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July 11, 1994


The opinion of the court was delivered by: DONALD J. LEE

 Before the Court is the Pretrial Motion of John F. "Duffy" Conley: Motion to Suppress [9/91 search of residence; probable cause; execution]. (Document No. 377, in part). In this motion, Defendant John F. "Duffy" Conley ("Duffy Conley") contends that the executing officers failed to knock and announce their authority and purpose in violation of the federal knock and announce statute, 18 U.S.C. § 3109. He also contends that the supporting affidavit failed to include probable cause to search his residence.

 Execution of the Warrant

 Findings of Fact

 1. On September 19, 1991 Special Agent Andrea Dammann of the Federal Bureau of Investigation obtained a search warrant for the premises of 467 Baldwin Road, Robinson Township, Pennsylvania.

 2. The premises of 467 Baldwin Road is the residence of Duffy Conley.

 3. At 7 a.m. on September 20, 1991, Special Agent Robert Smith ("S.A. Smith") and six other officers of the FBI and IRS executed the warrant on the residence.

 4. The federal officers were dressed in FBI "raid jackets."

 5. After exiting a car, S.A. Smith and FBI S.A. Craig, who was in charge of the execution of the warrant, approached the residence and observed a driver sitting behind the wheel of a parked car in Defendant's driveway.

 6. S.A. Smith walked to the side of the car and directed the driver to "turn off his engine," and the driver complied. S.A. Smith knew the driver was not Duffy Conley. S.A. Smith subsequently learned that the driver was Defendant Frank Garofalo.

 7. Although he had observed Defendant Garofalo sitting in a parked car in the driveway with the engine running, S.A. Smith did not know whether Defendant Garofalo had just delivered or was awaiting Duffy Conley. It appeared to S.A. Smith that Defendant Garofalo had just arrived at Duffy Conley's residence.

 8. S.A. Smith did not announce to Defendant Garofalo that he was an FBI agent.

 9. IRS S.A. Daniel Hanlon, who had previously met Defendant Garofalo, stopped briefly to say hello to and shake the hand of Defendant Garofalo.

 10. Eventually, Defendant Garofalo was removed from his vehicle and interviewed by FBI Special Agent Pietropola.

 11. S.A. Smith led the way to the residence, observed only one entrance and approached the front door by walking up a set of stairs to a large porch. The front door was a standard-sized, wooden door with a small, unobstructed glass window about eye-level. S.A. Smith looked through the window and could see a small hallway and a wall through the window, and nothing else.

 12. S.A. Smith rang the doorbell and knocked on the door.

 13. S.A. Hanlon and S.A. Craig joined S.A. Smith near the front door. S.A. Hanlon was behind and to the right of S.A. Smith. S.A. Craig was to the left of S.A. Smith, barely on the porch or on one of the steps leading to the porch.

 14. After about 10 to 15 seconds, no one had answered the door. S.A. Smith rang the doorbell and knocked on the door again.

 16. At this point in time, S.A. Smith heard "ripping and crumbling of paper" but could not determine from where in the house the sound was emanating.

 17. Agent Hanlon heard a "someone in a hurried movement, like a -- a vibrating type of sound when somebody moves that hear when you're in another room."

 18. While S.A. Hanlon was looking through the door window, he saw a second flash. Having seen the second flash, S.A. Hanlon did not believe that it was a light bulb.

 19. S.A. Hanlon exclaimed, "He's burning something."

 20. At the same time, S.A. Craig, who was in front of window to the left of the front door observed Duffy Conley through the window burning something.

 21. S.A. Craig told S.A. Smith to "hit the door."

 22. S.A. Smith hit the door with his shoulder twice, forcibly opening it on the second attempt.

 23. S.A. Smith ran through the door. He was across the threshold when he shouted "FBI, we have a search warrant." By the time he finished the word "warrant," he had run down the short hallway and turned to the left towards a living room area.

 24. Upon arriving in the living room, S.A. Smith found Duffy Conley near the fireplace in "a crouched position, holding some papers, with other papers burning in the fireplace."

 25. S.A. Smith approached Duffy Conley and just before S.A. Smith got to him, Duffy Conley threw the last piece of paper in his hand into the fire.

 26. S.A. Hanlon followed S.A. Smith into the living room and when S.A. Hanlon first saw Duffy Conley, he was turning from the fireplace. S.A. Hanlon ordered Duffy Conley to sit away from the fireplace, and Duffy Conley complied.

 27. S.A. Smith attempted to retrieve the burning paper but was unable to do so before it was burned beyond recognition. The only fuel for the fire in Duffy Conley's fireplace was burning papers.

 28. During the hours of the search, the agents discovered that Duffy Conley's house was equipped with a motion detector, which was aimed at the driveway and went off whenever there was movement in the driveway.


 The Court concludes that although the agents did not strictly comply with Section 3109, under the circumstances compliance was excused.

 Title 18, Section 3109 provides:

 § 3109. Breaking doors or windows for entry or exit

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.

 18 U.S.C. § 3109 (19 ). Failure to comply with the federal statute results in the application of the exclusionary rule to the fruits of the entry. United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993); United States v. Nolan, 718 F.2d 589, 596 (3d Cir. 1983); see also Sabbath v. United States, 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968).

 In this case, the officers did not comply with the statute. At no time prior to forcibly breaking open the door did the officers give notice of their authority and purpose. S.A. Smith announced "FBI, we have a search warrant" only after breaking open the door and crossing the threshold. In United States v. Augello, 368 F.2d 692, 693-95 (3d Cir. 1966), vacated on other grounds sub nom., DeCesare v. United States, 390 U.S. 200, 88 S. Ct. 900, 19 L. Ed. 2d 1036 (1968) federal officers approached a locked screen door and knocked and announced both their authority and purpose, stating "'Federal Officers with a search warrant. Open the door.'" Id. at 693. The defendant's sister then was observed running away from the door calling the defendant's name. Id. The court framed its inquiry as follows:

We are concerned with three statutory requirements: (1) announcement of authority, (2) announcement of purpose, and (3) refusal of admittance. Since the District Court's specific finding that the first two announcements were made, may not be disturbed, it remains only to consider whether the officers were 'refused admittance.' Such refusal is present where it can reasonably be inferred from the actions or inaction of the occupants of the premises to be searched.

 Id. at 694. In contrast, the agents in this case made no announcement of their authority or purpose prior to breaking open the door of Duffy Conley's residence. The agents only knocked on the door and rang the bell. The Court therefore rejects the Government's attempt to prove compliance with the statute under the constructive refusal doctrine. Cf. United States v. Kane, 637 F.2d 974, 977 (3d Cir. 1981) ("The government concedes, as it must, that Section 3109 applies to the search and that the announcement requirement of the statute was not met"). *fn1"

 The announcement requirement, however, is not without exception. United States v. Singleton, 439 F.2d 381, 385 (3d Cir. 1971). Recognizing the common law roots of the statute, courts have not hesitated to graft exceptions onto the statutory language. See, e.g., United States v. Stiver, 9 F.3d 298, 301-02 (3d Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1115, 127 L. Ed. 2d 425 (1994); Kane, 637 F.2d at 977-79; United States v. Davis, 461 F.2d 1026, 1034 (3d Cir. 1972). Regarding the respective burdens on the government and defendants regarding proof of exceptions, the Court of Appeals for the Third Circuit has held:

We still must consider whether the police officers in this case had reasonable grounds for such belief [that circumstances warranted an exception to the statutory requirements]. The reasonableness of their belief must be evaluated, of course, according to the facts "as the officers had reason to believe (them to be) at the time of their entry." Ker v. California, 374 U.S. 23, 40 n.12, 83 S. Ct. 1623, 1633 n.12 (emphasis in original). Accord, United States v. Davis, 461 F.2d at 1034. The defendant has the burden of establishing a prima facie violation of the statute. See United States v. Gardner, 553 F.2d 946, 949 (5th Cir. 1977), cert. denied, 434 U.S. 1011, 98 S. Ct. 722, 54 L. Ed. 2d 753 (1978). Once this minimal burden has been met, however, as it has in this case, we conclude that "the burden of proof of exigent circumstances to justify such a deviation from the Fourth Amendment is upon those who are seeking advantage of the exception," United States v. Murrie, 534 F.2d 695, 698 that is, the government. Accord, United States v. Gardner, 553 F.2d at 949.

 Kane, 637 F.2d at 979. In the present case, the Government seeks to invoke the common law exception recently applied in Stiver.

 In Stiver, the court analyzed the officers' conduct, which was held to be subject to challenge only under the 4th Amendment, under the common law rule embodied in Section 3109 as part of the 4th Amendment "reasonableness" inquiry. The court stated:

In light of the overlap between the common law rule and the Fourth Amendment, we begin our analysis of the question presented in this case by noting that the officers' conduct complied with the common law rule. Under that rule, an officer executing a warrant could enter without waiting to be admitted "where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted." United States v. Kane, 637 F.2d 974, 978 (3d Cir.1981) (quoting Ker v. California, 374 U.S. 23, 47, 83 S. Ct. 1623, 1636, 10 L. Ed. 2d 726 (1963) (Brennan, J., concurring and dissenting)). See also Nolan, 718 F.2d at 596; United States v. Davis, 461 F.2d 1026, 1034 (3d Cir.1972). Here, the officers had a strong basis for believing that the defendant was involved in the drug trade and that drugs or other evidence could be readily destroyed if entry was delayed. When they announced their presence, they heard heavy and hurried footsteps leading away from the door. Under these circumstances, the officers did not violate the common law rule by entering without waiting for ...

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