APPEAL FROM JUDGMENT OF CONVICTION AND SENTENCE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00363-02)
Before Seitz, Chief Judge, Higginbotham, Circuit Judge, and Meanor, District Judge.*fn*
When a federal officer executes a search warrant of a house, Section 3109 of Title 18 of the Federal Code generally requires that he give "notice of his authority and purpose" and be "refused admittance" before he may "break" into the premises. In this appeal we must determine whether the officer must comply with the announcement requirements of Section 3109 when he reasonably believes that he would be placed in unwarranted physical danger if he made such an announcement. Because we hold, as at least five other circuits have before us, that he need not comply in these circumstances, and that the facts of this case fall within this exception, we will uphold the seizure of evidence challenged in this appeal and uphold appellant's conditional plea of guilty.
In early 1977, agents of the Drug Enforcement Administration of the Department of Justice (DEA) learned from their New York office that an individual named Zelman Fairorth had ordered Phenyl Z Acetone from a chemical company. Phenyl Z Acetone is an essential precursor used in the production of methamphetamine, a schedule II controlled non-narcotic substance commonly referred to as "speed." Subsequent investigation and information supplied by an informant employee of Fairorth's, Russell A. Weston, indicated that Fairorth was purchasing this and other precursor chemicals and selling them to Daniel Kane. According to the informant, Kane operated with two other individuals a methamphetamine laboratory located in a house rented by Kane at 322 Phillips Mill Road, Solesbury Township, Bucks County, Pennsylvania. Agents reportedly observed Fairorth purchase precursor chemicals and learned from an undercover state trooper that Kane had sold 2.8 grams of methamphetamine to him. On the basis of this information, the agents secured a search warrant for Kane's house on June 8, 1977.
At about 2:15 p.m. on June 9, DEA agents, along with state law enforcement officials, approached Kane's house to execute the search warrant. There were reportedly five people in the house at the time Weston; Kane; Kane's girlfriend, Melinda Hallock; one John DePaul; and an individual later identified as Fairorth. There were also reportedly four weapons in the house two rifles, a shotgun and a .38-caliber revolver.*fn1 Under a prearranged plan, the officers divided into three teams, which were in contact by portable radio. The first team, which was comprised of Agents Frank Wicks and Patricia McCurdy, drove up to the house in an unmarked police car, and Wicks proceeded to the front door. The second team led by Agent Don Miller approached a side basement door. The third team covered the rear kitchen door. Agent Wicks knocked on the front door and explained to the man who answered the door, Fairorth, that he was searching for an individual referred to him by an antique dealer. The opening of the door was the signal for Agent McCurdy, who was sitting in the unmarked car, to instruct the other teams to enter the premises. The second team forced its way through the basement door and proceeded up the basement steps to the kitchen, admitting the third team through the kitchen door. The noise of the other units in the house led Agent Wicks to step through the door, grab Fairorth by the arm, and inform him that Wicks was a federal agent with a search warrant. Thus, at the point when the first officer of the second team entered the house, no officer had yet announced his identity and purpose.
The subsequent search of the house uncovered a methamphetamine laboratory and a quantity of precursor chemicals of methamphetamine. The agents also discovered on the premises a semi-automatic .30-caliber carbine, a Winchester rifle, two 12-gauge shotguns, two .38-caliber revolvers, and ammunition. Fairorth and Kane were charged with conspiracy to manufacture a controlled substance, manufacture of a controlled substance, and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. The trial date was set for January 4, 1978, but Kane failed to appear, and a warrant was issued for his arrest. Fairorth was tried separately and convicted on all counts. Kane was apprehended in December of 1979.
On January 14, 1980, the district court considered a motion by Kane to suppress the evidence obtained in the search of the house on the ground that the search warrant was improperly executed. The court denied the motion on January 16. The same day Kane entered a conditional plea of guilty pursuant to our decision in United States v. Zudick, 523 F.2d 848, 851 (3d Cir. 1975), in order to challenge on appeal the decision of the district court judge not to suppress the evidence obtained in the search. On March 11, 1980, Kane was sentenced to concurrent four-year terms of imprisonment for the three counts of the indictment, to be followed by a two-year special parole. He filed an appeal on March 21, 1980.
Kane argues before this court that the June 9th search violated 18 U.S.C. § 3109 because the agents failed to announce their authority and purpose before entering the premises. The government concedes, as it must, that Section 3109 applies to the search and that the announcement requirement of the statute was not met. It claims that this case comes within an exception to the announcement requirement of Section 3109 when the officer reasonably believes notice would place him in peril. Thus, we must evaluate whether there is such an exception under the statute; and if there is, whether the facts of this case fall within it. We will consider these contentions seriatim.
Section 3109, Title 18 provides as follows:
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.
Although the permissive language of Section 3109 does not specifically prohibit the entrance of police officers who have not complied with the notice provisions of the section, the section has been interpreted to exclude evidence obtained in a search where officers had not complied with these provisions. Miller v. United States, 357 U.S. 301, 306, 78 S. Ct. 1190, 1194, 2 L. Ed. 2d 1332 (1958). The section has also been held to apply to arrests. Id. Thus, officers may "break" into a dwelling pursuant to a search warrant or arrest only after they have announced their authority and purpose, and have been "refused admittance," see ...