                                                                             FILED
                                  NOT FOR PUBLICATION *                       AUG 09 2011

                                                                          MOLLY C. DWYER, CLERK
                           UNITED STATES COURT OF APPEALS                  U .S. C O U R T OF APPE ALS




                                  FOR THE NINTH CIRCUIT

                                                     No. 10-35822
    HABIBO A. JAMA,
                                                     D.C. No. 2:09-CV-00256-JCC
               Plaintiff-Appellant,
     v.

    CITY OF SEATTLE, TODD HARRIS,                    MEMORANDUM
    MATT NESS, JOE PIOLI, LT. STEVE
    WILSKE,

               Defendants-Appellees.


                          Appeal from the United States District Court
                            for the Western District of Washington
                         John C. Coughenour, District Judge, Presiding

                              Argued and Submitted July 13, 2011
                                     Seattle, Washington

       Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.

          Plaintiff-Appellant Habibo A. Jama appeals from an order of the district court




*
  This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
  The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.

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granting defendants’ motion for summary judgment with respect to Jama’s claim that

her Fourth Amendment rights were violated when members of the Seattle Police

Department (“SPD”) SWAT team, executing a valid search warrant, forcibly entered

her apartment with guns drawn, 8–10 seconds after knocking and announcing their

presence and purpose, and detained the five occupants for at most 15–20 minutes.

      When police officers executing a search warrant knock and announce, “there

[is] no fixed minimum amount of time [they] must wait before entering . . . .” United

States v. Granville, 222 F.3d 1214, 1218 (9th Cir. 2000). Instead, whether such an

entry was reasonable depends upon “the totality of circumstances in a given case.”

United States v. Banks, 540 U.S. 31, 36 (2003). The circumstances here are as

follows: On the day that Jama’s apartment was searched, agents of the United States

Drug Enforcement Administration (“DEA”), in conjunction with local law

enforcement officers, including the SPD SWAT team, were executing 17 search

warrants simultaneously. The warrant to search Jama’s apartment authorized the

seizure of drugs, financial records, information on electronic devices such as cellular

telephones and digital cameras, and weapons.        Based on both surveillance and

wiretaps, DEA agents believed that members of the drug conspiracy under

investigation “use[d] their cellular telephones constantly,” which heightened the

agents’ concern that the searches could be compromised by a tip-off from other



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members of the “tight-knit,” “very close community,” including the other

co-conspirators. At approximately 5:42 a.m. on the morning in question—less than

twenty minutes before the search was scheduled to commence—Jama’s cousin, Farah

Jama, was observed by agents unexpectedly entering Jama’s apartment.

      Once the SWAT team assembled at the door, Habibo Jama and Farah Jama

looked down from an upstairs bedroom window at the officers and then quickly

backed away from the window. Two DEA agents, who were surveilling the premises,

observed this behavior and called out on the radio to the SWAT team,

“compromised,” to indicate that someone inside the apartment had seen the entry team

approaching. While the SWAT team officer who initiated the entry testified that he

does not recall “compromise” being called out, and does not remember initiating the

entry on that basis, the knowledge of the DEA agents outside who witnessed Habibo

Jama and Farah Jama’s behavior is imputed to the entire search team, under the

doctrine of collective knowledge. See United States v. Ramirez, 473 F.3d 1026, 1032

(9th Cir. 2007) (holding that reasonableness inquiry considers “the collective

knowledge of all the officers involved,” regardless of whether information was

communicated to particular officers); United States v. Bernard, 623 F.2d 551, 560–61

(9th Cir. 1980) (same).     Under the totality of the circumstances, it was not

unreasonable for the SWAT team officers to believe that any further delay in entering



                                         3
would be dangerous, futile, or ineffective, especially because the occupants were on

notice that the police were outside and about to enter, even prior to the knock on the

door.

        Nor was the force used by the SWAT team to secure the premises, after

breaching the door, unreasonable. “Determining whether the force used to effect a

particular seizure is reasonable under the Fourth Amendment requires a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and citations

omitted).

        First, it was not unreasonable, under the circumstances, for SWAT team officers

to point their guns at Jama during the initial protective sweep. Because “the execution

of a warrant to search for narcotics is the kind of transaction that may give rise to

sudden violence or frantic efforts to conceal or destroy evidence,” “[t]he risk of harm

to both the police and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692,

702–03 (1981). Second, because “[a]n officer’s authority to detain incident to a

search is categorical,” Muehler v. Mena, 544 U.S. 93, 98 (2005), and because officers

have “the authority to use reasonable force to effectuate the detention,” id. at 98–99



                                           4
(citing Graham, 490 U.S. at 396), it was not unreasonable for the SWAT team

members to use physical force to move Jama to the living room and to force Jama to

the floor—especially when she testified that, when the officers came into the

apartment, she ran away. See Graham, 490 U.S. at 396 (“Not every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” (internal quotation marks and citation omitted)). Third, it was,

for the same reason, not unreasonable for officers to use handcuffs, a “marginal

intrusion,” to detain the occupants while the residence was being secured. Muehler,

544 U.S. at 99 (citing Graham, 490 U.S. at 396–97). Fourth, according to Jama’s own

account, the SPD SWAT team detained Jama for only 15–20 minutes while securing

the scene. Appellant’s Br. at 8. There is no evidence that this was longer than

necessary to permit the officers to conduct a protective sweep and secure the premises.

See Muehler, 544 U.S. at 98 (listing several “legitimate law enforcement interests”

that justify detention, including preventing flight, protecting officers, and facilitating

orderly completion of search). The manner in which the officers pointed their guns

during the protective sweep here is distinguishable from the more dangerous and

threatening use of weapons at issue in the cases cited by Jama.

      Jama failed to produce evidence sufficient to survive summary judgment with

respect to any of the four individual defendants. As to defendants Ness and Pioli,



                                            5
Jama waived her claims against them because she failed to argue these claims on

appeal. As to defendants Wilske and Harris, there is no evidence that either defendant

caused, or was even involved with, the alleged injuries. Absent any constitutional

violation, there is no municipal liability. See City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (per curiam).

AFFIRMED.




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