Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Jesus Akiyama Aldan, Defendant/Appellant
Commonwealth v. Aldan
Appeal No. 96-034; Criminal Action No. 95-0158
BEFORE: VILLAGOMEZ and ATALIG, Justices, and WISEMAN, Special Judge.
Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Jesus Akiyama Aldan, Defendant/Appellant.
Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Jesus Akiyama Aldan, Defendant/Appellant.
Appeal No. 96-034
Criminal Action No. 95-0158
December 4, 1997
Argued and Submitted on October 1, 1997
Counsel for Appellant: Steven P. Pixley, Saipan.
Counsel for Appellee: James L. Norcross, Assistant Attorney General, Saipan.
BEFORE: VILLAGOMEZ and ATALIG, Justices, and WISEMAN, Special Judge.
ATALIG, Justice:
¶1 Jesus Aldan ("Aldan") appeals his conviction for possession of methamphetamine hydrochloride ("ice") pursuant to 6 CMC § 2142(a) and the denial of his motion to suppress. In addition, Aldan appeals his five year sentence pursuant to 6 CMC § 2142(d)(4).
¶2 This Court has jurisdiction pursuant to title 1, § 3102(a) of the Commonwealth Code. We reverse.
ISSUES PRESENTED AND STANDARDS OF REVIEW
¶3 Appellant raises five issues on appeal; however, two of the issues are dispositive to this case.
1. Whether the Superior Court erred in holding that the laws of the Commonwealth sometimes do not require law enforcement agents to knock and announce before conducting a search of homes. This is a constitutional question which we review de novo. Office of the Attorney Gen. v. Rivera, 3 N.M.I. 436, 441 (1993).
2. Whether the Superior Court erred in finding that there were sufficient exigent circumstances to support the issuance of a "no-knock" search warrant in this case. This is a mixed question of law and fact which we review de novo. Rosario v. Quan, 3 N.M.I. 269, 276 (1992).
FACTS AND PROCEDURAL BACKGROUND
¶4 On July 20, 1995, Police Detective Roque K. Camacho ("Detective Camacho") executed an Affidavit in Support of a No-Knock Search Warrant. In the affidavit, Detective Camacho stated:
1. Within the last twelve (12) hours, he had conducted a controlled purchase of a substance later confirmed as ice from Aldan at his residence in Garapan using a confidential reliable informant;
2. In November 1994, a Search Warrant had been executed at the residence of Aldan in Garapan and marijuana and ice residue were confiscated.
3. In the past Aldan had stated that the Police would not find anything because he would destroy or get rid of the evidence.
Based on this information, a "no-knock" search warrant was issued for Aldan's residence in Garapan.
¶5 At approximately 6:30 a.m. on July 20, 1995, nine armed police officers from the Department of Public Safety entered Aldan's residence without knocking or announcing their presence pursuant to the no-knock search warrant. Aldan was found sleeping in his bedroom. The search yielded approximately .74 grams of ice and a loaded .22 caliber rifle. The rifle had been previously registered by Aldan with the Department of Public Safety but the license had expired in April 1995.
¶6 On January 31, 1996, Aldan filed a motion to suppress the rifle and the ice contending that the "noknoclc" search warrant was unlawful. He also requested a "Franks hearing" to challenge the truthfulness of the statements made in the affidavit by Detective Camacho. The Superior Court denied both requests.
¶7 Aldan was convicted of illegal possession of a controlled substance. Following the trial, at the June 27, 1996, hearing, the Superior Court found that the .22 caliber rifle required the imposition of the enhanced penalty provision of 6 CMC § 2142(d)(4) since it was an "illegal firearm" under the statute. Pursuant to this subsection, the court sentenced Aldan to five years imprisomnent not subject to suspension, probation, or parole. Aldan timely appealed.
ANALYSIS
¶8 Article I, §3 of the Commonwealth Constitution provides the "right of the people to be secure in their persons, houses, papers and belongings against unreasonable searches and seizure."
(a) No warrants shall be issued except upon probable cause supported by oath and affirmation and particularly describing the place to be searched and the persons or things to be seized.
N.M.I. Const, art. I, §3 (1994).
¶9 In addition to Article I, §3, the Commonwealth has a right of individual privacy which "shall not be infringed except upon a showing of compelling interest." N.M.I. Const, art. I, §10 (1986). Therefore, the right of the people of the Commonwealth to be free from unreasonable search and seizure is firmly grounded in the Commonwealth Constitution.
¶10 In addition, this Court in Commonwealth v. Bowie held that:
Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. The rule is designed to protect the physical integrity of the home.
3 N.M.I. 462,469 (1993)(citations omitted).
¶11 The requirement that law enforcement officers give notice prior to forcing entiy to execute a warrant serves three purposes: (1) to protect the occupants of the house and law enforcement officers from violence; (2) to protect individual privacy rights; and (3) to protect against the needless destruction of private property. United States v. Little, 753 F.2d 1420, 1435 (9th Cir. 1984).
I. The laws of the Commonwealth do not authorize a "no-knock" search warrant
A. Rule 41(c) of the Criminal Riles of Procedure
¶12 Commonwealth Rules of Criminal Procedure 41(c) provides the mechanisms for the issuance of a search warrant.
The warrant shall be directed to a policeman. It shall command the police officer to search, within a specified period of time not to exceed ten (10) days, the person, or place named for the property or person specified. The warrant shall be served in the daytime unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate the judge to whom it shall be returned.
Com. R. Civ. P. 41(c)(1).
¶13 The only reference to the execution of the search warrant is the time of day it should be executed - during the daytime. The rule is silent as to "no-knock" search warrants. Therefore, while Com. R. Civ. P. 41 (c) provides the procedure for the issuance of search warrants, 6 CMC § 6203 dictates how search warrants should be executed when the place is a building or a ship.
B. 6 CMC §6203
¶14 The statutory basis for the execution of a search warrant in a building or a ship is governed by 6 CMC § 6203 which states in part:
If a building or ship or any part thereof is designated as the place to be searched, the police officer executing the warrant may enter without demanding permission if the officer finds the building or ship open. If the building or ship be closed, the officer shall first demand entrance in a loud voice and state he or she desires to execute a search warrant. If the doors, gates, or other bars to the entrance be not immediately opened, the officer may force an entrance, by breaking them if necessary . Whenever practicable these demands and statements shall be made in a language generally understood in the locality.
6 CMC § 6203 (emphasis added).
¶15 The language of the statute is clear. It mandates that an officer shall knock, announce his presence, and wait prior to serving the search warrant. Therefore, since there is no statutory authority to issue "no-knock" search warrants in the Commonwealth, the trial judge did not have the authority to issue a no-knock search warrant.
II. There were insufficient exigent circumstances to force entry without knocking in this case
¶16 Courts interpreting the Fourth Amendment to the United States Constitution have allowed "no knock" searches based upon a showing of exigent circumstances. Exigent circumstances exist when there is a threat of physical violence or where police officers have reason to believe that evidence would likely be destroyed if advance notice were given. Courts determine exigency by looking at the circumstances of each case rather than creating a blanket rule. Rechards [n. 5 above], 520 U.S. at 394, 117 S.Ct. at 1421.
¶17 A police officer's reasonable belief that announcement might place him or others in physical peril constitutes exigent circumstances. United States v. Turner, 926 F.2d 883, 886 (9th Cir. 1991).
¶18 In this case, nine heavily armed police officers simultaneously crashed through two doors of Aldan's home at 6:30 in the morning to execute the search warrant. Aldan was sleeping when the police entered his bedroom. While a rifle was found in the premises, there were no allegations in the affidavit in support of the application for a search warrant that the police officers knew Aldan had a gun or that he used a gun to facilitate his alleged drug offense or crime.
¶19 The possibility of destruction of evidence exists in every narcotics investigation. United States v. Moreno, 701 F.2d 815, 818 (9th Cir. 1983) (citations omitted). In order to justify forced entry without an announcement, there must be some evidence to support the suspicion that contraband will be destroyed. Id. In United States v. Fluker, the court suggested that such evidence might consist of "sounds of running feet or other suspicious activity" or "knowledge that the search was expected." 543 F.2d 709, 717 (9th Cir. 1976).
¶20 In this case, any attempt to escape by Aldan would have been futile considering the presence of nine armed police officers and the fact that Aldan had been roused from his sleep by the officers' intrusion. There was no suggestion that the search was expected. Therefore, the mere allegation that Aldan stated in the past that he would destroy evidence, without any corroborating facts, and without more specific inferences of exigency, did not justify the officers' failure to comply with 6 CMC § 6203.
CONCLUSION
¶21 For the reasons set forth above, we hereby REVERSE the judgment of the Superior Court.
Appellant's other issues before this Court include:
3. Whether the Superior Court erred in concluding that the .22 caliber rifle found in Aldan's residence was an "illegal fireman" pursuant to 6 CMC § 2142(d)(4);
4. Whether the Superior Court erred in ruling that 6 CMC § 2142(d)(4) requires the court to impose a five-year sentence, not subject to suspension, probation, or parole; and
5. Whether the Superior Court's interpretation of 6 CMC § 2142(d)(4) results in manifest injustice constituting reversible error.
A criminal defendant is entitled to a hearing and should be given the opportunity to attack the search warrant if it is obtained using intentional or reckless false statements in the affidavit. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674. 57 L. Ed. 2d 667(1978).
Article I, § 3 is the mirror image of the Fourth Amendment to the United States Constitution.
See United States v. Ramirez, 91 F.3d. 1297, 1300 (9th Cir. 1996); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990).
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997); Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed. 2d 976 (1995); Ker v. California, 374 U.S. 23, 47, 83 S. Ct. 1623, 1636, 10 L. Ed. 2d 726 (1963).
Wilson, 514 U.S. at 936, 115 S. Ct. at 1919; Richards, 520 U.S. at 391, 117 S.Ct. at 1420.
See Ramirez, supra, 91 F.3d at 1301; United States v. Becker, 23 F.2d 1537, 1540-41 (9th Cir. 1994): United States v. McShane, 462 F.2d 5, 6 (9th Cir. 1972).
Although we are not addressing the issue of whether the Superior Court erred in ruling that 6 CMC § 2142(d)(4) requires the court to impose a five-year sentence, not subject to suspension, probation, or parole, we agree with the analysis of the dissent on this issue.