                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      July 18, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-3370
v.                                                  (District of K ansas)
                                                (D.C. No. 04-CR-40122-JAR)
JOHN HENRY BROW N, JR.,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, HOL LOW AY, and M cKAY, Circuit Judges.


I. Introduction

      A one-count indictment charged John Henry Brown, Jr. with possession of

a firearm after conviction for a misdemeanor crime of domestic violence in

violation of 18 U.S.C. § 922(g)(9). Police officers seized the weapon while

executing a search warrant which explicitly authorized them to enter Brow n’s

residence without knocking or announcing their presence. Brown moved to




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
suppress the firearm under the exclusionary rule, claiming the no-knock search

violated the Fourth Amendment’s prohibition against unreasonable searches and

seizures. The United States District Court for the District of Kansas denied the

motion. Brown entered a conditional guilty plea, which permitted appeal of the

district court’s denial of his motion to suppress. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291. The Supreme Court recently held knock-and-

announce violations do not justify application of the exclusionary rule. Hudson v.

M ichigan, No. 04-1360, 2006 W L 1640577, at *9 (U.S. June 15, 2006). W e

therefore affirm the district court’s denial of Brown’s motion to suppress.

II. Background

      Police detective Todd G odfrey submitted to a Kansas state court an

affidavit for a warrant to search for cocaine and associated paraphernalia at

Brown’s residence in Junction City, Kansas. In his affidavit, Godfrey averred a

confidential informant (“CI”) purchased cocaine from Brown during a “controlled

buy.” The CI advised police that Brown kept cocaine in small sandwich bag

corners on his person or in his bedroom, which was adjacent to a bathroom.

Under the circumstances, Godfrey noted, it would be easy for Brown to dispose of

the drugs if he was given advance notice of law enforcement’s intent to search his

residence. Godfrey therefore requested permission for police officers to enter

Brown’s residence without first announcing their presence.




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      Based on Godfrey’s affidavit, the court issued a search warrant for Brow n’s

home. The warrant authorized police officers to enter Brown’s residence without

first knocking or announcing their presence. The Junction City Tactical Response

Team executed the warrant on M ay 14, 2004. W ithout announcing their presence,

the team used a battering ram to gain entry to Brown’s residence. Upon searching

the residence, officers found, inter alia, a shotgun under the bed in Brow n’s

bedroom.

      Prosecutors charged Brown with possession of a firearm after conviction of

a misdemeanor crime of domestic violence, a violation of 18 U.S.C. § 922(g)(9).

Brown moved to suppress the weapon, arguing the no-knock search warrant and

the Tactical Response Team’s no-knock entry violated the Fourth Amendment’s

prohibition on unreasonable searches and seizures. The district court denied

Brown’s motion. The court held that, under the circumstances, a no-knock

warrant was justified to prevent destruction of evidence because the affidavit

indicated Brow n kept illegal drugs in small packages on his person or near a

bathroom, where they could be easily destroyed. Brown entered a conditional

guilty plea, preserving his right to appeal the district court’s denial of his motion

to suppress. The district court sentenced Brown to two years’ incarceration and

two years’ supervised release. Brown appeals the district court’s denial of his

motion to suppress.




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III. Analysis

      Generally, “law enforcement officers must announce their presence and

provide residents an opportunity to open the door” before executing a search

warrant. Hudson, 2006 W L 1640577, at *3. The “knock-and-announce” rule is

both an ancient common-law principle and an element of the reasonableness

inquiry under the Fourth Amendment. Id.; see Wilson v. Arkansas, 514 U.S. 927,

934 (1995). The rule, however, is subject to certain exceptions. For instance,

police officers need not knock and announce “when circumstances present a threat

of physical violence, or if there is reason to believe that evidence would likely be

destroyed if advance notice were given, or if knocking and announcing would be

futile.” Hudson, 2006 W L 1640577, at *3 (quotations, citation, and alteration

omitted).

      Brow n argues the Tactical Response Team’s failure to knock before

entering his apartment constitutes a violation of the Fourth A mendment because

the circumstances did not justify an exemption from the knock and announce rule.

He claims the appropriate remedy for such a violation is application of the

exclusionary rule and suppression of all evidence seized during the search of his

residence. Although law enforcement officials relied on a court-issued warrant

when they executed their no-knock search of his residence, Brown argues the

“good faith” exception to the exclusionary rule, established in United States v.

Leon, 468 U.S. 897, 920–22 (1984), does not apply.

                                         -4-
      After the parties submitted briefing and presented oral argument in this

case, the Supreme Court issued Hudson v. M ichigan, which announced the

exclusionary rule is not an appropriate remedy for violations of the knock-and-

announce requirement. 2006 W L 1640577, at *6. In Hudson, the Court noted

“[s]uppression of evidence . . . has always been our last resort, not our first

impulse.” Id. at *4. It explained that application of the exclusionary rule to

knock-and-announce violations would result in great costs, such as the release of

dangerous criminals into society and the potential for a flood of no-knock claims

by criminal defendants. Id. at *7. It also noted availability of the exclusionary

rule as a remedy to knock-and-announce violations might cause police officers to

wait too long before executing a search, resulting in “preventable violence against

officers in some cases, and the destruction of evidence in many others.” Id.

Hudson concluded application of the exclusionary rule to knock-and-announce

violations would have little practical benefit. Id. at *7–*8. M oreover, it observed

victims of knock-and-announce violations have an adequate remedy in civil

litigation, such as suits under 42 U.S.C. § 1983. Id. at *8–*9. In sum, the C ourt

concluded the costs of applying the exclusionary rule to knock-and-announce

violations greatly outweigh the benefits, and held knock-and-announce violations

cannot justify suppression of evidence under the exclusionary rule. Id.*9.




                                          -5-
      Because Hudson precludes application of the exclusionary rule to knock-

and-announce violations, the district court was correct in denying Brown’s motion

to suppress. Given the Court’s ruling in Hudson, it is unnecessary for this court

to determine whether, under the circumstances presented in this case, law

enforcement’s fear of evidence destruction justified an exemption from the knock-

and-announce rule. Discussion of the Leon “good faith” exception to the

exclusionary rule is similarly unnecessary.

IV. Conclusion

      For the foregoing reasons, we affirm the district court’s denial of Brow n’s

motion to suppress. W e vacate those portions of the district court’s order which

discuss whether law enforcement’s “no-knock” search of Brown’s residence

constituted a violation of the Fourth Amendment and whether application of the

Leon good faith exception was warranted under the circumstances of this case.

W e set aside these portions of the district court’s order solely to avoid

complicated issues of res judicata that otherwise might result if Brown chooses to

bring a civil action in the future. Cf. Allen v. McCurry, 449 U.S. 90, 103–04

(1980) (noting, in certain circumstances, state-court judgments or decisions can




                                          -6-
have binding effect in later federal civil litigation brought pursuant to 42 U.S.C. §

1983). In doing so, we neither express disapproval of the district court’s analysis

of these issues, nor encourage Brown to file civil litigation.



                                        ENTERED FOR THE COURT



                                        M ichael R. M urphy
                                        Circuit Judge




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