                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                ______________

                                  No. 00-3631
                                ______________


United States of America             *
                                     *
            Appellant,               *
                                     *
      v.                             *      Appeal from the United States
                                     *      District Court for the
James Ray Mendoza                    *      District of Minnesota
                                     *
                                     *
            Appellee.                *

                                ______________

                            Submitted: May 18, 2001
                            Filed: February 21, 2002 (corrected 2/28/02)
                                ______________

Before MORRIS SHEPPARD ARNOLD and BYE, Circuit Judges, and GAITAN,1
District Judge.


GAITAN, District Judge


       This case presents the issues of whether a resident of a duplex possesses a
legitimate privacy interest in the common entry vestibule, and whether law

      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
enforcement agents, who possess a warrant and announce their presence and purpose,
must knock when the door to the dwelling has been removed from its hinges.
Appellant, the United States, appeals from the District Court ruling which suppressed
the evidence retrieved from James Mendoza’s home on the grounds that the search
was unreasonable.


        Several days prior to June 5, 2000, the Minneapolis Police Department received
a tip from a confidential reliable informant that Mendoza possessed a pound of heroin
at his home, the lower unit, 1021 19th Avenue Northeast, Minneapolis, Minnesota.
Mendoza apparently showed the heroin to the informant when he took a pad-locked
duffle bag from under his bed and opened it to reveal the drugs. Officers checked
with the utility company and learned that the utilities to the lower unit of the duplex
were in Mendoza’s name. In addition, the officers obtained a photograph of Mendoza
from prior arrests and showed it to the informant, who confirmed Mendoza was the
individual in possession of the heroin. The officers sought and obtained a warrant
based upon the tip.


       Mendoza’s residence is a multifamily dwelling (a “duplex”) with an upper and
lower unit. There is one single main door located on the right front of the home. The
door has peep hole, small knocker and a lock, which was not latched at the time of
entry. To the left of the door there are two mailboxes. The warrant indicated in three
places that the dwelling contained two residences, a lower and an upper unit, and that
Mendoza was located in the lower unit.


       On June 5, 2000, at around 6:30 p.m., approximately six to eight police officers
arrived at Mendoza’s home. The officers were wearing raid gear which consisted of
vests and jackets with “Police” on the front. An adult and Mendoza’s son, who was
thirteen, and his son’s friend, fourteen, among others, were talking in the front yard.
The officers approached the house and were shouting “Police!”, as were the
individuals in the yard.

                                          -2-
       The officers entered the common door into an open vestibule while shouting
“Police!” Upon entering the vestibule the officers saw Mendoza’s doorway to the left
and stairs directly in front of them, which led to the upper unit. Mendoza’s paramour,
Ms. Brandon, resided in the upper unit. Mendoza’s door was off the hinges
completely and the apartment was open to the vestibule. The officers then shouted
“Police! Warrant!” and entered Mendoza’s residence where they conducted a
protective sweep throughout the unit. They found Mendoza repairing the bathroom
and brought him to the living room.


       Mendoza was charged by indictment on June 20, 2000. The original two-count
indictment alleged the defendant possessed methamphetamine and heroin with the
intent to distribute, in violation of 21 U.S.C. § 841. A superseding indictment was
filed by the United States on September 7, 2000 to conform to the charges of the
Supreme Court decision Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). This two-count indictment alleged that Mendoza possessed
methamphetamine in excess of 50 grams with the intent to distribute 100 grams of
heroin, both in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).


       On August 11, 2000, Mendoza moved the court for an order suppressing the
evidence obtained in the search and seizure of the his home. After a hearing, the
United States Magistrate Judge, Jonathan Lebedoff, issued a report and
recommendation that advised the suppression of the evidence seized as a result of the
search of defendant’s apartment. The report and recommendation concluded that the
officers should have knocked on the front door of the duplex and that once the
officers entered the common vestibule area and found the door off the hinges, they
should have knocked a second time on the lower unit’s door frame. The District
Court adopted the findings of the report and recommendation and ordered the
suppression of the evidence.




                                         -3-
I.    Discussion


       The Fourth Amendment to the United States Constitution protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. When examining if a
search is reasonable, courts consider “all the circumstances of the particular
governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1,
19, 88 S.Ct. 1868, 20 L.Ed 889 (1968). Here, Mendoza asserts two bases for
suppressing the evidence adduced as a result of the search: (1) that the government
violated his Fourth Amendment rights when they entered the main door of the duplex
without knocking; and (2) the officers, once inside the duplex vestibule, should have
knocked on the door jamb before entering his front door.


      A.     The First Door


        Mendoza maintains he had a constitutionally protected interest of privacy in
the first door, which opened into the duplex vestibule. He asserts, moreover, this door
was his front door and that the vestibule constituted his “home” for purposes of
Fourth Amendment analysis. Accordingly, he reasons, the officers should have
knocked on that door and announced their presence and purpose there, instead of
entering that door and approaching the interior doorway.


       The threshold inquiry is whether Mendoza had a legitimate expectation of
privacy in the common area entryway of the duplex, which would have required the
officers to knock and announce their presence. “[T]he person challenging the search
has the burden of showing both a subjective expectation of privacy and that the
expectation is objectively reasonable; that is, one that society is willing to accept.”
United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999); accord Minnesota v.
Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing the
reasonable expectation of privacy in a dwelling for an overnight guest); Rakas v.

                                          -4-
Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Several factors
have been identified as relevant to this showing: “whether the party has a possessory
interest in the things seized or the place searched; whether the party can exclude
others from that place; whether the party took precautions to maintain the privacy;
and whether the party had a key to the premises.” Id. (citations omitted).


       In applying this test, we have repeatedly held that tenants of multifamily
dwellings have no legitimate expectation of privacy in common or shared areas. See
McCaster, 193 F.3d 930 (defendant did not have a legitimate expectation of privacy
in a duplex hallway’s closet); United States v. McGrane, 746 F.2d 632 (8th Cir. 1999)
(no legitimate expectation of privacy in a basement storage locker in a multifamily
dwelling, to which other residents had access); United States v. Eisler, 657 F.2d 814
(8th Cir. 1977) (no legitimate expectation of privacy in a conversation that took place
in an apartment building hallway). Mendoza urges this case is distinguishable from
our prior decisions because he shared the duplex with “his children, girlfriend and her
children.” Specifically, he contends “the occupants of the duplex treated the upper
unit, the lower unit, and the vestibule as communal space.” In finding that Mendoza
had a legitimate expectation of privacy, the District Court focused only upon his
subjective expectation and not whether that expectation was objectively reasonable.
To amount to a protectable expectation of privacy, however, the expectation must be
tested for reasonableness.


       The factors applied to examine if a subjective expectation is objectively
reasonable relate to both property interests, and whether the individual claiming the
right took measures to protect those interests. In the instant case, Mendoza did
nothing that would lead the officers to believe he had a protectable interest in the
common area of his duplex. He made no efforts to secure the outer door. Moreover,
because the door was not latched and there remained two mailboxes to its left, there
was no signal to the officers that knocking on the outer door would have been




                                          -5-
necessary.2 As for any property interest in the common entry door and vestibule,
Mendoza had none which would mandate protection. For example, it is doubtful the
landlord would have allowed Mendoza to sublet the vestibule. It is also unlikely that
Mendoza could have excluded individuals from Ms. Brandon’s unit. The only support
he provides that he had an interest in the upper unit is that his young daughter ran up
to it, and that his door was off its hinges. It was the District Court that surmised the
missing door was to facilitate free movement, and that extrapolation creates more
questions than answers. What if Ms. Brandon grew tired of Mendoza, could she have
excluded him from her unit? What if a delivery person wanted to take a package to
Ms. Brandon’s door–could Mendoza have barred his entry? What about Ms.
Brandon’s door–was it completely off the hinges–did she want to facilitate free
movement? What may be even more disconcerting, however, is Mendoza’s
contradiction within his brief. After asserting in his statement of facts that “the door
to the lower portion of the duplex was off the hinges due to repairs . . .,” he defends
his subjective belief of one unified living space by representing that the door was off
its hinges to facilitate free movement, thus adding a tint of disingenuousness to his
argument.


      B.     The Second Door


       We must now examine whether the officers were required to knock before
entering Mendoza’s unit, even though there was no door. The common law
requirement that police officers knock and announce their presence before entering
a dwelling, plays a part in Fourth Amendment reasonableness determinations. Wilson
v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed. 967 (1995); see also Miller v.
United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed. 1332 (1958) (the

      2
       If the Court were to be persuaded by Mendoza’s subjective expectation
argument, it would mean that not only would the officers have been able to search
Mendoza’s unit, but they also would have been able to search Ms. Brandon’s
residence. We are not prepared to waive Ms. Brandon’s rights on account of her
boyfriend’s subjective belief.
                                          -6-
common law principle of “knock and announce” is “embedded in Anglo-American
law”).3 There are exceptions to the knock and announce rule where police “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." Id. at 643 (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct.
1416, 137 L.Ed.2d 615 (1997), and United States v. Weeks, 160 F.3d 1210, 1213 (8th
Cir. 1998)). Here, the government has not charged that any exigent circumstances
existed, nor has it argued that knocking would have been dangerous or would have
lead to the destruction of evidence. This leaves the futility exception.


       Although this Court has not squarely addressed the issue of whether knocking
is required when the door is open, or in this case, where there is no door, most circuits
courts deciding the issue have concluded when the door is open, the rule is vitiated.
See United States v. Johns, 466 F.2d 1364 (5th Cir. 1972) (FBI agents, wearing “FBI”
armbands, were not required to knock or announce upon entry of an open door when
they witnessed an individual emerge from the door, turn around and go back in the
building where they suspected illegal gambling); United States v. Lopez, 475 F.2d
537 (7th Cir.), cert. denied, 414 U.S. 839 (1973) (Federal Agents entry into the open


      3
        Section 3109, “the knock and announce” statute governs when there is
“significant federal involvement” and 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
             execution of the warrant.

18 U.S.C. § 3109; Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20
L.Ed.2d 828 (1968); see United States v. Murphy, 69 F.3d 237, 242 (8th Cir. 1995).
This statute codifies the common law rule. Therefore, cases construing § 3109 are
relevant to our analysis, even though only state officers executed the warrant.
                                           -7-
door of a motel room after probable cause was established and as defendants opened
the door to leave, did not require knocking) United States v. Vargas, 436 F.2d 1280
(9th Cir. 1971) (“the thrust of § 3109 . . . is aimed at the closed or locked door.”);
United States v. Remigio, 767 F.2d 730 (10th Cir. 1985) (finding no violation of the
knock and announce rule when officers enter an open door); United States v.
Valenzuela, 596 F.2d 1361 (9th Cir. 1979) (same).


       In making the determination of whether the Fourth Amendment has been
violated by a failure to knock and announce, we must remember reasonableness is our
polestar. Underlying the knock and announce requirement is notice, and here, the
officers announced their presence and were conspicuously dressed in police riot gear.
Further, the inhabitants who were outside were shouting “Police!” Given the twin
auditory function of announcing (“Police! Warrant!”) and knocking (“Bang-bang-
bang”) it belies common sense to think officers should be forced to comply with
formalistic rules when the circumstances direct otherwise. See Richards v.
Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed. 615 (1997) (“the flexible
requirement of reasonableness should not be read to mandate a rigid rule of
announcement that ignores countervailing law enforcement interests.”) (internal
quotations and citations omitted). In fact, it is difficult to imagine a case where
knocking could be more futile than the one at hand—where the door was not just
open, but off its hinges.


       In United States v. Moreno, 217 F.3d 592 (8th Cir. 2000) we looked at the
purposes of the knock and announce rule which include: 1) the potential for violence;
2) preventing unnecessary destruction of private property; and 3) showing respect for
the individual’s privacy interests. Id. at 594 (citing United States v. Kemp, 12 F.3d
1140 (D.C. Cir. 1994)). When the officers entered Mendoza’s they were acting
consistently with these policies. Because they announced their presence and stated
their purpose, the potential for violence was diminished. In addition, there was no
door to break down, and as such, there was no unnecessary destruction of private
property. Finally, the officers made a pre-entry announcement, thus giving Mendoza

                                         -8-
notice of their presence. In short, the underlying reasons for the knock and announce
rule were met, and the entry was reasonable.


         Accordingly, for the foregoing reasons, we reverse the judgment of the District
Court.


MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.


      I concur in all of the court's opinion except the reasoning in Part I. A., and I
concur in the result reached in that part for the reasons that follow.


       When the police officers arrived at Mr. Mendoza's house, they had received
certain information that it was being used as a duplex, they knew that there was
separate utility service for each of its two floors, and they observed that there were
two mailboxes attached to it. In those circumstances, the officers were entitled to
believe that a common, public area lay behind the front door of the house in which
Mr. Mendoza lived and thus that they did not need to knock or request permission
before entering it.


       I therefore suggest that a determination of what the actual living arrangements
were inside the house is not necessary to a decision in this case. It is a familiar
general principle that the fourth amendment is not violated when officers act on what
they reasonably believe to be the facts, if the facts that they reasonably believe would
have rendered their action constitutional had the facts been true. For instance, the
Supreme Court held in an analogous situation that the "Constitution is no more
violated when officers enter without a warrant because they reasonably (though
erroneously) believe that the person who has consented to their entry is a resident of
the premises, than it is violated when they enter without a warrant because they
reasonably (though erroneously) believe they are in pursuit of a violent felon who is


                                           -9-
about to escape." Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). The same
principle serves to validate the officers' entry into the residence in this case: They
had evidence that supported a reasonable belief that a common, public area lay behind
the front door of Mr. Mendoza's house, and thus the officers were justified in
believing that they could enter that door without knocking or without permission
from the occupants of that house. See also Maryland v. Garrison, 480 U.S. 79, 86-89
(1987); Brinegar v. United States, 338 U.S. 160, 176 (1949).


      I therefore concur in the judgment in this case.


BYE, Circuit Judge, dissenting.


       I am disturbed our Fourth Amendment jurisprudence allows us to find the
execution of this search warrant constitutionally permissible. The reasonableness of
a search or seizure is "measured in objective terms by examining the totality of the
circumstances." Ohio v. Robinette, 519 U.S. 33, 39 (1996). When I examine the
totality of the circumstances in this case, I see little reason in the officers' conduct.
Despite the warrant's knock and announce limitation, it is apparent the officers simply
executed this warrant as a no-knock drug raid.


       Six to eight officers executed the warrant to search Mendoza's home. Despite
the lack of facts that would have allowed the officers to obtain a no-knock warrant,
all the officers wore raid gear, and at least some wore masks. In their rush on
Mendoza's home, the officers somehow bloodied the nose of one of his children, who
was playing outside. Once inside the home, the officers forced Mendoza's eleven-
year-old daughter to the floor at gun point and handcuffed her. The officers found
Mendoza inside performing home repairs, still unaware of a police presence in his
home. Mendoza testified an officer told him to "freeze, mother fucker, or I'll blow
your fucking head off." The officers then placed Mendoza in handcuffs. All this


                                          -10-
occurred before the officers had searched the residence, or had found contraband in
the home.


       The officers concede no exigent circumstances arose during the execution of
the warrant. Yet the officers admit they immediately passed through two doorways
after merely announcing their presence. In so doing, they wholly ignored a necessary
component of the common law knock and announce rule, which requires officers to
wait a reasonable time for an occupant to allow or refuse entry. See Garza v. State,
619 N.W.2d 573, 576 (Minn. Ct. App. 2000), rev'd on other grounds, 632 N.W.2d
633 (Minn. 2001); see also United States v. Gamble, 198 F.3d 672, 673 (8th Cir.
1999).


      The "purpose of the knock-and-announce rule is to prevent the unnecessary
destruction of property and mistaken entry into the wrong premises, protect against
unnecessary shock and embarrassment and decrease the potential for a violent
response when a search is executed." Garza v. State, 632 N.W.2d 633, 639 (Minn.
2001). I fail to see how the purpose of the knock and announce rule was served by
the manner in which police executed this warrant.


      The lead opinion excuses the officers' failure to comply with the knock and
announce rule at the first door by concluding Mendoza's expectation of privacy in the
vestibule behind the first door was not objectively reasonable. The concurring
opinion concludes the officers had a reasonable belief that a common, public area lay
behind the first door. I disagree with both conclusions.




                                        -11-
I.    The Lead Opinion


      We have, on several occasions, addressed whether a person has an objectively
reasonable expectation of privacy in the common area of a multiple-unit dwelling.
See United States v. McCaster, 193 F.3d 930 (8th Cir. 1999) (involving a hall closet
shared with the other tenant of a duplex); United States v. McGrane, 746 F.2d 632
(8th Cir. 1984) (involving a storage locker in the basement of a four-unit apartment
building); United States v. Luschen, 614 F.2d 1164 (8th Cir. 1980) (involving the
second floor landing in a multiple-unit security building); United States v. Eisler, 567
F.2d 814 (8th Cir. 1977) (involving a hallway in a multiple-unit apartment building).




        I do not find any of these cases particularly helpful in analyzing the present
dispute. None involved a violation of the knock and announce principle, and none
involved a duplex where both occupants with access to the common area had the
same interest in having intruders announce their presence before entering. Instead,
I find persuasive two cases addressing facts more analogous to those found here, both
of which found violations of the knock and announce principle.


       United States v. Fluker, 543 F.2d 709 (9th Cir. 1976), involved a single-family
home with two basement apartments. An outside stairway led to the basement. At
the bottom of the stairway, a door (usually locked) opened to a small entry. Inside the
small entry, two doorways opened to the basement apartments. The officers had a
search warrant for one apartment, occupied by Willard Young. The officers entered
the outer door without announcement, and once inside the small entry, encountered
a partially open door to Young's apartment. The officers immediately entered the
apartment with announcement, but without allowing the occupant a chance to allow
or deny entry. Id. at 712.




                                          -12-
       After careful consideration, the Ninth Circuit concluded Young had an
objectively reasonable expectation of privacy in the common entryway. First, the
court noted the building contained only two apartments, and the occupants of the two
apartments were the only persons with access to the small entry. "[T]he two lower-
level tenants thus exercised considerably more control over access to that portion of
the building than would be true in a multi-unit complex, and hence could reasonably
be said to have a greater reasonable expectation of privacy than would be true of
occupants of large apartment buildings." Id. at 716. Likewise, Mendoza's home
contained just two units, occupied by Mendoza and his girlfriend. They were the only
persons with access to the common vestibule. The district court found Mendoza's
"duplex was regarded by the occupants as one house shared by two families, and the
vestibule approximated a foyer of a single home." Appellant's Add. A-9.


       Second, the Ninth Circuit noted the door to Young's apartment was "actually
within reach" of the outer doorway: "Thus, a knock on the outer door might well have
been audible in Young's apartment, and would not have been a useless gesture."
Fluker, 543 F.2d at 716. Similarly, the doorway to Mendoza's unit was very close to
the outer door. A knock on the outer door would likely have been audible to someone
in the lower unit. This fact should have been known to the officers before entering
the outer door. The house is very narrow. When approaching the home, the officers
would have observed a window to the lower level unit just a few feet to the left of the
outer door, indicating the inside door was even closer. See Appellee's App. 2.


       Finally, the Ninth Circuit noted the inner door to Young's apartment was
partially open when the officers broke down the outer door, "thus indicating that
Young felt some degree of safety and privacy because of the existence of the outer,
locked doorway." Fluker, 543 F.2d at 716. Similarly, Mendoza's inner door was not
just partially open, but he had entirely removed the door from its hinges. This fact
clearly supports Mendoza's subjective expectation of privacy in the vestibule, since
the outer door served as the only barrier between his living quarters and the rest of
the world. When coupled with the fact that the only other occupant of the duplex was

                                         -13-
his girlfriend, Mendoza's subjective expectation of privacy is one society would
accept as objectively reasonable.


      In United States v. Drummond, 98 F. Supp. 2d 44 (D.D.C. 2000), the court
addressed a dispute involving a duplex almost identical to the one involved here:


      The apartment is in a small, residential, two-story dwelling containing
      only two apartments--the defendants' first-floor apartment and an
      apartment upstairs. The outer door to the dwelling is opaque, with no
      windows allowing visitors to see into the space behind it. Two utility
      meters are mounted to the left of the outer door. There appears to be a
      mailbox directly to the right of the outer door. The outer door is hinged
      on the left. It opens into a small entryway landing at the base of the
      narrow staircase leading to the upstairs apartment. The landing's width
      barely exceeds that of the narrow staircase, and its depth is less than its
      width. The inner door to apartment one is immediately to the right of the
      landing.

Id. at 46 (internal references to the record deleted).


       In Drummond, the police entered the outer door without announcement, and
found the first-floor apartment's inner door partially open. The officers then
announced themselves, but immediately entered the apartment without giving the
occupants a chance to allow or deny entry. Id. The court concluded, in a thorough
and well-reasoned opinion, that the apartment occupants "had a legitimate expectation
of privacy in the entryway behind the outer door," id. at 49, and held the officers
violated the knock and announce rule at the outer door. See id. at 53. In rejecting the
government's argument that knocking at the outer door placed an undue burden on
law enforcement, the court said




                                          -14-
       [t]his opinion does not support the general proposition that police are
       required to knock at the outer door to any apartment complex. It
       recognizes that greater police diligence may be required where the
       police can reasonably be expected to know that there is a very small
       number of units within a residential building, where they are unclear
       how many other residents are living in the building, and where they are
       unclear whether the public has access to the area in the building behind
       the entrance door.

       Where there are sufficient indicia that the inhabitants could have a
       reasonable expectation of privacy in the entryway directly behind the
       outer door, the police then have at least two options. They can knock
       and announce their presence at the outer door, or they can seek
       additional information about the building to determine if the entryway
       is open to the public in such a way as would defeat a reasonable
       resident's expectation that uninvited and unauthorized persons will not
       intrude into it.

       ...

       In other search and seizure contexts, courts routinely charge law
       enforcement with the responsibility of obtaining enough information to
       act in a reasonable fashion.

Id. at 51 (internal citations and quotations omitted).


      The facts in this case are similar to those in Drummond. From the outside, the
home appears to be a single-family home, not a duplex. The only two tenants of the
duplex were boyfriend and girlfriend, and thus they shared a common interest in
excluding the public from the common vestibule. The main door had a latch,4 which

       4
        The lead opinion concludes Mendoza did nothing to lead the officers to believe he had a
privacy interest in the vestibule because "the door was not latched." The lead opinion is
inconsistent with the facts found by the district court, which indicated "it is unclear whether the
latch was secured." Appellant's Add. A-3. Moreover, since some of Mendoza's children were
playing outside, I do not see how a failure to latch the door bears on the question of the objective

                                                -15-
allowed both Mendoza and his girlfriend to control access to the vestibule. In
addition, the outer door had a knocker and a peephole, both objective signals that all
those within viewed the common vestibule as a private space.


       Unlike our case, the upper apartment in Drummond was vacant, so only the
tenants of the first-floor apartment had access to the small entryway behind the outer
door. Id. at 46. But in Drummond, the police had a confidential informant (CI) who
told police the front door to the first-floor apartment was sometimes left open. The
police did not bother to determine whether the duplex had other residents. Id. at 46-
47. Similarly, here the officers had a CI, and could have inquired about the duplex's
other residents, the close relationship between the occupants of the lower and upper
units, and the status of Mendoza's inner door.


      In sum, under the facts and circumstances present in this case, I believe the
defendant's subjective expectation of privacy in the vestibule was objectively
reasonable.


II.    The Concurring Opinion


       Instead of focusing upon whether the defendant's subjective expectation of
privacy in the vestibule was objectively reasonable, the concurring opinion concludes
the officers were reasonable in believing a common, public area lay behind the front
door. Although this argument has more force than the lead opinion, I still disagree.
The facts known to the officers before entering the first door, coupled with the
situation they encountered after entering the first door, should have led an objectively
reasonable officer to conclude the vestibule was a part of the defendant's home.




reasonableness of Mendoza's expectation of privacy in the vestibule area.

                                              -16-
       The concurring opinion cites Maryland v. Garrison, 480 U.S. 79 (1980), which
upheld a search warrant authorizing the search of the single apartment on the third
floor of a building, even though the building actually contained two third-floor
apartments. The officers uncovered illegal contraband after searching the wrong
apartment without realizing their mistake. Id. at 80. The Supreme Court held the
officers' execution of the warrant was reasonable because "the objective facts
available to the officers at the time suggested no distinction between [the two
apartments]." Id. at 88.


       In Garrison, however, the Supreme Court also stated the officers "were required
to discontinue the search of respondent's apartment as soon as they discovered that
there were two separate units on the third floor and therefore were put on notice of
the risk that they might be in a unit erroneously included within the terms of the
warrant." Id. at 87; see also Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir.
1995) (citing Garrison and holding the Fourth Amendment requires officers "to
retreat as soon as they knew or reasonably should have known that there was a
mistake" in executing a warrant); Turner v. Sheriff of Marion County, 94 F. Supp. 2d
966, 983 (S.D. Ind. 2000) ("Even if the initial entry into a residence results from an
objectively reasonable mistake, the Fourth Amendment requires officers to retreat as
soon as they discover or reasonably should discover their mistake").


       When the officers arrived at Mendoza's home, they knew the home was being
used as a duplex, and there were two mailboxes beside the front door. But they also
encountered an outer door with a latch, a knocker, and a peephole. A knocker is a
clear signal the occupants of the dwelling expected outsiders to knock at that door,
not enter. In fact, other than a sign on the door which says "Knock, Do Not Enter,"
I cannot think of a more reasonably objective way to convey the message. In
addition, the presence of a peephole clearly indicated the occupants wanted to see
who was at the first door before allowing anyone to enter. Finally, the latch
indicated the occupants of both units could bar entry to what lay behind the first door.


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       After the officers entered the first door, they saw Mendoza had entirely
removed the inner door from its hinges. This left the first door as the only barrier
between the lower unit and the world at large. It is objectively unreasonable to
believe a person will completely remove the only barrier separating his home from
a common, public area. In addition, the officers saw a seven-year-old child run from
within the lower unit, through the vestibule, and up the stairs to the upper unit.
Reasonable police officers would have known of their mistake under these
circumstances, and realized they were already in Mendoza's home after entering the
first door. Under Garrison, the officers were constitutionally required to retreat at
that point.


       Because I believe the officers violated the Fourth Amendment at the first door,
I find it unnecessary to address whether the knock and announce rule applies to the
second, open doorway. I respectfully dissent.




      A true copy.

             Attest:

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




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