Fourth Amendment. E.g., U.S. v. Thompson, 700 F.2d 944 (5th Cir. 1983); U.S. v. Hare, 589 F.2d 1291 (6th Cir. 1979); U.S. v. Rosselli, 506 F.2d 627 (7th Cir. 1974); U.S. v. Curran, 498 F.2d 30 (9th Cir. 1974); Niro v. U.S., 388 F.2d 535 (1st Cir. 1968).Since the exigency doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof rests upon the government to show that the warrantless entry falls within the exception. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978); U.S. v. Jeffers, 342 U.S. 48 (1951); McDonald v. U.S., 335 U.S. 451 (1948); U.S. v. Manfredi, 722 F.2d at 520.

Where agents had probable cause to search the defendant's home, but failed to get a warrant and were unable to point to any exigent circumstances, the search was held to be invalid. U.S. v. Suarez, 902 F.2d 1466 (9th Cir. 1990); see also U.S. v. Warner, 843 F.2d 401 (9th Cir. 1988) (no basis for believing illicit drug activity taking place, evidence might disappear, or explosion might occur); U.S. v. Howard, 828 F.2d 552 (9th Cir. 1987) (lack of knowledge of contents of boxes and only a reasonable suspicion of presence of methamphetamine laboratory did not justify warrantless entry), cert. denied, 485 U.S. 937 (1988); U.S. v. Driver, 776 F.2d 807 (9th Cir. 1985) (destruction of evidence too speculative to justify).

According to Officer Padget and to police records in Exhibit P1, the following represents a reasonably accurate chronology: The police arrived at 1411 Ingra at 6:24 p.m. Sgt. Hooks arrived there around 6:51 p.m. and left at 7:14 p.m. Kantor and Padgett left at 7:42 to go to the state court. The warrant was issued at 8:17 p.m., and the house was searched pursuant to the warrant at 8:27 p.m. According to Officer Padgett, Keith xxxxxxxxx was "arrested" at the time Officer Kantor removed the wad of money from xxxxxxxxx' pocket, shortly after entry." According to Officer Stafford, Keith xxxxxxxxx was "arrested" at 9:30 p.m., and 'Mirandized' at 9:54 p.m.. During the time the person of Keith xxxxxxxxx was "seized" by the Anchorage Police Department, a period of three and one-half hours he was told that there was a drug investigation and asked if there was anything he wanted to tell them. During this period, he told them his true name, told them he was "chilling" there, although he also told them that the apartment had been rented by someone else. The police answered his phones (he was handcuffed), they opened the door when there were two visitors, they seized and frisked and questioned one visitor - who was then "released", and they pursued another individual down the stairs who had previously stolen . $20.

At 5:00 p.m. that evening, Officers Padget and Kantor, two patrol officers of but three years experience, had been placed on an assignment to make drug busts. At 5:00 p.m. they encountered Ruth Wade. After she took $20 from the officers, the police spent approximately ten minutes waiting for her at the corner of Juneau Street on the north side of the 14th before deciding she wasn't coming back. Even though one of the officers testified before a state court magistrate he had seen Ms. Wade enter 1411 Ingra, when he had not, they officers did not surveil the building or move to a location from which the entrances were visible and could be monitored. At 5:30 p.m. they encountered Mr. Best. He took $20 from them and walked towards the 1411 location. Once again, they could not see where Mr. Best went, even though the same officer told the state court magistrate Mr. Best had entered the building, and it was merely unknown which apartment he went into.

Rather than remaining in the vicinity of 1411 Ingra for the purpose of surveiling the exits, the officers drove around the area before returning to a position on the north side of 14th, on the east side of the alley. They noticed a truck with a driver, a passenger, waiting in the alley near 1411 Ingra, and they viewed an individual enter the truck on the passenger side. The view from this location is provided in the Defendant's Photographic Exhibits , which depict daytime conditions. Officer Kantor testified he believed this individual could be Mr. Best because both Mr. Best and this individual were wearing a green shirt. However, Officer Padget testified that he was unable to determine the color of the tow truck from this location because it was"dark."

The officers in their unmarked car decided to follow the truck and they called for other units to stop the tow truck. Three marked units responded. They pulled the two truck over, and made its occupants get out of the vehicle. They were pat-searched and questioned. Crack pipes were found in the truck. Officers Padget and Kantor could tell immediately that none of the occupants were Mr. Best. Nevertheless passenger Cornell Bennison was thereafter questioned by three officers, seriatum, in the back seat of a marked police car, which had a glass divider between the front and rear seats. Officer Padget, the second to question Bennison, believed Bennison was trying to swallow something and he told him to open his mouth. When he did, Padgett said he saw he saw something white that could possibly have been crack cocaine. Bennison appeared to swallow again. After Padgett was done questioning Bennison, Kantor "contacted" him. It was at this junction that Bennison told Kantor that he had obtained crack cocaine in the upstairs apartment at 1411 Ingra and that the cocaine was inside a cupboard. Bennison gave no physical description of any occupants, apparently gave no information that guns would be present or that any exigency existed. The police neither arrested Bennison nor transported him to a hospital following this contact. His statements were not recorded even though marked police cars have recording equipment in them.

CONCLUSION

Clearly, when the defendant's person has been seized at the threshold of his apartment, his movement restricted, his apartment searched without consent, and handcuffed and had items removed from his pockets in the police officer's quest for evidence, he has been arrested and should have been Mirandized, prior to being "talked to" by the police. Although the government claims no statements were made by the defendant, the evidentiary record was rife with his statements, as noted by the police, and therefore they should be subject to suppression.

It is anticipated that the government will make the argument that evidence seized in advance of the application for a search warrant as a consequence of a warrantless and nonconsesual entry and seizure of the defendant's person nevertheless be "saved" by the issuance of a search warrant. However, the warrant was issued in substantial reliance upon a course of police illegality. Furthermore, the state court magistrate was misformed by the police officer as to three critical pieces of information: (1) the police officers' lack of ability to observe Ruth Wade enter the building at 1411 Ingra; (2) the police officers' lack of ability to observe Roy Best to enter the building at 1411 Ingra; and (3) the positive identification of crack cocaine inside of Cornell Bennison's mouth. The police officers, having the capability to fully inform the court as to the criminal records of those three individuals, and being aware of the likelihood of at least two named informants' prior convictions for crimes of dishonesty, were reckless if not dishonest in their material omissions to the state court magistrate. Thus, shoul the government intend to rely upon the independent source doctrine providing the probable cause for the search warrant, a Franks hearing is requested as the credibility of the two affiants has been most certainly put into issue by their testimony at the evidentiary hearing.

DATED this ____ day of July, 2000.

Respectfully submitted,

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

________________________________

Mary C. Geddes

Assistant Federal Defender

Mary C. Geddes

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

DISTRICT OF ALASKA

550 W. 7th Avenue, Suite 1600

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. A97-0021 CR (JKS)

)

Plaintiff, )

) CERTIFICATE OF SERVICE

vs. )

)

KEITH O. xxxxxxxxx, )

)

Defendant. )

____________________________________)

LYNN M. WRIGHT, being first duly sworn upon oath, deposes and states as follows:

1. I am an employee of the Federal Public Defender, counsel for defendant KEITH O. xxxxxxxxx, in the above-captioned action. I am nineteen (19) years of age or older.

2. On July 26, 2000 I hand delivered a true and correct copy of DEFENDANT'S ADDITIONAL BRIEFING IN SUPPORT OF MOTIONS TO SUPPRESS to:

Stephan Collins

Assistant U.S. Attorney

U.S. DEPT. OF JUSTICE

222 W. 7th Avenue, 9, Rm #253

Anchorage, Alaska 99513-7567

__________________________________

LYNN M. WRIGHT