D.Conn.: Violation of knock-and-announce on a 6 am arrest warrant execution leads to suppression despite Hudson

The defendant’s house was entered at 6 am with an arrest warrant, and the officers knocked and entered when there was no prompt answer. The court credits the testimony of the occupants and the time involved and not the officer because it was a more significant event to them, and the officers had executed hundreds of warrants. The court finds a violation of the knock-and-announce rule and orders suppression of evidence seen on the entry conscious of Hudson and the preference not to suppress violations of the knock-and-announce rule. United States v. Vasquez, 2016 U.S. Dist. LEXIS 71856 (D.Conn. June 2, 2016). This is a significant case because seldom can a court get around Hudson:

Detective Walsh’s inability to recall the specific details of the warrant execution is not surprising: he testified that he has executed warrants at three-family wood frame houses — the same type of building as Mr. Vasquez’s residence — hundreds of times (id. at 10), has done 50 to 75 entries since the July 15, 2015 entry (id. at 93), and in total, has “knocked down” a “couple thousand” doors (id. at 80). What is surprising — and, in my estimation, not credible — is that he could recall the specific amount of time the officers waited between knocking and breaching the door. Further, Detective Walsh’s hesitation, “maybe” qualification, and overall demeanor suggested that he was not confident in his answer on the lapse of time before breaching the door.

. . .

I conclude that it was unreasonable to breach the door after only a few-seconds wait subsequent to the officers’ knock on Mr. Vasquez’s door. Two circumstances in this case significantly impact this analysis: (1) the execution of the warrant in the early morning hours, and (2) the lack of specific information known to the officers about Mr. Vasquez at the time they arrived at his door. First, the officers arrived at the apartment sometime before 6:00 a.m. Apart from Detective Walsh’s vague testimony that he heard movement and commotion, the government presented no evidence suggesting that anyone in the apartment was up and about when the officers arrived. A reasonable officer arriving at a residence so early in the morning would expect occupants to need additional time to get out of bed or at least to put on additional clothing before answering the door. At that hour of the day, absent clear evidence that the occupants were up and about, it was not reasonable to draw the inference after waiting fewer than ten seconds that the occupants had decided to refuse the officers entry to the apartment. Relatedly, at that hour, a reasonable officer would not expect an occupant to be awake and ready to dispose of narcotics at a moment’s notice. The privacy interest animating the knock-and-announce rule is heightened in the context of an early-morning entry, when the occupants are likely sleeping and in night clothes: an occupant, upon waking, would need additional time to “pull on clothes” and “collect” herself before answering the door. See, e.g., United States v. Spriggs, 996 F.2d 320, 323 (D.C. Cir. 1993) (distinguishing that case from an early-morning warrant execution, “when it was not reasonable to assume that the occupants were awake and able to respond promptly”). Even if Detective Walsh did hear footsteps in the apartment at the time the officers approached the door, that fact alone would not have led a reasonable officer to believe that the occupants were attempting to flee or destroy evidence. Under the circumstances and without further elaboration by Sergeant Burns, hearing “some sort of footsteps” in the apartment was at least as consistent with the inference that an occupant was making an early morning trip to the bathroom as it was with an inference that flight or evidence destruction were occurring. Indeed, it was more consistent with the former explanation, because Detective Walsh testified that he heard “movement” — apparently the same movement — before and after the knock and announcement.

. . .

In sum, I find the Weaver court’s analysis compelling, and agree that when officers equipped with an arrest warrant violate the knock-and-announce rule, the defendant is entitled to suppression of the fruits of that unlawful entry of his home. Because Mr. Vasquez proved (and the government failed to rebut) that the officers violated the knock-and-announce rule when executing Mr. Vasquez’s arrest warrant, I grant his motion to suppress the narcotics and money found in his apartment on the morning of July 15, 2015, as well as the statement he made about those narcotics while in the apartment.

. . .

I recognize that application of the exclusionary rule imposes a burden on law enforcement officers. In the chaotic atmosphere of executing an arrest warrant, officers are understandably focused more on securing the scene than checking their wristwatches to ensure they have waited a sufficient amount of time before breaching an entrance. Yet the courts must ensure that the legal consequences of constitutional violations operate as a proper and adequate deterrent.

Further, I emphasize that the determinative circumstances in this case were not the result of decisions made in the heat of the moment. Rather, they were the result of decisions made either prior to the warrant execution or after Mr. Vasquez was detained: the officers chose to execute the warrant early in the morning, chose not to obtain — or were denied — a search warrant or a “no-knock” warrant, and chose not to document the amount of time they waited before breaching the door. As to that last circumstance, had the officers documented the length of time that they waited after knocking and announcing their presence — and had that documentation supported Detective Walsh’s testimony that they waited more than ten seconds — the government’s evidentiary presentation would have carried more weight, particularly given Detective Walsh’s weak memory of the incident during the hearing.

Based on the evidence presented at the suppression hearing, I conclude the officers failed to provide Mr. Vasquez a reasonable opportunity to surrender himself at his apartment door. And because that failure calls for application of the exclusionary rule for the reasons indicated, the evidence the officers obtained inside the apartment cannot be used at trial. Mr. Vasquez’s statement made at the command post, however, may be offered.

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