In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3090

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

MIGUEL A. ESPINOZA,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 73--Lynn Adelman, Judge.

Argued JANUARY 25, 2001--Decided July 11, 2001


  Before COFFEY, RIPPLE and DIANE P. WOOD,
Circuit Judges.

  COFFEY, Circuit Judge. On March 27,
2000, law enforcement officers in Racine,
Wisconsin, executed a search warrant on
Defendant-Appellee Miguel Espinoza’s
residence. The search yielded large
quantities of cocaine, marijuana, and
cash. Espinoza was arrested and
subsequently charged in an indictment
with possession with intent to distribute
in excess of 500 grams of cocaine.
Thereafter, Espinoza filed a motion to
suppress all the evidence obtained in the
search of his apartment. After an
evidentiary hearing was conducted, the
district court held that the officers, in
the course of entering the outer door of
Espinoza’s apartment building, failed to
comply with the timing element of the
"knock and announce" requirement as
described in Wilson v. Arkansas, 514 U.S.
924 (1995). The district court ordered
all the evidence obtained in the search
excluded. We reverse the district court’s
decision to exclude evidence obtained in
the search of Espinoza’s apartment and
remand for proceedings consistent with
this opinion.

I.   BACKGROUND

  On March 27, 2000, a Racine County,
Wisconsin circuit judge issued a search
warrant authorizing the search of
Espinoza’s residence, the lower unit of a
two-story duplex in the city of Racine.
Issuance of the warrant was based upon
information obtained from a confidential
informant that an individual in the
residence was in possession of 50-60
pounds of marijuana and a large quantity
of cash.

  Zachary Wright lived in the second-floor
unit of the duplex while Espinoza
occupied the ground-floor apartment. The
residence had a single exterior entrance
door that opened onto a common area. The
common area consisted of a hallway, the
front door to Espinoza’s residence, and a
set of stairs leading to Wright’s
upstairs apartment. Shortly before
midnight on March 27, 2000, officers
assigned to the Racine County Metro Drug
Unit arrived at the residence. One
officer knocked on the common exterior
door to the duplex and announced
"Sheriff’s Department, search warrant."
Officers then waited approximately five
seconds before using a battering ram on
the locked exterior door.

  After gaining entry into the common area
(hallway), officers saw Wright coming
down the stairs. Observing Wright in
descent, Racine County Sheriff’s
Department Investigator Thomas Bauer
again announced "Sheriff’s Department,
search warrant," and other officers
shouted at Wright to lie down on the
floor. The officers then proceeded to the
door of Espinoza’s residence (the second
door), knocked, and once again announced
"Sheriff’s Department, search warrant."
After this announcement, the officers
waited another five seconds without
receiving a response from anyone inside.
Investigator Bauer then attempted to kick
the door open, breaking his foot in the
process. This attempt to gain entry was
unsuccessful, and another five to ten
additional seconds elapsed while the
officers positioned themselves to use the
battering ram on the door of Espinoza’s
residence.

  When the officers hit the inner
apartment door with the battering ram,
the door opened approximately six inches
and immediately closed. While the door
was briefly open, the officers observed
Espinoza attempting to hold the door shut
in an effort to prevent them from gaining
entry. At the evidentiary hearing on
Espinoza’s motion to suppress evidence,
Deputy Brian Zimmermann testified that
Espinoza had his back "wedged against the
door with his feet propped up against the
wall trying to keep us from entering."
After Deputy Zimmermann hit the inner
door with the battering ram an additional
two times without success, he and
Investigator Bauer placed their weight
against the door and were able to force
it open. The officers entered the
apartment and proceeded to perform a
search of the residence without further
incident. Espinoza was the only person
present in the apartment. As a result of
the search, the officers recovered in
excess of two kilograms of cocaine, 50
pounds of marijuana, $108,000 in cash,
and other drug paraphernalia.

  On April 11, 2000, a federal grand jury
returned a one count indictment charging
Espinoza with possession with intent to
distribute in excess of 500 grams of
cocaine. 21 U.S.C. sec. 841. Espinoza
filed a motion seeking suppression of the
evidence found in the search of his
apartment. In this motion Espinoza argued
that the officers had failed to wait a
reasonable amount of time after
announcing their presence before forcing
entry into his home, in violation of the
Fourth Amendment’s proscription of
unreasonable searches and seizures as
discussed in Wilson, 514 U.S. at 930.

  At the evidentiary hearing on the
defendant’s motion to suppress evidence,
officers from the Racine County Metro
Drug Unit testified that prior to
executing the warrant they had no
information as to whether or not weapons
might be located in Espinoza’s residence.
Officers also testified that a five
second wait between announcing their
presence and forcing entry into a home
was standard procedure when serving
"knock and announce" search warrants.

  Also testifying at the suppression
hearing was Zachary Wright, the resident
of the upstairs apartment. Wright stated
that at approximately midnight on March
27, 2000, he was in his residence
watching television and awaiting the
arrival of friends. When Wright heard the
officers knock at the downstairs exterior
door, he assumed it was his guests, got
up to let them in, and made it as far as
the door of his apartment when he heard
the noises signifying the officers’ use
of the battering ram on the ground level
exterior door. Wright then opened his
door and stepped out onto the stairs
where he was observed by the officers and
ordered to lie on the floor.

  The Magistrate Judge’s recommendation to
the district court found that the
officers had failed to wait a reasonable
amount of time after knocking and
announcing before forcibly entering the
outer door of Espinoza’s building. The
district court adopted the Magistrate’s
recommendation, holding that in the
absence of exigent circumstances, the of
ficers waited an unreasonably short
amount of time (five seconds) between
announcing their presence and attempting
forcible entry through the first (common)
door of the residence, contrary to the
Fourth Amendment reasonableness inquiry
mandated in Wilson, 514 U.S. at 929, and
cases such as United States v. Anthony
Jones, 208 F.3d 603, 609 (7th Cir.
2000)./1 United States v. Espinoza, 105
F.Supp.2d 1015 (E.D. Wis. 2000).

  Relying on our decision in United States
v. Stefonek, 179 F.3d 1030 (7th Cir.
1999), cert. denied, 120 S.Ct. 1177
(2000), the district court judge also
held that the exclusion of evidence
obtained in the search was an appropriate
sanction for the officers’ violation of
the timing element of the "knock and
announce" rule. The court reasoned that
Espinoza was entitled to the remedy of
exclusion because the timing of the
officers’ entry through the exterior door
caused harm to Espinoza’s interests as
protected by the knock and announce
requirement. See Stefonek, 179 F.3d at
1036. The district court judge also
relied on case law from the Sixth and
Eighth circuits/2 in rejecting the
government’s position that exclusion was
inappropriate under the "independent
source" or "inevitable discovery"
exceptions to application of the
exclusionary rule. Segura v. United
States, 468 U.S. 796, 805 (1984); Nix v.
Williams, 467 U.S. 431, 440-48 (1984).

  The question concerning the timing of
the officers’ entry after their initial
knock and announcement is not before us
because the government has declined to
raise it on appeal. Rather, the
government’s appeal attacks only the
appropriateness of applying the
exclusionary rule as a remedy for the
district court’s finding of a
constitutional violation. Since the issue
has not been raised, we do not deem it
proper to make a formal holding regarding
the district court’s threshold
determination that a Fourth Amendment
violation occurred. With that said,
however, two points merit brief
commentary.

  First, we reiterate our previous holding
that in a case not involving exigent
circumstances,/3 there is no bright-line
rule delineating the boundary between a
reasonable and unreasonable amount of
time for officers to wait after
announcing their presence and before
attempting forcible entry pursuant to a
valid search warrant. Anthony Jones, 208
F.3d at 610; United States v. Kip Jones,
214 F.3d 836, 844 (7th Cir. 2000)
(Coffey, J., concurring and dissenting).
In each case where officers have
allegedly not waited a sufficient amount
of time before attempting forcible entry,
the question must be evaluated on the
basis of what time period is reasonable
under the particular factual situation
presented. Anthony Jones, 208 F.3d at
610; United States v. Markling, 7 F.3d
1309, 1318 (7th Cir. 1993). The point was
well-stated by the Sixth Circuit as
follows:

The Fourth Amendment’s "knock and
announce" principle, given its fact-
sensitive nature, cannot be distilled
into a constitutional stop-watch where a
fraction of a second assumes controlling
significance.

United States v. Spikes, 158 F.3d 913,
926 (6th Cir. 1998), cert. denied, 525
U.S. 1086 (1999) (emphasis added).

  Second, because the government does not
address the merits of Espinoza’s
constitutional claim, we do not do so
either. However, we do not want our
silence on this question to be deemed
approval of the district court’s ruling,
and we wish to make clear that we accept
the district court’s ruling on the
existence of a violation of the Fourth
Amendment only for the sake of argument.

  If the subject had been presented on
appeal, it would have been necessary for
us to determine whether Espinoza had a
privacy interest in the common area of
the duplex. See United States v.
Chadwick, 433 U.S. 1, 7 (1977) (The
Fourth Amendment "protects people from
unreasonable government intrusions into
their legitimate expectations of
privacy.") (emphasis added). We note that
the district court’s ruling that the
police must wait before entering the com
mon hallway is in considerable tension
with the principle that tenants lack a
legitimate expectation of privacy in the
common areas of multi-family buildings,
because landlords and co-tenants are free
to admit strangers. See e.g., United
States v. Concepcion, 942 F.2d 1170, 1172
(7th Cir. 1991); United States v.
Acevedo, 627 F.2d 68, 69 n. 1 (7th Cir.
1980). Accord, e.g., United States v.
Barrios-Moriera, 872 F.2d 12 (2d Cir.
1989); United States v. Cruz Pagan, 537
F.2d 554 (1st Cir. 1976). Because of the
government’s strategy on appeal we need
not pursue the issue further at this
time, and we mention it only to avoid the
impression that we have endorsed the
reasoning utilized by the district court.

  We now proceed to a discussion of the
question presented on appeal--the
appropriateness of applying the
exclusionary rule to the facts of this
case. Our review of the district court’s
decision in this regard is de novo.
United States v. D.F., 63 F.3d 671, 677
(7th Cir. 1995).


II.    DISCUSSION

  A.    The Knock and Announce Rule.

  In Wilson, the Supreme Court held that
the Fourth Amendment’s proscription of
unreasonable searches and seizures
incorporates the requirement that law
enforcement officers entering a dwelling
with a search warrant must knock on the
door and announce their identity and
intention before attempting forcible
entry. Wilson, 514 U.S. at 934./4
Although not directly addressed in
Wilson, a necessary corollary of the
knock and announce requirement is that
officers must wait a reasonable amount of
time after announcing their presence and
intention to serve a search warrant
before attempting a forcible entry.
Anthony Jones, 208 F.3d at 609-10.
  The individual privacy interests
underlying the Fourth Amendment’s knock
and announce requirement, as identified
by the Supreme Court, are: (1) the
opportunity for individuals to comply
with the law and peaceably permit
officers to enter the residence; (2)
avoiding the destruction of property
occasioned by forcible entry; and (3) the
opportunity for individuals to "prepare
themselves" for entry by law enforcement
officers by, for example, "pull[ing] on
clothes or get[ting] out of bed."
Richards, 520 U.S. at 393 n. 5; Wilson,
514 U.S. at 930-32.


  B. Application of the Exclusionary Rule
is Not Appropriate for All Violations of
the Fourth Amendment.

  The United States Supreme Court has not
ruled on the issue of whether, or under
what circumstances, the exclusionary rule
should be used as a remedy for violations
of the knock and announce requirement.
Wilson, 514 U.S. at 937 n. 4; Ramirez,
523 U.S. at 72 n. 3./5

  We know, however, that the exclusionary
rule is not a constitutionally compelled
remedy for violations of the Fourth
Amendment, and that the introduction at
trial of illegally seized evidence does
not, of itself, rise to the level of a
violation of any rights protected by the
Constitution. United States v. Leon, 468
U.S. 897, 906 (1984)./6 Rather, the
exclusionary rule operates strictly as a
"judicially created remedy designed to
safeguard Fourth Amendment rights
generally through its deterrent effect,
rather than as a personal constitutional
right" that may be invoked by a criminal
defendant. United States v. Calandra, 414
U.S. 338, 348 (1974). Thus, whether the
exclusionary rule is appropriately
imposed in a particular case is "an issue
separate from the question whether the
Fourth Amendment rights of the party
seeking to invoke the rule were violated
by police misconduct." Leon, 468 U.S. at
906, quoting Illinois v. Gates, 426 U.S.
213, 223 (1983).

  We are well aware of the fact that there
are competing interests at stake when
courts are called upon to decide whether
or not to exclude evidence as a remedy
for a violation of the Fourth Amendment’s
reasonableness requirement. Obviously, we
are in full agreement with the underlying
purpose of the exclusionary rule: to
deter illegal police conduct by punishing
the behavior and removing the incentive
for its repetition. United States v.
Salgado, 807 F.2d 603, 607 (7th Cir.
1986).

  On the other side of the ledger, it is
beyond dispute that the exclusion of
evidence as a deterrent to police
misconduct involves significant social
costs. The exclusionary rule by
definition deprives courts and juries of
probative evidence of a crime, and
thereby offends the important
societalinterest in prosecuting,
punishing, and deterring criminal
conduct. See Nix v. Williams, 467 U.S.
431, 442-43 (1984).

  The appropriateness of applying the
exclusionary rule to a particular case is
in large part the product of weighing and
balancing these competing interests. "Our
cases have consistently recognized that
unbending application of the exclusionary
sanction to enforce ideals of
governmental rectitude would impede
unacceptably the truth-finding functions
of judge and jury." United States v.
Payner, 447 U.S. 727, 734 (1980). Indeed,
it is well-recognized that indiscriminate
application of the exclusionary rule may
well "generat[e] disrespect for the law
and administration of justice." Stone v.
Powell, 428 U.S. 465, 491 (1976).
Accordingly, application of the
exclusionary rule "has been restricted to
those areas where its remedial objectives
are thought most efficaciously served."
Calandra, 414 U.S. at 348.


  C. The Exclusion of Evidence is a
Disproportionately Severe Sanction in
Cases Where the Police Conduct Does Not
Actually Harm Protected Interests.

  Several well-established principles
guide our balancing of the competing
interests served and harmed by the exclu
sionary rule. Pertinent to this case is
the principle that "the exclusionary rule
is a sanction, and sanctions are supposed
to be proportioned to the wrong-doing
that they punish." Salgado, 807 F.2d at
607. The idea that sanctions must be
proportioned to the gravity of the wrong
has become an important element of Fourth
Amendment jurisprudence. Stefonek, 179
F.3d at 1035. The Supreme Court has
emphasized the role of proportionality in
assessing the propriety of excluding
evidence as a remedy for Fourth Amendment
violations as follows:

The disparity in particular cases between
the error committed by the police officer
and the windfall afforded a guilty
defendant by application of the
[exclusionary] rule is contrary to the
idea of proportionality that is essential
to the concept of justice.

Stone, 428 U.S. at 490.

  We find substantial guidance on the
question of proportionality from our
decision in Stefonek. In that case, we
held that where the violation of the
Fourth Amendment in a particular case
causes no discernable harm to the
interests of an individual protected by
the particular constitutional prohibition
at issue (in the present case the knock
and announce requirement), the exclusion
of evidence for the trial is a
disproportionately severe and
inappropriate sanction. Stefonek, 179
F.3d at 1034-35. In other words, the
principle of proportionality demands that
the application of the exclusionary rule
should be limited only to those instances
where the constitutional violation has
caused actual harm to "the interest
(whether in privacy or in a fair trial)
that the rights protect." Stefonek, 179
F.3d at 1036./7

  At issue in Stefonek was the use of
language in a search warrant authorizing
the seizure of "evidence of crime."
Stefonek, 179 F.3d at 1032. This all-
inclusive "description" of the items
subject to seizure was properly found to
fall short of satisfying the Fourth
Amendment’s requirement that a search
warrant "particularly describe the things
to be seized." Id. However, the
constitutionally infirm generality of the
warrant contrasted with the affidavit
accompanying the application for its
issuance, which clearly specified the
particular items to be seized. Id. When
executing the warrant, officers did not
seize any property other than those items
listed in the affidavit. Id.
  Under the circumstances presented,
Stefonek clearly held that exclusion of
the evidence seized pursuant to the
warrant was a disproportionately severe,
and thus an inappropriate, remedy for the
clear violation of the Fourth Amendment’s
requirement that a warrant identify the
particular items to be seized. Stefonek,
179 F.3d at 1033-34. This
disproportionality was established by
circumstances demonstrating that the
interest protected by the particularity
requirement (to ensure that a search does
not invade an individual’s privacy
interests beyond those necessary to
achieve a valid law enforcement purpose)
was neither harmed nor infringed upon by
the actual search that occurred. Id. The
following quotations from Stefonek are an
apt summary of its holding:

[W]e do not think that the consequence of
the violation of the Fourth Amendment in
this case should be the suppression of
the evidence seized . . . [Because] [t]he
seizure caused no harm to the policy that
underlies the requirement that a search
warrant describe with particularity what
is to be seized.

* * *

[T]he violation of the Fourth Amendment
in this case did no harm to any of the
interests that the amendment protects, so
that exclusion of the evidence seized
under the warrant would be a
disproportionate sanction.

Stefonek, 179 F.3d at 1033, 1035
(emphasis added).

  In reaching our conclusion in Stefonek,
we made an analogy to the common law
doctrine that even the most blatantly
negligent conduct is not actionable in
tort unless it causes injury. Stefonek,
179 F.3d at 1035. So too in the arena of
Fourth Amendment jurisprudence. The
exclusion of probative evidence is too
disproportionately severe a remedy where
the Fourth Amendment violation has not
harmed the particular interest protected
by the constitutional requirement at
issue.

  D. The Officers’ Conduct Did Not Harm
Espinoza’s Interests Protected by the
Knock and Announce Rule.
  Stefonek’s analysis of the
disproportionality principle is equally
applicable to the current factual
situation. To reiterate, the interests of
an individual (whose premises are subject
to a valid search warrant) protected by
the knock and announce requirement are:
(1) the opportunity to comply with the
law and peaceably permit officers to
enter the residence; (2) the avoidance of
unnecessary destruction of property
occasioned by forcible entry; and (3) the
opportunity for individuals to dress, get
out of bed, or otherwise prepare
themselves for entry by law enforcement
officers. Richards, 520 U.S. at 393 n. 5;
Wilson, 514 U.S. at 930-32. The core
interest protected by the knock and
announce requirement is therefore the
receipt of notice by occupants of the
dwelling sufficient to avoid the degree
of intrusiveness attendant to a forcible
entry as well as any potential property
damage that may result.

  Given Espinoza’s resistive physical
response to the officers’ attempt to gain
forcible entry into his home (holding the
door shut to prevent the officers from
entering) we fail to see how the
officers’ alleged failure to wait an
objectively reasonable amount of time
before forcing the doors caused any harm
to Espinoza’s interests (whether in
privacy or property) protected by the
knock and announce requirement./8 If
the officers had waited thirty seconds,
or a min-ute, or two minutes, before
attempting forced entry, would Espinoza
have complied with the law and allowed
officers to peaceably enter, thereby
saving the destruction of his door? The
answer is "no." If Espinoza had any
intention of allowing the officers into
his residence and saving the destruction
of the door, common sense dictates that
he would have done so after hearing the
first knock and announcement and the
sounds of the officers crashing through
the outer (first) door with the battering
ram--he would not have attempted to hold
the inner (second) door shut. The record
leads us to conclude that if the officers
had waited longer before forcing the
door, the only "preparation" that would
have been undertaken by Espinoza was the
erection of a more formidable barricade
using furniture or whatever else was
readily available. Espinoza’s decision to
take affirmative action to prevent the
officers’ entry convinces us that had the
officers waited five seconds, sixty
seconds, or more, Espinoza would have not
only refused them admittance, but would
have attempted to prevent their
entry./9 Assuming, as we must in this
case, that the officers failed to comply
with the timing element of the knock and
announce requirement, the only "interest"
of Espinoza’s that would have been
furthered was his interest in more
effectively interfering with the
officers’ duty to take possession of and
confiscate the illegal drugs. Espinoza’s
"interest" in thwarting the entry of
officers armed with a valid search
warrant is certainly no more compelling
than a suspect’s supposed "interest" in
hastily destroying evidence of a crime or
arming himself while officers wait
patiently at the door. The protection of
an individual’s interests underlying
application of the exclusionary rule do
not extend to any "right" to engage in
further criminal activity. Segura, 468
U.S. at 816 ("[W]e decline to extend the
exclusionary rule, which already exacts
an enormous price from society and our
system of justice, to further ’protect’
criminal activity[.]"); Kip Jones, 214
F.3d at 838. In short, we are aware of no
lawful interest of Espinoza’s that was
harmed by the officers’ alleged
constitutional error. The district court
was mistaken in concluding, without
explanation or analysis, that the
officers’ conduct caused harm to
Espinoza’s protected interests.

  In reaching our conclusion on the
remedial issue, we note that Espinoza has
not at any time argued that he was
unaware that the individuals attempting
to enter his residence were law
enforcement officers. Nor does he allege
that officers failed to identify
themselves or announce the purpose for
their presence at the door. Contrary to
the position taken by the dissent, the
absence of these factors precludes the
possibility that Espinoza barricaded the
door in the mistaken belief that someone
other than law enforcement officers were
attempting to force their way into his
home.

  Public concern over the cancer of
illegal drug trafficking, and the desire
to punish those who choose to engage in
this criminal behavior, are important
societal interests that would be
sacrificed by application of the
exclusionary rule to this case. These
compelling public interests, when weighed
against the absence of any discernable
harm to Espinoza’s interests protected by
the knock and announce requirement,
compel the conclusion that the remedy of
exclusion of the evidence is a
disproportionately severe and
inappropriate sanction for the officers’
alleged constitutional error./10
Because we find this issue to be
dispositive of the appeal, we need not
address the parties’ other arguments
relating to the applicability of the
"independent source" or "inevitable
discovery" exceptions to application of
the exclusionary rule. See Segura, 468
U.S. at 805; Nix, 467 U.S. at 440-
48./11

  We do not wish our opinion on the
applicability of the exclusionary rule to
this particular factual situation to be
interpreted as condoning the procedures
used by the Racine, Wisconsin law
enforcement officers as set forth in this
record. The standard operating procedure
of the Racine County Metro Drug Unit to
serve knock and announce search warrants
in the middle of the night and to pause
five seconds between announcing their
presence and forcibly entering a
residence may very well continue to
expose the department to situations in
which problems of a constitutional dimen
sion are unnecessarily created. It should
be self-evident that we do not condone a
practice that has this effect, and we
caution law enforcement officers to
conduct themselves in a manner respectful
of the interests of their fellow citizens
protected by the Fourth Amendment. The
fact that Espinoza’s interests were not
harmed under the peculiar facts of this
case in no way detracts from the
obligation of officers to zealously
protect each individual’s constitutional
rights and strictly observe the
parameters of the Constitution.

III.   CONCLUSION

  We hold that the evidence obtained
during the search of Espinoza’s residence
should not be excluded on Fourth
Amendment grounds because the remedy of
exclusion is a disproportionately severe
sanction for the officers’ alleged
misconduct. The decision of the district
court is REVERSED, and this case REMANDED
for further proceedings consistent with
this opinion.

FOOTNOTES

/1 Due to the number of cases in this area in which
the defendant’s name is Jones, we will attempt to
avoid confusion by citing these cases using the
defendant’s full name.

/2 United States v. Dice, 200 F.3d 978 (6th Cir.
2000), and United States v. Marts, 986 F.2d 1216
(8th Cir. 1993).

/3 The Fourth Amendment does not require officers to
"knock and announce" when they have a "reasonable
suspicion that knocking and announcing their
presence, under the particular circumstances,
would be dangerous or futile, or that it would
inhibit the effective investigation of the crime
by, for example, allowing the destruction of
evidence." Richards v. Wisconsin, 520 U.S. 385,
394 (1997); see also United States v. Ramirez,
523 U.S. 65, 67-68 (1998). In other words, offi-
cers need not knock and announce prior to forc-
ible entry when they have a reasonable suspicion
that advanced notice would result in the inhabit-
ants arming themselves or disposing of drugs or
other evidence. Richards, 520 U.S. at 391; Wil-
son, 514 U.S. at 936.

/4 As previously noted, the Fourth Amendment does
not prohibit unannounced entry in all situations,
and takes into account the potential for danger
to officers as well as the propensity of a
defendant to dispose of the evidence. Wilson, 514
U.S. at 934; Richards, 520 U.S. at 387-93. The
exceptions to the knock and announce requirement
are not pertinent to our review in this case.

/5 In Wilson, the Court declined to address the
remedial issue, finding it to be beyond the
narrow question on which certiorari was granted.
Wilson, 514 U.S. at 937 n. 4. In Ramirez, the
Court concluded that no violation of the Fourth
Amendment had occurred, thus making consideration
of the remedy unnecessary. Ramirez, 523 U.S. at
72 n. 3.

/6 Indeed, standing to even invoke the exclusionary
rule is "limited to cases in which the prosecu-
tion seeks to use the fruits of an illegal search
or seizure against the victim of police miscon-
duct," and the rule has no application to the
introduction of illegally seized evidence against
the victim’s co-conspirators or co-defendants.
Leon, 468 U.S. at 910.
/7 Because our opinion in Stefonek scrupulously
avoided using the inevitable discovery exception
to the exclusionary rule as the basis for deci-
sion, we fail to understand what the dissent
means to imply when stating that the holding in
Stefonek was "in keeping with the spirit" of the
inevitable discovery doctrine. While Stefonek
described its holding as being "a similar case"
to a case implicating the inevitable discovery
rule, the opinion went on to hold that the
difference between the two scenarios was that
"here the lack of injury to a protected interest
is a certainty rather than merely a probability."
Stefonek, 179 F.3d at 1035. To borrow a phrase
from the dissent, the "logical foundation" of our
holding in Stefonek was that the lack of harm
done to a protected interest rendered exclusion
too disproportionately severe a remedy.

  Indeed, the proposition that Stefonek is an
"inevitable discovery" case falters under the
weight of the dissent’s explanation of the doc-
trine. According to the dissent, "the Court has
limited the use of the inevitable discovery idea
to situations in which law enforcement was en-
gaged, or did engage, in a violation-free inves-
tigation that would have yielded or did yield the
disputed evidence." Accepting the accuracy of the
dissent’s interpretation of the inevitable dis-
covery doctrine (a debatable subject in light of
United States v. Dennis Jones, 149 F.3d 715, 716-
17 (7th Cir. 1998), and Kip Jones, 214 F.3d at
838), the dissent’s view precludes the possibili-
ty that Stefonek was decided on the basis of the
inevitable discovery doctrine. In Stefonek, as in
the case before us, there was only one search
performed. There was no second legally executed
search, no second search warrant obtained, no
"other ongoing investigation" that would have
yielded the same evidence, and no "separate,
untainted source for the seized evidence."

/8 Contrary to statements made in the dissent, our
conclusion that no harm was done to Espinoza’s
interests as protected by the knock and announce
rule is based on his attempt to hold the door
shut, and has nothing to do with the evidence
eventually discovered during the search of his
apartment.

/9 The dissent is concerned that our holding relies
on facts that emerged after the officers’ entry
through the common door. According to the dis-
sent, this "amounts to a significant departure
from Supreme Court precedent and from Stefonek."
After coming to this conclusion, however, the
dissent neither delineates any Supreme Court
decisions to the contrary nor explains how our
holding is inconsistent with Stefonek. Rather,
the dissent cites two cases that we do not
believe are applicable, Woods v. City of Chicago,
234 F.3d 979, 996 (7th Cir. 2000), and United
States v. Hall, 142 F.3d 988, 995 (7th Cir.
1998). Both of these cases involved the question
of whether officers violated the proscriptions of
the Fourth Amendment. Here, in contrast, we are
concerned with a separate and distinct question,
namely the appropriateness of applying the exclu-
sionary rule in light of the need for proportion-
ality in sanctioning police misconduct. The
dissent has cited no case law in support of its
idea that the remedial question must turn exclu-
sively on facts known to the officers prior to
their allegedly unconstitutional actions.

  With respect to the remedial issue (the only
issue before us), we are therefore less concerned
with the state of the officers’ knowledge at the
time they arrived at Espinoza’s residence than we
are with what actually happened during the course
of the ensuing entry and search. This analytical
framework is precisely the one employed in Stefo-
nek, where the lynchpin of our holding was that
a post hoc review of the search actually per-
formed pursuant to the defective warrant did not
exceed the limits specified in the affidavit used
to obtain it. The evidence that was seized during
the search performed in Stefonek was a fact that
obviously could not have been "known" to law
enforcement officers prior to the commission of
the constitutional violation.

/10 We reached the same conclusion in Stefonek: "Thus
we know that no lawful interest of Stefonek’s was
harmed by the constitutional error, and equally
that the taxpaying and law-abiding public will be
harmed if her conviction is thrown out because of
the error." Stefonek, 179 F.3d at 1035.

/11 We note that a primary focus of the dissent is
the rejection of the government’s argument that
the inevitable discovery doctrine should be
applied to this case. We neither endorse nor
reject the dissent’s views on this subject, and
hold the question to be beyond the scope of what
is necessary for resolution of the appeal.




  DIANE P. WOOD, Circuit Judge, dissenting. While
I agree with the majority that one must analyze
Fourth Amendment cases on their facts, in my view
the uncontested factual record before us on this
appeal requires us to affirm the district court’s
decision to suppress the evidence found in Miguel
Espinoza’s apartment. I therefore respectfully
dissent.
  The majority’s description of the facts underly-
ing the motion to suppress accurately sets the
stage for the legal issue presented to us: wheth-
er the exclusionary rule should be invoked here
to suppress the drugs, cash, and drug parapherna-
lia that the Racine County Sheriff’s officers
seized in the wee hours of March 27-28, 2000.
And, as the majority agrees, a series of conces-
sions has removed some potentially interesting
issues from the scope of this appeal. We there-
fore have no occasion to question two important
propositions: first, that the officers waited an
unreasonably short period of time between an-
nouncing their presence and forcibly entering
first the building and then Espinoza’s unit (five
seconds, each time), and second, that the speed
of the officers’ entry was not justified by
exigent circumstances. A change in either one of
those facts obviously would have made a differ-
ence to our analysis.

  With that much established, the majority goes
on to apply the framework established in United
States v. Stefonek, 179 F.3d 1030 (7th Cir.
1999), to the question whether the remedy afford-
ed by the exclusionary rule should be applied
here. In Stefonek, this court first concluded
that the police did not have an adequate warrant
to justify their seizure of certain business
records, because the warrant itself was so vague
that it amounted to an impermissible general-
warrant, and it failed to incorporate a more
specific affidavit by reference. Id. at 1033. The
court expressed concern about the applicability
of the good-faith exception to the warrant re-
quirement that the Supreme Court created in
United States v. Leon, 468 U.S. 897 (1984),
because the defect in the warrant was so obvious.
Rather than rely on Leon, the court reviewed the
circumstances under which suppression is (or is
not) necessary in order to further the purposes
of the Fourth Amendment rule in question. Those
purposes include a concern for protecting the
property and privacy of the individual whose
premises are to be searched and property to be
seized, the need to confine searches to constitu-
tional limits, and a desire to head off avoidable
breaches of the peace (of particular importance
to the "knock and announce" aspect of the rule).
In keeping with the spirit of the inevitable
discovery exception to the Fourth Amendment’s
exclusionary rule, the court then looked to the
factual record to determine whether the police
officers’ actual conduct infringed upon any of
these interests. No harm, no foul, said the
court. The officers had established probable
cause to obtain a warrant and they had limited
their search to matters consistent with the
probable cause affidavit. Had the magistrate
judge simply incorporated the existing affidavit
by reference in the warrant, exactly the same
materials would have been seized. Because this
safeguard was in place and the search was just as
confined as it would have been if everything had
gone according to plan, no harm resulted from the
technical violation of the rules and no suppres-
sion was necessary. In spirit, if not in detail,
this ruling followed the same line of thinking as
the Supreme Court’s decisions in Nix v. Williams,
467 U.S. 431 (1984), and Leon.

  My concern here is that the majority has un-
moored the intermediate step of Stefonek from its
logical foundation. The error in Stefonek did not
warrant suppression precisely because the offi-
cers themselves never violated the interests
protected by the Fourth Amendment. Given the very
specific nature of the affidavit that had been
prepared before the warrant was executed and the
properly limited scope of the subsequent search,
the court found that case to be suitable for the
application of a kind of harmless error rule.

  Our case is different in several respects. The
problem was not with the specificity of the
warrant, but instead was with the manner in which
the warrant was executed. There was nothing in
the record to show that ex ante everything was in
order. Indeed, the evidence in the record points
the other way and suggests with some force that
the Racine County Sheriff’s Department has a
practice of unconstitutionally executing war-
rants. As the majority notes and rightly criti-
cizes, the Department has a policy of waiting
only five seconds before serving "knock and
announce" warrants. Especially in the middle of
the night, which seems to have been the Depart-
ment’s preferred time for serving warrants,
hardly anyone could scramble out of bed and reach
the door in time to make a peaceful entry possi-
ble. Espinoza’s is a case in point. Consistent
with the Department’s policy, the officers
crashed through the front door of Espinoza’s
duplex at midnight after waiting only five sec-
onds. In doing so, they deprived Espinoza of the
opportunity to permit the officers to execute
their warrant without the use of unnecessary
force and property damage. Contrary to the major-
ity’s conclusion, and in contrast to the officers
in Stefonek, the Racine County officers therefore
did offend the interests protected by the Fourth
Amendment "knock and announce" rule.

  Relying largely on Espinoza’s efforts to keep
the officers from entering the interior door to
his apartment, themajority disagrees with this
conclusion. Its rationale, however, amounts to a
significant departure from Supreme Court prece-
dent and from Stefonek. Normally Fourth Amendment
issues are analyzed on the basis of information
available to the police at the time they act: at
the time they claim probable cause is present,
Woods v. City of Chicago, 234 F.3d 979, 996 (7th
Cir. 2000), at the time they obtain a warrant,
United States v. Hall, 142 F.3d 988, 995 (7th
Cir. 1998), or at the time they execute a war-
rant. This perspective reflects the fact that
after-acquired information about the defendant’s
alleged criminal activity should not influence
either the scope of the defendant’s Fourth Amend-
ment rights or whether they were violated.

  The majority reasons that the officers’ actions
did not offend any interests protected by the
Fourth Amendment because Espinoza made it clear
by his actions that he had no intention of taking
advantage of the opportunities afforded to him by
the "knock and announce" rule. But whatever
actions Espinoza took were not actions that were
inevitably suspicious at the time the officers
broke down the front door. The majority’s reason-
ing holds together only if we are willing to
consider at the suppression stage evidence that
cannot be considered at the violation stage. In
light of the evidence that Espinoza was later
found to be in possession of a substantial quan-
tity of drugs, the majority argues that his
attempt to block the interior door must as a
matter of law be regarded as proof that he would
not have opened the front door even if he had
been given a constitutionally sufficient opportu-
nity to do so. If, on the other hand, we disre-
gard the after-acquired evidence, there is no
reason to think Espinoza’s efforts to block the
interior door were anything other than a natural
defensive response to hearing someone crash
through his front door in the middle of the night
and then start to try to break down the interior
door. Viewed from this perspective, Espinoza’s
actions tell us little about what he would have
done had he been given proper notice of the
police’s desire to gain entry through the front
door.

  Perhaps recognizing the vulnerability of such a
post hoc approach to the issue, the government
has fought the suppression order in a different
way. It argues flatly that the exclusionary rule
should never be available to redress Fourth
Amendment violations that pertain "only" to the
manner of executing a warrant, not to the scope
of what premises may be searched or what may be
seized. As long as the officers have a valid
warrant, discovery of whatever lies within will
inevitably occur, no matter how flagrantly the
entry tactics violate the purposes of the Fourth
Amendment. The majority has wisely refused to
accept this per se rule. The Supreme Court has
never indicated that such a blanket rule is
appropriate; to the contrary, it has always
stressed the fact-specific nature of Fourth
Amendment inquiries. The inevitable discovery and
independent source doctrines have consistently
been construed so as to preserve suppression as
a remedy designed to deter police misconduct in
certain circumstances. Nix v. Williams, 467 U.S.
431, 444 (1984) (explaining that where untainted
ongoing search would have turned up evidence
"deterrence rationale has so little basis that
the evidence should be received"); Murray v.
United States, 487 U.S. 533, 539-40 (1988) (em-
phasizing continued deterrent effect of rule that
permits officers to obtain and execute proper
warrant after first conducting illegal search).

  Suppression retains its deterrent effect only so
long as it is consistently applied to prevent law
enforcement officers from benefitting from their
Fourth Amendment violations. The "no benefit"
principle would be destroyed if, as the govern-
ment suggests, it is always sufficient for offi-
cers to spell out after the fact a hypothetical
scenario by which they could have properly ob-
tained the evidence. In order to avoid this
reductio ad absurdam, the Court has limited the
use of the inevitable discovery idea to situa-
tions in which law enforcement either was en-
gaged, or did engage, in a violation-free inves-
tigation that would have yielded or did yield the
disputed evidence. In Nix, the Court found ille-
gally obtained evidence admissible because the
government was able to prove by a preponderance
of the evidence that an independent ongoing
investigation would have led law enforcement to
the same evidence. 467 U.S. at 448-50. Similarly,
in Segura v. United States, 468 U.S. 796, 813-16
(1984), after entering and seizing the suspect’s
premises without a warrant, the police obtained
a warrant without relying on any of the informa-
tion obtained from the original entry and proper-
ly seized evidence pursuant to that valid war-
rant. In Murray, the police conducted a warrant-
less entry and seized evidence, but then they
obtained a warrant without relying in any way on
the seized evidence and re-executed the search
and seizure. Emphasizing the importance of a
separate, untainted source for the seized evi-
dence, the Court explained that "[t]he ultimate
question . . . is whether the search pursuant to
the warrant was in fact a genuinely independent
source of the information and tangible evidence
at issue. This would not have been the case if
the agent’s decision to seek the warrant was
prompted by what they had seen during the initial
entry, or if information obtained during that
entry was presented to the Magistrate and affect-
ed his decision to issue the warrant." 487 U.S.
at 542. The only way to read these cases is as a
rejection of the kind of wholesale "we could have
conducted a proper search" approach urged by the
government.

  In this case, there are no facts comparable to
those in Nix, Murray, and Segura that would allow
us to recognize the inevitable discovery doctrine
without undermining the suppression remedy’s
deterrent effect. The evidence seized in Espi-
noza’s apartment was the product of only one
illegally executed search and as such is subject
to exclusion. Segura, 468 U.S. at 804. This is in
marked contrast to Segura, where subsequent to
the illegal entry a proper search was conducted
and "[t]he illegal entry into petitioners’ apart-
ment did not contribute in any way to discovery
of the evidence seized under the warrant." Id. at
815. In Espinoza’s case, there was no other
investigation ongoing that would have yielded the
same evidence and the police did not, after the
fact, obtain and properly execute another war-
rant. Rejecting the government’s attempt to
invoke inevitable discovery on these facts does
not put the government in a worse position than
it otherwise would have been in. It merely pre-
vents the government from benefitting from an
illegal search. Without a requirement of at least
one untainted investigation apart from the unlaw-
ful one before the exclusionary rule can be
avoided, the exclusionary rule itself would be
severely undermined, and along with it, the
salutary deterrent effect it provides.

  On the broad question whether suppression is an
available remedy when the manner of executing a
valid warrant violates the Fourth Amendment, I
thus agree with my colleagues on the Sixth and
Eighth Circuits who have said that in certain
cases it is. See United States v. Dice, 200 F.3d
978, 984 (6th Cir. 2000) (rejecting inevitable
discovery in "knock and announce" violation case
where there was no evidence of a properly con-
ducted investigation that would have led to the
same evidence); United States v. Marts, 986 F.2d
1216, 1220 (8th Cir. 1993) (same). I realize
there are recent opinions from this court that,
if read expansively, might be thought to look the
other way. See, e.g., United States v. Kip Jones,
214 F.3d 836 (7th Cir. 2000). But such an inter-
pretation would be inconsistent with the Supreme
Court’s jurisprudence requiring an actual inde-
pendent source of the tainted evidence. Rather
than take this step, I think it better to consid-
er the statements in Kip Jones in light of the
facts there presented, which are distinguishable
from the ones now before us. As Judge Coffey’s
separate opinion (dissenting in part and concur-
ring in part) in Kip Jones makes clear, there
were ample facts in the Kip Jones record to
support the reasonableness of the methods the
police officers chose to use under the circum-
stances they faced there. Most importantly, there
was definitely no concession from the government
in Kip Jones that the entry or its methods were
unreasonable. We have such a concession here, and
as I stressed at the outset, it is in that light
that I approach this case.

  The remaining question is whether the Fourth
Amendment violation in our case requires suppres-
sion of the evidence that was seized, or if
Espinoza should be remitted to his other, largely
illusory, remedies. I agree with that portion of
the majority’s opinion that emphasizes the fact-
specific and balancing approach that we must take
to this question. Again, however, we are con-
strained by the government’s concessions, includ-
ing, in particular, its concession that the
Fourth Amendment violation in this case occurred
when the officers waited only five seconds before
crashing through Espinoza’s front door. It is
plain that Espinoza was not involved in any
obstructive action at that time. The officers had
a constitutional obligation to give Espinoza
adequate notice of, and an opportunity to respond
to, their presence. They denied him that opportu-
nity, even though they had no indication that
Espinoza would not take advantage of it. The fact
that Espinoza took steps to prevent the officers
from entering through the interior door after
they had already violated his rights at the front
door does not make the officers’ violation of
Espinoza’s Fourth Amendment rights, and the
interests protected by those rights, any less
flagrant.

  Looking at the situation at the time the offi-
cers started barging into Espinoza’s building,
therefore, and taking into account the two criti-
cal factual concessions, I would affirm the
district court and suppress the evidence. My
conclusion that this is the legally correct
outcome does not in any way reflect a view that
it is unimportant to enforce the drug laws, or
any other laws for that matter. On the other
hand, as the recent tragic killing of the young
Baptist missionary, Roni Bowers, and her infant
daughter in Peru by drug enforcement officials
illustrates, overzealous enforcement tactics can
sometimes inflict injury on someone whose inno-
cence or guilt is unknown until it is too late.
See Irvin Molotsky, Baptists’ Plane Identified As
Drug Carrier, N.Y. Times, April 22, 2001, at A1.
The protections established by the Fourth Amend-
ment, as well as the principal remedy courts have
used for years to redress violations of that
amendment, are designed to respect personal
interests and to deter unconstitutional police
behavior. In this case, the officers carried out
their mission in an unconstitutional way, and I
agree with the district court that suppression
was the proper remedy.

  I therefore respectfully dissent.
