                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3654
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Santos Garcia Tavares,                   *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: February 15, 2000

                                   Filed: August 31, 2000
                                    ___________

Before BEAM and JOHN R. GIBSON, Circuit Judges, and PRATT,1 District Judge.
                            ___________

JOHN R. GIBSON, Circuit Judge.

       Santos Garcia Tavares conditionally pled guilty to possessing a firearm in
violation of 18 U.S.C. § 922(g) (1994 & Supp. IV 1998), reserving the right to appeal
the district court’s denial of his motion to suppress evidence obtained in connection
with a search of his house by state and federal authorities on March 6, 1998. Because
the searching officers violated 18 U.S.C. § 3109 (1994), we reverse and instruct the
district court to vacate Tavares’s guilty plea and grant his motion to suppress.

      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
        On the morning of March 6, 1998, Sergeant Michael Drews of the St. Paul
Police Department contacted the Drug Enforcement Agency and spoke with Agent
Glenn Haas. Drews told Haas that Sergeant Greg Lind, also with the S.P.P.D., was in
the process of requesting that a state judge sign a search warrant authorizing a "no-
knock" entry for a residence at 492 Ada Street, St. Paul, Minnesota. Drews explained
that an individual had been seen at the residence whose associations could be traced
to individuals connected to a DEA investigation. In response, Haas contacted Ed
Bauer, his group supervisor, and Tim McCormick, the resident DEA agent in charge
of the local office. The three went to the S.P.P.D. to determine whether a search of 492
Ada Street would interfere with the DEA investigation. When Lind arrived with the
signed warrant, Haas read it. Based on information Lind provided, Haas determined
the search would not interfere with the DEA investigation, and his supervisors agreed.
With the DEA’s approval, Lind decided to go forward with the search. Haas testified
that the DEA agents volunteered their assistance because there was a potential of
finding a large amount of drugs in the house, and if that occurred, the case might be
prosecuted in federal court. Lind needed the help, so he accepted the offer. Lind then
briefed the officers and agents who would be executing the search as to the house’s
location and the plan for the initial entry.

       At 1:30 p.m that same day, the officers and agents executed the search warrant.
Four federal agents participated. Haas and Agent Dan Faflack, a Customs Agent on
the DEA Task Force, were part of the entry team. Bauer and McCormick were posted
outside. Lind, the lead person on the entry team, used a ram to force his way into the
house. He did not knock and announce his presence before entering. Tavares, who
was present during the search, was handcuffed by Lind and placed on the living room
couch. In an upstairs bedroom closet, Lind found a .45 caliber semiautomatic handgun
and a fully-loaded .45 caliber clip. However, no drugs were discovered.




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                                          I.

       When a district court denies a motion to suppress evidence, we will uphold the
court’s findings of fact unless clearly erroneous. See United States v. McMurray, 34
F.3d 1405, 1409 (8th Cir. 1994). However, we review the court’s application of law
to those facts de novo. Id. “We affirm the district court’s denial of a motion to
suppress evidence unless it is unsupported by substantial evidence, based on an
erroneous interpretation of the law, or, based on the entire record, it is clear that a
mistake was made.” United States v. Murphy, 69 F.3d 237, 240 (8th Cir. 1995)
(internal quotations omitted). Because the district court erred in interpreting the law
and in applying it to the facts of this case, we reverse.

                                          II.

       Tavares argues that the district court erred in concluding that 18 U.S.C. § 3109
did not apply to the officers’ and agents’ conduct in executing the search warrant. The
statute provides:

      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 a warrant.

18 U.S.C. § 3109.

                                          A.

      Section 3109 applies “[w]hen federal officers are a significant part of a search
conducted pursuant to a state warrant . . . .” United States v. Murphy, 69 F.3d 237,
242 (8th Cir. 1995); see United States v. Moore, 956 F.2d 843, 847 n.3 (8th Cir. 1992).

                                          -3-
Accord United States v. Brown, 52 F.3d 415, 418, 420 (2d Cir. 1995) (search executed
by state and federal officers pursuant to a state warrant made the search subject to
federal rules). In Moore, we stated that “[f]ederal agents may not circumvent more
restrictive federal requirements by arranging for state officers to search under state
law,” 956 F.2d at 847 n.3.2

        In the case before us, the facts related to the issue of federal involvement are not
in dispute. The search warrant was obtained by a state officer, Lind, and issued by a
state judge. Haas testified that he was contacted around the time the warrant was being
obtained, and that he in turn contacted Bauer and McCormick. Soon thereafter, and
before it was executed, Haas read the warrant. Though they were not involved in the
planning, directing, or organization of the search, agents Haas, Bauer, McCormick, and
Faflack constituted four of the approximately ten law enforcement officers who
participated in the search. Six or seven of those officers, including Haas and Faflack,
were members of the entry team. Haas’s supervisors, Bauer and McCormick, were
posted outside the house. Haas testified that part of the execution of a warrant involves
officers standing around the perimeter of the search scene, so Bauer and McCormick
did, in fact, participate in the execution of the warrant at Tavares’s residence.
According to Haas’s testimony, he was interested in participating in the execution of
the warrant because of the possibility of a federal prosecution if a large amount of drugs
was recovered. Haas discussed this possibility with the St. Paul police prior to the
search. Lind, the only other witness to testify, confirmed that the federal agents
participated in executing the warrant because of the possibility of finding a large
amount of drugs.




       2
       Unlike the dissent, however, we do not read Moore, or any of our other
precedent to require an additional showing that the state warrant is just a "ruse" to
cloak a federal investigation once significant federal involvement is shown.

                                            -4-
       The district court focused primarily on the lack of federal involvement in
obtaining the search warrant, noting that “the preparation of the affidavit in support of
the search warrant was well along in its formative stages” when there was contact
between the St. Paul officers and the federal authorities. The court found it significant
that the affidavit was prepared before any federal involvement in the case. The court
further found that the federal involvement was only “incidental to the state court search
warrant,” and that there was no intent to evade the federal requirements of 18 U.S.C.
§ 3109. Therefore, the court determined that section 3109 did not apply. The court’s
concentration primarily on the lack of federal involvement in obtaining the search
warrant, giving substantially lesser weight to federal involvement in the execution of
the warrant, does not faithfully apply our precedent.

       In determining whether there is significant federal involvement, our cases focus
not only on the efforts to obtain a warrant, but also on the execution of the warrant. In
United States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982), we observed that “federal
involvement in a state search may serve to render the search subject to federal
procedures.” However, since no federal officers were involved in the criminal
investigation, or in obtaining or executing the warrant, federal rules did not apply to the
search. Id. at 662-63.3 See also Moore, 956 F.2d at 847 (section 3109 not applicable
where state officers acted totally without federal involvement in seizing evidence);
United States v. Murphy, 69 F.3d 237, 242 (8th Cir. 1995) (no “significant federal
involvement” where no federal officer participated in initial entry and search of
residence, and where federal officers not contacted until after state officers found what
they believed to be explosives). In United States v. Schroeder, 129 F.3d 439, 443 (8th
Cir. 1997),4 we held that even the presence of federal officers at the search would not

      3
       McCain involved the applicability of Fed. R. Crim. P. 41(d). However, the
analysis is the same in section 3109 cases. See footnote 4, infra.
      4
       Schroeder involved the applicability of Fed. R. Crim. P. 41(d), rather than 18
U.S.C. § 3109. However, our analysis was based on our prior ruling in Moore, a

                                           -5-
have constituted significant federal involvement, at least where state officers obtained
and executed a warrant issued by a state judge as part of an investigation based on state
law. Cf. Byars v. United States, 273 U.S. 28, 33 (1927) (before the exclusionary rule
was held applicable to the states, federal participation in execution of state warrant
rendered the search “in substance and effect . . . a joint operation” of local and federal
officers to which federal exclusionary rules apply); Lustig v. United States, 338 U.S.
74, 79 (1949) (“The decisive factor in determining the applicability of the Byars case
is the actuality of a share by a federal official in the total enterprise of securing and
selecting evidence by other than sanctioned means. It is immaterial whether a federal
agent originated the idea or joined in it while the search was in progress.”).

       While there is no question the warrant was obtained by state officials, there was
contact between the St. Paul Police Department and the federal agents before the
warrant was obtained. There was discussion of the effect of the search upon a DEA
investigation and the possibility that the search might uncover multiple pounds of
methamphetamine. Both Lind and Haas contemplated federal prosecution if that
quantity of drugs were recovered. The federal officers thus played more than a passive
role in preparing for the search.

      Regarding the execution of the warrant, four of the approximately ten officers
involved were federal. Of the entry team of six or seven, two were federal. There is
no doubt that Lind of the St. Paul Police Department forced open the door, but the two
federal officers were either second and third in the entry, or third and fourth. These
federal officers each searched a specific portion of the house. Had they found illegal
contraband, they would have asked the state inventory officer to seize it. The two
federal supervisors also participated in the entry by being present outside the residence.
McCain, Moore, and Murphy all point to the significance of participation in the search.



section 3109 case.

                                           -6-
The district court erred in concluding that the federal involvement was only “incidental
to the state court search warrant.”

       There is more federal involvement in the execution of the warrant in this case
than in the cited cases. Here, federal agents were directly involved in the execution of
the search warrant. That participation was lacking in McCain, Moore, and Murphy,
and was “at most negligible” in Schroeder, 129 F.3d at 443. And unlike the situation
in Schroeder, id., where officers conducted a search to look for possible violations of
state law, Lind and Haas contemplated that Tavares might be prosecuted federally if
a large amount of drugs were uncovered. This situation is one that fits the definition
of “significant involvement of federal officers.” Where federal agents directly
participate in a search conducted pursuant to a state warrant, but with an expectation
of federal prosecution, the stage is set for the circumvention of more restrictive federal
requirements such as those set forth in section 3109. See Moore, 956 F.2d at 847 n.3.
Therefore, we conclude that the district court erred in determining that there was no
significant federal involvement. Section 3109 was thus applicable.

                                           B.

      The next step in our section 3109 analysis is to determine whether the statute has
been violated. Lind admitted in his testimony before the magistrate judge that he had
not knocked and announced his presence or purpose before entering the Tavares home.
Our inquiry does not stop there, however, as exigent circumstances can excuse officers
executing a search warrant from meeting the requirements of section 3109. There must
be particular facts establishing “an urgent need to force entry[, which] . . . may result
from danger to the safety of the entering officers or from the imminent destruction of
evidence.” United States v. Lucht, 18 F.3d 541, 549 (8th Cir. 1994). However, at the
time of the search in the present case, the officers had no evidence of any such exigent
circumstance.


                                           -7-
       With regard to the destruction of evidence exigency, there is no blanket
exception to the knock and announce requirement for felony drug cases. See Richards
v. Wisconsin, 520 U.S. 385, 388 (1997).5 Therefore, the government must point to
exigent circumstances peculiar to this case. We know from Lind’s affidavit in support
of his application for the search warrant that he held the following additional
information: (1) a confidential reliable informant stated he or she saw a large quantity
of a controlled substance at 492 Ada Street in the presence of its resident, identified as
Santos; (2) a criminal history check of Tavares showed six entries for either drug
possession or parole and probation violations on drug related charges; (3) while
conducting surveillance of the residence, Lind had observed individuals he knew to be
involved in the drug trade; and (4) the residence might be connected to the individuals
responsible for an earlier drug related arrest which uncovered five pounds of
methamphetamine. The officers had evidence of a large quantity of drugs, and while
Lind’s affidavit states that drugs are easily disposed of, he testified that a package of
five pounds of methamphetamine is large and would not be easy to flush down a toilet
or pour down a sink. The presence of a large amount of drugs makes their imminent
destruction difficult, which cuts against the argument that evidence might have been
destroyed had the officers knocked and announced their presence. See United States
v. Bates, 84 F.3d 790, 796-97 (6th Cir. 1996) (no exigency existed, because fifteen
pounds of cocaine could not be quickly disposed of, and there was no reason to believe
that the defendants were likely to destroy evidence). Furthermore, at the time he
applied for the warrant, Lind did not have any information that Tavares had any history
of trying to destroy or hide evidence.




      5
        Though this case analyzed the knock and announce requirement in light of the
Fourth Amendment reasonableness inquiry, the principle we cite is equally applicable
to a section 3109 inquiry, because section 3109 “is more restrictive than the Fourth
Amendment.” Moore, 956 F.2d at 847.

                                           -8-
       There is also no evidence in the instant case showing that a no-knock entry was
necessary for the safety of the officers. When applying for the warrant, Lind did not
have any information that Tavares was known to use weapons, that he was armed or
carried a weapon, or that he had a history of violence toward law enforcement officers.
The only statement Lind could offer as to the dangerousness of the search was his bare
conclusion in the warrant application that unidentified suspects might be involved in
violent crimes. No evidence has been offered to support that allegation, however.
Therefore, we conclude that no exigency existed in this case to excuse the requirements
set forth in section 3109.

                                           C.

       Finally, we must determine if the officers relied in good faith on the provision in
the search warrant authorizing a no-knock entry into the Tavares home. See United
States v. Leon, 468 U.S. 897, 922-23 (1984) (establishing good faith exception to the
exclusionary rule in the Fourth Amendment context); United States v. Marts, 986 F.2d
1216, 1218-19 (8th Cir. 1993) (applying Leon in the section 3109 context). This
exception to the exclusionary rule requires that the officers executing the warrant
conduct themselves in an “objectively reasonable” manner and with “a reasonable
knowledge of what the law prohibits.” Marts, 986 F.2d at 1219 (internal quotations
omitted).

       The warrant in the case at bar contained a “no knock” provision, which stated
that the executing officers need not knock and announce their presence before entering
the Tavares home. In the application and supporting affidavit, Lind stated that the “no
knock” provision was necessary for two reasons--controlled substances are easily
disposed of, and unidentified suspects might be involved in violent crimes. However,
as stated above, there has been no evidence presented to support the presence of either
exigency.


                                           -9-
       The government argues that the officers’ and agents’ reliance on the warrant was
nevertheless reasonable in light of State v. Lien, 265 N.W.2d 833, 838-39 (Minn.
1978), which held there is no blanket exception to the knock and announce requirement
in drug cases, but that the requirement need not be satisfied if the “dwelling is being
used . . . as an outlet or warehouse for a drug business.” However, Lien’s exception
to the no-blanket-exception rule it announced is clearly overruled by Richards, 520
U.S. at 388, which held there is no blanket exception to the knock and announce
requirement in felony drug cases and endorsed no exception to the rule. As did the
officers in Marts, the officers in the instant case “clear[ly] violat[ed] . . . the knock and
announce rule, without the presence of exigent circumstances.” 986 F.2d at 1219.
Therefore, the executing officers do not benefit from Leon’s good faith exception, and
Tavares’s motion to suppress should have been granted by the district court.

                                            III.

       Tavares also argues that his Fourth Amendment rights were violated by the
officers’ failure to knock and announce their identity and purpose before forcing entry
into his home. Because we find that section 3109 requires the suppression of evidence
obtained from the search, we need not reach this constitutional issue.

                                      *      *      *

       Based on the foregoing, we reverse and remand to the district court with
directions that it vacate Tavares’s guilty plea, grant his motion to suppress evidence
obtained as a result of the unlawful search of his home, and conduct further proceedings
that may be appropriate.




                                            -10-
BEAM, Circuit Judge, dissenting.

      I respectfully suggest the court used the incorrect standard to determine if 18
U.S.C. § 3109 was violated. Accordingly, I dissent.

       I agree with the court that there must be “significant” federal involvement before
section 3109 is implicated. However, under our precedent, ignored by the court in this
case, that is not the end of the inquiry. This circuit requires us to look beyond the level
of involvement to determine if the state warrant is just a ruse to cloak a federal
investigation and circumvent the more stringent federal statutory requirements for a
warrant. See United States v. Moore, 956 F.2d 843, 847 n.3 (8th Cir. 1992); see also
United States v. McCain, 677 F.2d 657, 662-63 (8th Cir. 1982).

       As the court points out, a state officer sought the warrant and a state judge issued
it. The state officer in charge of the investigation contacted the DEA agent as a
courtesy to find out if the state search would interfere with an ongoing DEA
investigation. DEA agents met with the St. Paul police after the warrant had been
issued to determine if the DEA investigation would be affected. And, although federal
agents participated in executing the warrant, they took no part in planning the search.

       On the basis of this evidence, the district court found that there was no evidence
that indicated the state warrant was used to circumvent section 3109. We review this
finding for clear error. See United States v. Johnson, 171 F.3d 601, 603 (8th Cir.
1999). This district court's finding was not clearly erroneous and, therefore, the
evidence should not be suppressed under section 3109.

      I dissent.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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