United States v. Caldwell, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 18, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-41763
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
PHILLIP BRUNO; CHRISTOPHER JEROME CALDWELL,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The district court granted Phillip Bruno and
Christopher Caldwell’s joint motion to sup-
press evidence found pursuant to a search that
the court found to have violated the knock-
and-announce rule. After this ruling, the Su-
preme Court held in Hudson v. Michigan, 126
S. Ct. 2159, 2165 (2006), that the exclusion-
ary rule is inapplicable to Fourth Amendment
knock-and-announce violations. We consider
whether, in light of Hudson, suppression is the
remedy for a violation of 18 U.S.C. § 3109’s
knock-and-announce requirement. Holding it
is not, we reverse and remand.
I.
Drug Enforcement Agency (“DEA”) agents
and members of the League City SWAT Team
arrived at Caldwell’s residence early one
morning to execute a search warrant. One of
the SWAT team members knocked loudly on
Caldwell’s front door and announced, “Police,

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search warrant.” About ten seconds after this
announcement, two officers at the master bed-
room performed a “rake-and-break” maneu-
ver: One broke the window and cleaned it
out, and the other pointed a long gun with a
light on it through the window and instructed,
“Police. Don’t move. Search warrant. Put
your hands where I can see them.” Caldwell
was in bed with his wife and appeared to have
been awakened recently.
Approximately 15 to 20 seconds after offi-
cers broke the bedroom window, the front-
door team tossed a concussion grenade toward
the garage as a distraction in case other adults
were present, and then broke through the front
door. Bruno tried to flee from the garage, but
DEA agents caught and arrested him.
Officers recovered a small, loaded handgun
from above the headboard on the side of the
bed where Caldwell was sleeping, and a loaded
shotgun from the master bedroom shower
stall. A later search uncovered narcotics and
seven other weapons.
Caldwell and Bruno were charged in an
eleven-count indictment with various narcot-
ics- and firearms-related offenses under 18
U.S.C. §§ 2, 922, and 924 and 21 U.S.C.
§§ 841 and 846. They filed a motion to sup-
press the evidence, claiming that federal offi-
cers did not knock and announce their identity
and purpose when executing the search war-
rant, in violation of the Fourth Amendment
and 18 U.S.C. § 3109. The district court
granted the motion, and the government ap-
peals.
II.
When considering the grant or denial of a
motion to suppress evidence, we review the
district court’s factual findings for clear error
and its legal conclusions de novo. United
States v. Gonzalez, 328 F.3d 755, 758 (5th
Cir. 2003); United States v. Jordan, 232 F.3d
447, 448 (5th Cir. 2000). The common law
principle “that law enforcement officers must
announce their presence and provide residents
an opportunity to open the door” has been part
of federal statutory law since 1917 and is cod-
ified at 18 U.S.C. § 3109.1 Hudson, 126 S.
Ct. at 2162. In Hudson, the Court held that
suppression is not the appropriate remedy for
a violation of the constitutional knock-and-an-
nounce requirement, but the Court did not ad-
dress whether suppression is the correct rem-
edy for violations of § 3109. Id. at 2165.
Hudson’s reasoning, however, entails this
result. The District of Columbia Circuit has
explained persuasively why:
[E]ach of the reasons Hudson gave for not
applying the exclusionary rule to knock-
and-announce violations of the Fourth
Amendment applies equally to violations of
§ 3109. Among those reasons are that the
knock-and-announce requirement does not
protect an individual’s interest in shielding
“potential evidence from the government’s
eyes,” Hudson, 126 S. Ct. at 2165; that
“imposing th[e] massive remedy” of sup-
pression “for a knock-and-announce viola-
tion would generate a constant flood of
1 Title 18 U.S.C. § 3109, “Breaking doors or
windows for entry or exit,” states the following:
The 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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alleged failures to observe the rule,” id. at
2165-66; that questions about whether the
police waited long enough before entering
would be “difficult for the trial court to
determine and even more difficult for an
appellate court to review,” id. at 2166; that
any deterrent value from suppressing evi-
dence in these cases would not be “worth a
lot,” id.; that civil damage actions would
still provide some deterrence, id. at
2166-68; and that “[a]nother development
over the past half-century that deters
civil-rights violations is the increasing pro-
fessionalism of police forces, including a
new emphasis on internal police discipline,”
id. at 2168.
United States v. Southerland, 466 F.3d 1083,
1084 (D.C. Cir. 2006), cert. denied, 127 S. Ct.
1361 (2007).
The Ninth Circuit has also held, in an un-
published opinion, that “[s]uppression of evi-
dence is not an available remedy for violations
of the ‘knock and announce’ rule under 18
U.S.C. § 3109.” United States v. Ramirez,
196 Fed. Appx. 538, 539 (9th Cir. 2006) (cit-
ing Hudson, 126 S. Ct. at 2166). The First
Circuit has also confronted “whether Hudson
should be extended to a knock and announce
violation committed in the course of executing
an arrest warrant” and has concluded “that the
Hudson Court’s reasoning mandates such an
extension.” United States v. Pelletier, 469
F.3d 194, 196 (1st Cir. 2006).
Caldwell and Bruno contend that two deci-
sions that Hudson did not explicitly overrule
continue to require suppression for a violation
of § 3109: Miller v. United States, 357 U.S.
301 (1958), and Sabbath v. United States, 391
U.S. 585 (1968). The defendants point us to
the Court’s instruction that “[i]f a precedent of
this Court has direct application in a case, yet
appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals
should follow the case which directly controls,
leaving to this Court the prerogative of over-
ruling its own decisions.” Rodriguez de Qui-
jas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989).
Miller and Sabbath are not direct prece-
dents, so they do not preclude us from con-
cluding that suppression is not the proper
remedy for a § 3109 violation. In neither did
the Court analyze the precise question Hudson
squarely addressed: the remedy for a knock-
and-announce violation. Rather, both focused
on whether a knock-and-announce violation
had occurred. In Sabbath, 391 U.S. at 589,
the Court discussed whether the phrase “break
open” as used in § 3109 requires the use of
force. In Miller, 357 U.S. at 305, the par-
ties apparently conceded the evidence’s inad-
missibility if the officers had unlawfully failed
to announce their authority and purpose (not-
ing the petitioner’s three contentions on appeal
and stating, “If any one of these contentions
prevails, it is agreed that the marked money
was inadmissible in evidence.”).
In summary, Hudson compels the conclu-
sion that suppression is not the remedy for a
violation of §3109, and Miller and Sabbath do
not prevent it. Even if the conduct in this case
violated that statute,2 suppression is not avail-
able as a remedy for Caldwell and Bruno.
The suppression order is REVERSED, and
this matter is REMANDED for further appro-
priate proceedings.
2 Because of our conclusion about the remedy
of suppression, we do not reach whether a § 3109
violation occurred in this case.

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