United States of America v. Sergio Diaz-Ortiz

United States Court of Appeals
For the Eighth Circuit
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No. 18-2948
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Sergio Diaz-Ortiz
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: April 18, 2019
Filed: June 20, 2019
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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MELLOY, Circuit Judge.
Appellant Sergio Diaz-Ortiz seeks, for the first time on appeal, suppression of
evidence obtained after an alleged violation of the knock-and-announce rule under
the Fourth Amendment and 18 U.S.C. § 3109. Applying plain-error review, we
affirm the judgment of the district court.1
1The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.

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I. Background
On June 16, 2016, officers with the Ozark Drug Enforcement Team and the
Bureau of Alcohol, Tobacco, Firearms and Explosives took Justin Thurston, a
methamphetamine dealer, into custody. Prior to being taken into custody, Thurston
told the officers that his supplier, whom he knew as “Pedro,” had a room at the
Microtel Hotel, located in Joplin, Missouri. Thurston also indicated that he had seen
a large amount of methamphetamine in the room earlier that day. The officers then
drove to the Microtel Hotel and contacted hotel management. They eventually
learned that the man Thurston identified as “Pedro” was actually Diaz-Ortiz and that
Diaz-Ortiz was renting room 239. Based upon the information provided by Thurston,
the officers applied for a search warrant.
While waiting for the search warrant, the officers learned that Thurston had
been released from custody. The officers became worried that Thurston would alert
Diaz-Ortiz to their presence and that Diaz-Ortiz would begin destroying evidence.
They therefore decided to enter the room and secure Diaz-Ortiz to prevent the
potential destruction of evidence. The officers went to room 239 and knocked on the
door. Hearing Diaz-Ortiz approach the door, they used a key card obtained from
hotel management and entered. Upon entering, the officers detained Diaz-Ortiz and
advised him of his Miranda rights. They did not search the room. According to the
district court, Diaz-Ortiz implied to the officers that he did not wish to speak with
them until he had a lawyer present. Officers engaged in conversation with Diaz-
Ortiz while they were waiting for the search warrant, however, and Diaz-Ortiz told
them that there were three pounds of methamphetamine in the room.
A few hours after entering the room and detaining Diaz-Ortiz, more officers
arrived with a signed search warrant. Only then did the officers search the room.
Their search uncovered: approximately three pounds of methamphetamine, $10,331
in cash, a loaded handgun, and sample amounts of heroin and cocaine. Diaz-Ortiz
was arrested and transported to the Newton County Jail.
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At a suppression hearing, Diaz-Ortiz argued that the officers conducted an
unlawful, warrantless entry into room 239 and that any evidence or statements
obtained as a result of that entry should be suppressed. The district court concluded
that the officers’ entry was unlawful and suppressed Diaz-Ortiz’s unprompted
statement regarding the amount of methamphetamine in the room. The district court,
however, did not suppress the evidence discovered during the search of the room.
The court held that the search warrant, which was issued based solely on evidence
obtained prior to the officers’ unlawful entry, was an independent source of the
evidence obtained during the search, and thus suppression was not warranted.
On appeal, Diaz-Ortiz argues for the first time that the search evidence should
have been suppressed because it was obtained after an alleged violation of the knock-
and-announce rule under the Fourth Amendment and 18 U.S.C. § 3109.
II. Standard of Review
Because Diaz-Ortiz did not timely raise the knock-and-announce issue before
the district court, we review his appeal for plain error. United States v. James, 353
F.3d 606, 612 (8th Cir. 2003). “To obtain relief under a plain-error standard of
review, [Diaz-Ortiz] must show that there was an error, the error is clear or obvious
under current law, the error affected [his] substantial rights, and the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
III. Discussion
The district court did not commit plain error. The Supreme Court’s ruling in
Hudson v. Michigan, 547 U.S. 586 (2006) disposes of this case. In Hudson, the
Supreme Court considered whether a gun and drugs seized by officers pursuant to a
search warrant should be suppressed because the officers had violated the knock-and-
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announce rule in the course of executing the warrant. Id. at 592. Based on the facts
of that case, the Court found that “whether that preliminary misstep had occurred or
not, the police would have executed the warrant they had obtained, and would have
discovered the gun and drugs inside the house.” Id. The Court then held that because
the knock-and-announce violation had “nothing to do with the seizure of the
evidence, the exclusionary rule [was] inapplicable.” Id. at 594; see also United States
v. Gaver, 452 F.3d 1007, 1008 (8th Cir. 2006) (“[Defendant’s] motion to suppress
was premised entirely on his contention that officers violated the Fourth Amendment
by failing to knock and announce their presence, and Hudson disposes of his claim.”).
Similarly, in this case, the officers’ alleged violation of the knock-and-
announce rule had nothing to do with their seizure of the gun, drugs, and cash in
Diaz-Ortiz’s hotel room pursuant to their search warrant. As the district court found,
the search warrant was based solely on evidence obtained prior to the officers’ entry.
Therefore, regardless of whether the officers violated the knock-and-announce rule,
they still would have obtained and executed the warrant and discovered the
aforementioned evidence. Accordingly, Diaz-Ortiz’s claim is foreclosed.
To the extent Diaz-Ortiz argues that the Supreme Court’s analysis in Hudson
does not apply to knock-and-announce violations under 18 U.S.C. § 3109,2 a number
of circuits have found otherwise. See United States v. Bruno, 487 F.3d 304, 305–06
(5th Cir. 2007) (collecting cases and holding that “Hudson compels the conclusion
that suppression is not the remedy for a violation of § 3109”); see also United States
v. Acosta, 502 F.3d 54, 59 (2d Cir. 2007) (“[T]he reasoning in Hudson applies with
equal force to § 3109.”). This Court has not yet addressed the issue, but even
2Section 3109 reads: “[An] officer may break open any outer or inner door or
window of a house, or any part of a house, or anything therein, to execute a search
warrant, if, after notice of his authority and purpose, he is refused admittance or when
necessary to liberate himself or a person aiding him in the execution of the warrant.”
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assuming it might be error to apply Hudson to violations of 18 U.S.C. § 3109, that
error is certainly not “clear or obvious under current law.” Poitra, 648 F.3d at 887.
IV. Conclusion
We affirm the judgment of the district court.
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