Robert Andrew Cantu was sentenced to twelve years imprisonment after pleading guilty to a charge of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. He appeals the district court's order denying his motion to suppress evidence discovered pursuant to a search of his home. The sole issue before this court is whether the district court erred in denying Mr. Cantu's motion to suppress evidence obtained after the officers failed to announce their presence and purpose when attempting forcible entry of Mr. Cantu's home.
On July 1, 1998, at approximately 1:00 a.m., a seven-person team of officers with the Calhoun County Sheriff's Office executed a warrant to search Defendant's mobile home in Port Lavaca, Texas. The officers obtained the warrant pursuant to information from a confidential source who indicated that defendant Robert Cantu was selling cocaine and that the drugs were located at the defendant's residence. The officers did not have any specific reason to believe that the occupants of the Cantu residence were armed or posed any other substantial physical threat.
Operating under a "breach and announce" policy, which governed all forced entry cases undertaken by the Calhoun County Sheriff's Office, the seven officers donned ski masks, approached Defendant's front door, and tried to pry it open without first announcing their presence. Why the officers donned ski masks defies the imagination. If the idea was to conceal their identity, apparently the fact that such concealment would be blown by announcing who they were did not penetrate their consciousness.
The initial attempt to enter the home proved unsuccessful because the walls of the mobile home were too flimsy to support the leverage needed to pry the door open. After the failed initial attempt, the officers announced, "Sheriff's Office, search warrant!" Two officers testified that they detected movement within the mobile home, but were unable to point to anything else that would indicate that evidence was being destroyed. The officers continued to try to gain entry using the crowbar. At no time during this period did any of the occupants of the mobile home open the door. Both the Defendant and the Defendant's wife testified that they were asleep at the time of the raid, but awoke when they heard what sounded like a fight or someone trying to break into their home. Approximately forty-five seconds after they announced their presence, one of the officers broke the door's window and unlocked the door from the inside. Defendant moved to suppress the cocaine, LSD, and marijuana seized from the residence alleging that it was the result of an unreasonable search and seizure.
When the district court makes factual findings following a pretrial hearing on a motion to suppress, this court reviews such findings for clear error, assessing the evidence in the light most favorable to the party that prevailed in the district court. See United States v. Jones, 133 F.3d 358, 360 (5th Cir.), cert. denied, 523 U.S. 1144 (1998). Legal conclusions are reviewed de novo. See United States v. Cardenas, 9 F.3d 1139, 1146 (5th Cir. 1993). Therefore, the district court's determination that the search of Mr. Cantu's home was reasonable under the Fourth Amendment is reviewed de novo. See United States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993).
The Fourth Amendment assures that " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .." U.S. Const. amend. IV. The Fourth Amendment embodies the common law principle that police officers should knock and announce their presence before they enter a private home. See Richards v. Wisconsin, 520 U.S. 385, 387 (1997) (citing Wilson v. Arkansas, 514 U.S. 927 (1995)). However, the knock-and-announce rule is not required when law enforcement concerns outweigh personal privacy interests. See Wilson, 514 U.S. at 934. The Supreme Court has left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment." Id.
18 U.S.C. § 3109. Basing its decision on a literal reading of the federal statute, this court held in United States v. Fike that the knock-and-announce rule does not apply unless law enforcement officers actually break open an outer or inner door or window of a house to gain entry. See United States v. Fikes, 82 F.3d 1315, 1324 (5th Cir. 1996) (citing United States v. Grier, 866 F.2d 908, 934-35 (7th Cir. 1989)). Under this rule, law enforcement officers are not required to announce their presence unless they subsequently break into a house or they find exigent circumstances that would make announcing their presence "dangerous or futile, or . . . would inhibit the effective investigation of the crime." Richards, 520 U.S. at 394.
While "§ 3109 codifies the exceptions to the common-law announcement requirement, . . . and the common law in turn informs the Fourth Amendment, [the Supreme Court's] decisions in Wilson and Richards serve as guideposts in construing the statute." United States v. Ramirez, 523 U.S. 65, 73 (1998). In Richards, the Court held that "the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards, 520 U.S. at 387 (citing Wilson v. Arkansas, 514 U.S. 927 (1995)) (emphasis added). In construing the scope and application of § 3109, the Court in Richards and Wilson considered the common-law rule requiring officers to announce their presence before attempting forcible entry to outweigh the suggestive language in § 3109, which implies that officers must actually break into the home for the rule to apply. See id.
Our conclusion is bolstered by the underlying rationale for the common-law knock-and-announce rule. Generally, the rule serves several fundamental interests including "(1) protecting law enforcement officers and household occupants from potential violence; (2) preventing the unnecessary destruction of private property; and (3) protecting people from unnecessary intrusion into their private activities." United States v. Sagaribay, 982 F.2d 906, 909 (5th Cir. 1993). In Wilson, the Supreme Court explained that the rule "was justified in part by the belief that announcement generally would avoid 'the destruction or breaking of any house . . . by which great damage and inconvenience might ensue [.]'" 514 U.S. at 935-36 (quotingSemayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K.B. 1603)). The rule is also intended to protect against intrusions occasioned by law enforcement officers' mistakes. See Ker v. California, 374 U.S. 23, 57 (1963) (noting that the knock-and-announce rule is also based on such practical considerations as the possibility that police may be misinformed as to the name or address of the suspect) (Brennan, J., dissenting).
By limiting the requirement that police should knock and announce their presence and intentions only in situations where they actually break into a house undermines the interests protected by the knock-and-announce rule. First, allowing the police to attempt entry into a home before announcing their presence heightens the possibility that the occupants of a house will react violently against the unknown aggressor, particularly if they resemble highwaymen in ski masks. Second, permitting the police to attempt an unannounced forcible entry subverts the interest in protecting private property. Finally, attempting entry without warning precludes the officers' ability to recognize possible mistakes in identity or location of the suspect or the place to be searched.
Therefore, our previous analysis in Fike no longer serves as the basis for assessing attempted forcible entries under the knock-and-announce rule. Rather, the reasonableness test outlined by the Supreme Court in Richards applies with equal force to attempts at forcible entry as it does to the actual breaking and entering of a person's home. See also United States v. Gable, 401 F.2d 765, 766 (3rd Cir. 1968) (holding that insertion of a crowbar into the door of a suspects house by officers before they announced their presence constitutes an unreasonable search); United States v. McCloud, 127 F.3d 1284, 1289 n.2 (10th Cir. 1997) (concluding that the reference point for the reasonableness determination begins prior to the officers' initial attempt to gain entry); Kornegay v. Cottingham, 120 F.3d 392, 396 (3rd Cir. 1997) (maintaining that law enforcement officers are required to announce their presence before attempting forcible entry); United States v. Markling, 7 F.3d 1309, 1318 (7th Cir. 1993) (concluding that officers must announce their presence and wait for a brief period before attempting entry).
In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous and futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard--as opposed to a probable-cause requirement--strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.
Richards, 520 U.S. at 394. The Court rejected blanket rules allowing "no-knock" entries based on over-generalizations about today's drug culture or other "general categor [ies] of criminal behavior." Id. at 392. Instead, officers must at least articulate some reasonable suspicion that "knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation." Ramirez, 523 U.S. at 71; United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992).See also United States v. Rodriguez, 663 F. Supp. 585, 588 (D.D.C. 1987) ("In every case in which the courts have invoked the exigent circumstances exception, the police have testified that they had some specific and immediately ascertainable reason for fearing the loss of the desired evidence").
In light of these principles, it is clear that the search of Mr. Cantu's residence was unreasonable under Fourth Amendment analysis. The officers approached Mr. Cantu's home in the middle of the night and immediately began prying open his door. The officers had no prior knowledge that Mr. Cantu or the occupants of his residence were armed or posed immediate danger. When the officers approached the mobile home, Mr. Cantu, his wife, and two children were asleep inside. The only movement in the home that could rise to the level of any suspicion that evidence was being destroyed occurred after the officers' first attempt to gain entry.1 Furthermore, the fact that the officers wore ski masks to execute the warrant reinforces the fact that the officers wanted to conceal their identity. Such law enforcement practices are clearly unacceptable. Therefore, without any articulation of reasonable suspicion that announcing their presence would be dangerous, futile, or would result in destruction of evidence, the officers' initial attempt to forcibly enter Mr. Cantu's home was unreasonable. Accordingly, we reverse the district court's order denying his motion to suppress and remand for further proceedings consistent with this opinion.
I concur in the judgment reversing the district court's order denying Cantu's motion to suppress. Unlike the majority, however, I do not see the issue as whether the knock and announce rule applies equally to forcible entry attempts as to the actual breaking open of the door or window. Instead, I accept what all parties concede -- that the Fourth Amendment was violated when the raid party attempted to force its way into Cantu's home without first announcing its presence. The question that we have to answer is whether events during the forty-five second delay between this violation and the subsequent entry means that the evidence seized was arrived at by means sufficiently distinguishable from the initial illegality to be purged of its primary taint. Because the lawless conduct of the police officers was not too attenuated from the discovery of evidence, I agree that the evidence must be suppressed.
As an initial matter, this court must review the problematic execution of the Calhoun County Sheriff's Office raid on the Cantu residence. On June 30, 1999, law enforcement officers secured a valid search warrant for Cantu's mobile home. This warrant was based on information obtained from an informant who alleged that Cantu sold cocaine out of his home. The officers had no information that Cantu was armed, dangerous or likely to destroy evidence. Pursuant to the search warrant, a team of more than seven law enforcement officers went to Cantu's mobile home to execute this warrant.
Testimony at the suppression hearing revealed that these officers, dressed in battle dress uniform, including combat helmets, goggles, bullet-proof vests and skimasks, surrounded Cantu's home at 1:00 a.m. Following their standard procedure in executing narcotics search warrants,1 they attempted to open the outward-swinging door of Cantu's mobile home using a large pry bar called a "haligan tool." Officer Daigle admitted that he forcefully stuck the steel bar into the doorframe, attempting to pry the door away from the molding. At this time, there had been no announcement of the officers' purpose, presence, or authority. Daigle further testified that the entire mobile home was shaking as a result of his efforts to wrest open the door.
Only after this initial breach did the officers announce their presence and purpose. The officers identified that they were from the Sheriff's Office and that they were at the residence pursuant to a search warrant. Despite Daigle's ongoing attempts, the door to the mobile home remained closed.
Like the panel majority, I accept the district court's finding that approximately forty-five seconds elapsed between the initial breach of the doorframe and the officers' eventual entry. From the officers' testimony, it appears Daigle continuously worked the pry bar in an effort to remove the door.2 During this time officers were shouting that they were law enforcement officers with a search warrant.3 As a result of the commotion, Robert Cantu's father, Ray Cantu emerged from the adjoining house to ask the officers what was happening. The officers ordered him back inside his home. The officers also testified that sometime after the initial blow to the doorframe they heard a movement in the bedroom area of the mobile home. They testified that, following this movement, they heard footsteps moving at a fast pace past their position at the door. Unable to open the door using the haligan tool, Daigle knocked out a window in the door and reached in to unlock the door. Once the door was unlocked, the officers entered the mobile home, secured Cantu, his wife, and two young children at gunpoint and read him his Miranda rights. Cantu readily told the officers the location of the drugs, and he was arrested.
The Fourth Amendment requirement that law enforcement officers executing a search warrant knock, identify themselves, and announce their purpose was violated the instant Officer Daigle breached the doorframe without first announcing his authority or presence.4 See Wilson v. Arkansas, 514 U.S. 927, 931 (1995). As there were no exigent circumstances, and the law enforcement officers were acting under what the government admits was an unconstitutionalpolicy of always breaching private homes before announcing their presence when executing narcotics search warrants, the actions of the officers were unreasonable under our Fourth Amendment analysis. See id. at 930 (" [W]e hold that th [e] common-law 'knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment."); United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998). Thus, the central freedom protected by the Fourth Amendment to be free from unreasonable searches and seizures was violated by the actions of the Calhoun County Sheriff's Office. See Richards v. Wisconsin, 520 U.S. 385, 387 (1997); Wilson 514 U.S. at 934 ("Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.").
The "no-knock" policy adopted by the Sheriff's Office runs counter to the holding of Richards, as it provides no particularized "reasonable suspicion that knocking and announcing. . . would be dangerous or futile, or that it would inhibit the effective investigation of the crime, by, for example, allowing the destruction of evidence." 520 U.S. at 394. The government and the lower court agree that such a categorical policy is unconstitutional and that the Sheriff's Office in this case lacked any particularized reasonable suspicion. Following Richards, I find such a "blanket exception" to the knock and announce requirement overbroad and that the execution of this policy violated Cantu's Fourth Amendment rights. See id. at 395.
A. The District Court Erred in Analyzing "Cure"
The district court held that the evidence obtained after this failure to knock and announce was cured of its unconstitutional taint. The court provided two alternative justifications for this cure as the bases for its denial of the suppression motion. First, the court found that if the officers' "attempt" was not a constitutional violation, then the forty-five seconds that elapsed after the violation and before the entry rendered the subsequent discovery "reasonable" under the Fourth Amendment. Second, the court found that the "movement" heard in the mobile home during the raid provided an exigent circumstance that justified the officers' forcible entry. In contrast to the panel opinion, I find these "attenuation"5 questions to be the dispositive issues before this court, but, on the facts presented, conclude that the district court erred in its determination.
As the panel is in agreement that there was a constitutional violation from the officers' attempt at entry, the predicate for the district court's reasonableness argument falls away. The district court held that "if the attempt is never significant, the forty-five second period between announcement and actual entry is plainly reasonable under Jones." See United States v. Jones, 133 F.3d 358, 361-62 (5th Cir. 1998) (holding that after properly knocking and announcing officers need only wait fifteen to twenty seconds before entering). In other words, if there was no constitutional violation, the Jones holding should control. As we are bound by Richards, which makes "attempts" constitutionally significant, this argument is inapposite. See note 4, supra.
The government, nevertheless, relies on Jones to argue that the fact that forty-five seconds elapsed is enough to cure the initial violation. This argument, however, misapplies our holding in Jones. The question before this court in Jones was whether after knocking and announcing their presence, officers who waited for a period of fifteen to twenty seconds acted reasonably under the Fourth Amendment reasonableness test. See 133 F.3d at 361 ("The question of whether or not the officers in this case should have knocked and announced their presence and purpose is of no consequence, as it is conceded that they did just that. Indeed, Jones admits that the officers knocked and announced their presence, but he argues that they did not wait a reasonable length of time before entering."). Unlike the case before us, in Jones, there was no initial illegality and therefore no "attenuation" or "cure" question presented to the court. Our holding in Jones was that it was reasonable, under the facts presented, for the officers to enter fifteen to twenty seconds after knocking and announcing their presence. We did not hold that an unconstitutional violation of the knock and announce rule could be cured in fifteen to twenty seconds.
As to the second justification for its holding, the district court relied on United States v. Fike, 82 F.3d 1315, 1324 (5th Cir. 1996), overruled in part on other grounds by United States v. Brown, 161 F.3d 256 (5th Cir. 1998), to find that subsequent events could cure an initial failure to knock and announce. In Fike, law enforcement officers conducted a raid at the home of Eddie Franklin Douglas, one of twelve co-conspirators indicted in a drug conspiracy. The officers broke down a gate outside Douglas's house, attempted to pull off the burglar bars on the front door and then attempted to force that door open. Hearing the commotion, Douglas opened the kitchen door and was ordered at gunpoint to unlock the burglar bars on the door. The question before this court was whether this action comported with the requirements of 18 U.S.C. § 3109.6 The court found that because the kitchen door had been opened before the officers actually broke open a door or window, under a strict reading of § 3109, there was no violation of the statute. See 18 U.S.C. § 3109 (requiring "break [ing] open any outer or inner door or window"). As this case was decided before Richards, the court never addressed the Fourth Amendment reasonableness issue.
I disagree with the district court that Fike teaches the lesson in the Fourth Amendment context "that whatever violation an attempt amounts to may be cured by a later occurring event." First, this conclusion is unsupported by the Fike holding, which never reached this issue of cure, never undertook a Fourth Amendment analysis and never considered attenuation.
Second, as stated in note 4 supra, the district court's use of Fike also ignores that Richards has interpreted the knock and announce rule to cover "attempt [s]." See Richards, 520 U.S. at 387 (" [P]olice officers . . . must knock on the door and announce their identity and purpose before attempting entry."). Therefore, the district court's use of Fike has no direct application to the Fourth Amendment reasonableness analysis necessary for Cantu's case.
While Fike does not guide my analysis, I agree the question of attenuation raised by the district court is the dispositive question of the case.
"Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the the evidence was a product of the constitutional violation." United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (citing Brown v. Illinois, 422 U.S. 590, 597-603 (1975)).8 A failure to knock and announce, leading to an unconstitutional arrest and search, may, if not too attenuated, require suppression of evidence. See Sabbath v. United States, 391 U.S. 585, 586 (1968) (holding under § 3901 that because officers entered without knocking and announcing, the subsequent arrest was invalid and the evidence seized inadmissible).
In resolving attenuation questions, this court has adopted the multi-factor test set out in Brown v. Illinois to determine whether the fruit of an unconstitutional violation should be suppressed. 422 U.S. 590, 603-04 (1975). In Brown, the Supreme Court held that Miranda warnings did not cleanse the taint of a confession made pursuant to an unconstitutional arrest. See id., at 604-05.
Three factors have been distilled from Brown to evaluate the connection between the constitutional violation and the subsequent acquisition of evidence: (1) the temporal proximity of the illegal conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See id. at 603-04; United States v. Vega, 221 F.3d 789, 801-02 (5th Cir. 2000) (applying the test to find that consent did not purge the taint of an unlawful search); United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir. 1993) (applying the test to find coerced consent did not purge the taint of an unlawful stop); United States v. Miller, 608 F.2d 1089, 1102-03 (5th Cir. 1979) (applying the test to physical evidence).
Using the Brown factors, this court must analyze the two "curative" events -- the elapsing of forty-five seconds and the "movement" -- to determine if the failure to knock and announce demands the suppression of evidence.
Analyzing the first factor of "temporal proximity," I find that the forty-five seconds between the violation and the subsequent entry was not sufficiently attenuated to cure the unlawful action. Such a brief period of time standing alone is almostenough to vitiate any attenuation claim.9 See United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998) (finding that ninety second time period between illegal stop and search does not support government's attenuation argument); Chavez-Villarreal, 3 F.3d at 128 (finding that fifteen minute wait at border between stop and search not enough to dissipate taint); United States v. Tookes, 633 F.2d 712, 716 (5th Cir. Unit B 1980) (finding passage of "few minutes" after illegal arrest and discovery of firearm not enough to dissipate taint).
Further and more important, the forty-five second measure does not take into account that the assault on the door was continuous. Even, assuming arguendo, that an initial violation of the knock and announce requirement could be cured by forty-five seconds of peaceful police activity (i.e., lawfully announcing their authority and presence), the objectives of the knock and announce requirement are not served in the case of a continuous assault. See United States v. Sagaribay, 982 F.2d 906, 909 (5th Cir. 1993) (finding the knock and announce rule to serve several Fourth Amendment interests including (1) protection of law enforcement officers and household occupants from potential violence, (2) prevention of unnecessary destruction of private property, and (3) protection for people from unnecessary intrusion into their private activities). It is difficult, then, to accept the government's argument that time, alone, removed the taint of the constitutional violation in this situation.
The second factor under Brown is whether there were any "intervening circumstances" sufficient to break the causal chain thus dissipating the taint of the initial illegality. The district court relied on testimony that after the officers attempted to enter the mobile home, "movement" was heard inside the house. This movement, the court concluded, created an exigency that then justified the officers' entry.
"Exigent circumstances 'include those in which officers fear for their safety, where firearms are present, or where there is a risk of a criminal suspect's escaping or fear of destruction of evidence.'" United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). The burden is on the government to prove the existence of the exigency. See id. The government argues that the movements heard after they began the raid caused them to believe evidence was being destroyed. This argument fails on two fronts.
First, the exigency on which the government relies was almost certainly created by the unconstitutional act of forcibly striking Cantu's door without knocking and announcing. See United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1997) (" [T]he exigent circumstances exception does not apply if the Government created or 'manufactured' the exigency"); Rico, 51 F.3d at 502 ("Just as exigent circumstances are an exception to the warrant requirement, a police-manufactured exigency is an exception to an exception."); United States v. Richards, 994 F.2d 244, 247 (5th Cir. 1993) ("Exigent circumstances, however, do not pass Fourth Amendment muster if the officers deliberately create them."). The officers testified that the movement occurred only afterDaigle used the haligan tool on the door.10 The government, therefore, cannot meet its burden of demonstrating an exigency not of its own creation.
The district court analyzed the "movement" under an exigency test as opposed to the intervening circumstance test as required by Brown. My review of the record, however, shows little support to find an intervening circumstance significant enough to dissipate the taint of the entry.
The lack of an intervening circumstance is even stronger in a case like Cantu's in which the evidence found is physical evidence as opposed to a confession.13 See, e.g., Miller, 146 F.3d at 280 (finding no intervening circumstances where initial stop led directly to search and discovery of drugs in motor home); Tookes, 633 F.2d at 716 (finding no intervening circumstance in defendant being placed in back seat of police car and driven around the block before pistol was discovered); see also United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999) (formal arrest not an intervening circumstance sufficient to attenuate discovery of incriminating evidence); United States v. King, 990 F.2d 1552, 1564 (10th Cir. 1993) (abandonment of drugs not an intervening circumstance).
Under a Brown analysis the "movement" cannot be considered an intervening circumstance, because the officers had been trying to enter all along. This was a single continuous assault. Because the constitutional violation occurred before the movement, and the officers intended to enter with or without movement, far from being an "intervening circumstance," the movement seems irrelevant to the officers' actions. I, therefore, cannot accept that the "movement" in any way created an exigency that cured or interrupted the execution of this policy.
The final Brown factor for analysis is the purpose and flagrancy of the official misconduct. Here, the officers executed an admittedly unconstitutional policy that ignored the knock and announce requirements in contravention of the Fourth Amendment. The officers testified to having performed this breach then announce policy between fifteen to twenty other times. In each case they presumably failed to knock and announce their presence before entering the home. This practice meets the "quality of purposefulness" required by the Court in Brown. See 422 U.S. 590, 605 (1975); see also Miller, 146 F.3d at 280 (finding flagrant or purposeful action in stopping a suspect without probable cause); United States v. Causey, 818 F.2d 354, 361 (5th Cir. 1987) (finding illegal arrest "amounted to a flagrantly abusive violation of Fourth Amendment rights.").
"In the fourth amendment context, the 'single and distinct' purpose for the exclusionary rule is deterrence of police violations of th [e] constitutional protection against unreasonable searches and seizures." United States v. Brookins, 614 F.2d 1037, 1046-47 (5th Cir. 1980); see also United States v. Sheppard, 901 F.2d 1230, 1239 (5th Cir. 1990) (King, J., dissenting) (" [T]he exclusionary rule's primary function is deterrence."). In this case, where the failure to knock and announce was pursuant to a flagrant policy of disregarding the Fourth Amendment, I am compelled to agree with the panel majority that the district court's order denying Cantu's motion to suppress should be reversed.
We note that exigent circumstances created by the police will not justify an unannounced entry into a home. The movement inside Mr. Cantu's home could reasonably be attributed to the initial attempt to physically pry open the door to his mobile home. Such "manufactured exigent circumstances" do not form an adequate basis for dispensing with the announcement requirement, especially when the initial attempt itself is unreasonable. See United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995); United States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993); United States v. Hultgren, 713 F.2d 79, 88 (5th Cir. 1983).
The record of the suppression hearing revealed that the Calhoun County Sheriff's Office executed the same raiding procedure for all narcotics search warrants.
At the suppression hearing, Daigle testified that he hit the door three times with the haligan tool, "working the door" back and forth in an attempt to pry it open. Officer Musgrave testified that Daigle hit the door with the haligan tool at least four times. Officer Amador testified that he saw Daigle hit the door four to five times.
The testimony was that the officers shouted "Sheriff's Department. Search Warrant" five to ten times.
In this respect, I agree with the panel majority that the district court erred in holding that "an attempt at entry is never constitutionally significant." The Supreme Court has held: " [P]olice officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387 (1997) (emphasis added). The district court relied on United States v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled in part on other grounds by United States v. Brown, 161 F.3d 256 (5th Cir. 1998). As the majority correctly points out, however, Fike interpreted 18 U.S.C. § 3109, which (at least as construed in Fike) requires an actual "break [ing] open any outer or inner door or window." The "attempting" language in Richards mandates a different result in the instant case.
See Nardone v. United States, 308 U.S. 338, 341 (1939) (recognizing that unconstitutionally obtained evidence can "become so attenuated as to dissipate the taint").
The district court's reliance on another § 3109 case, United States v. Carter, 566 F.2d 1265, 1268-69 (5th Cir. 1978), is equally misplaced. In Carter, the federal DEA agent announced his presence as a law enforcement officer and performed a no-knock entry only when individuals outside and inside the premise ran away from him. In the instant case, entry and thus the violation occurred before any announcement of authority.
We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
371 U.S. 471, 487-88 (1963) (internal quotations omitted).
The attenuation exception, however, requires greater temporal distance than seconds or minutes. Supreme Court decisions since Wong Sun have generally found that hours must elapse before evidence is purged of its taint. Brown, 422 U.S. at 604 (statement separated from illegal arrest by less than two hours not attenuated); Dunaway [v. New York], 442 U.S. at 203, 218 (incriminating statements made within an hour of illegal arrest not sufficiently attenuated); Taylor v. Alabama, 457 U.S. 687 (1982) (confession six hours after illegal arrest not purged of taint of illegal arrest).
901 F.2d 1230, 1239 (5th Cir. 1990) (King, J., dissenting) (emphasis in original).
This movement, it must be remembered, was Cantu and his family being awakened at 1:00 a.m. by an unannounced police raid.
This is not to in any way judge the "motivation" of the individual police officers in the raiding party. See Rico, 51 F.3d at 502 ("Exigencies can be manufactured guilelessly or ulteriorly. Although [t]here is no question that the deliberate creation of urgent circumstances is unacceptable [,] . . . bad faith is not required to run afoul [of the Fourth Amendment]." (citations omitted) (alterations in original)).
Explicating its earlier attenuation holding in Wong Sun v. United States, 371 U.S. 471 (1963), the Brown Court contrasted two types of "intervening circumstances" that arose in that case. In Wong Sun, the initial arrest without probable cause of James Wah Toy led to the questioning and eventual discovery of narcotics in Johnny Yee's home. This discovery, in turn, led to the arrest of Wong Sun. After arraignment Wong Sun was released, but later voluntarily returned to give an incriminating statement to police. The Supreme Court held that this act of returning was an intervening circumstance, thus dissipating the taint of the original illegal arrest. However, the court also held that the discovery of physical evidence (narcotics) as a direct result of Toy's initial illegal arrest was not attenuated, and "did not result from an intervening independent act of free will," and thus "was not sufficiently an act of free will to purge the primary taint of the unlawful invasion." Brown, 422 U.S. at 598 (emphasis added) (quoting Wong Sun, 371 U.S. at 486).
[T]he exclusionary rule should be invoked with greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.


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Charles M. Kagay, Chief Appellate Counsel, Office of Independent Counsel, with whom Donald C. Smaltz, Independent Counsel, Joseph P. Guichet, Senior AssociateIndependent Counsel, and Wil Frentzen, Associate Independent Counsel, were on the briefs, argued the cause for appellant.
William H. Jeffress, Jr., with whom Joe R. Caldwell, Jr., Scott L. Nelson, Grant R. Vinik, and Woody Bassett were on the brief, argued the cause for appellee.
Before Edwards, Chief Judge, Henderson, Circuit Judge, and Buckley, Senior Circuit Judge.
In 1998, Archibald R. Schaffer III was convicted of attempting to influence the Secretary of Agriculture in violation of the Meat Inspection Act. The United States appeals the district court's decision to grant Schaffer a new trial based on "newly discovered evidence."Because we find that Schaffer was not diligent in his efforts to procure the evidence before his trial and that the evidence would not be likely to result in an acquittal upon retrial, we reverse.
The facts of this case are set forth in detail in our opinion reviewing the district court's grant of Archibald Schaffer's earlier post-trial motion for a judgment of acquittal. See United States v. Schaffer, 183 F.3d 833, 836-39, 847-50 (D.C. Cir. 1999). We present here only those facts that are relevant to this appeal.
In 1993, when Alphonso Michael Espy was serving as its Secretary, the Department of Agriculture ("USDA") was developing and implementing certain food safety initiatives related to meat and poultry that would have an impact on Tyson Foods International. See id. at 837, 849. On April 21, 1993, Don Tyson, Chairman of the Board of Directors of Tyson Foods, sent Secretary Espy both a printed invitation to a lavish birthday party he was hosting in Russellville, Arkansas over the weekend of May 14-16 and a handwritten note.The note advised the Secretary that he would also be invited to attend an Arkansas Poultry Federation ("APF") event during that same weekend and confirmed that a private plane would be available to fly him to and from Arkansas. See id. at 847. Five days later, the Senior Vice President of the APF signed a letter inviting Secretary Espy to address the APF on May 15 in Russellville. He sent the letter to Schaffer, who was Tyson Foods' Director of Media, Public and Governmental Affairs. Schaffer in turn mailed and faxed the letter to the Secretary. Schaffer also helped Secretary Espy's office coordinate some of the Secretary's weekend travel and accommodations. The Government presented evidence that, in making those arrangements, Schaffer mentioned only the APF meeting, ostensibly to conceal the fact that the Secretary and a woman companion planned to attend the Tyson birthday party.
On May 15, Secretary Espy flew to Russellville and spoke to a group of APF invitees. He attended the Tyson birthday party that evening, stayed with his companion at the Tyson Foods Management Training Complex, and returned with her to Washington the next day on a Tyson Foods corporate airplane. Schaffer subsequently caused the APF and not Tyson Foods to be reimbursed by the USDA for the cost of Secretary Espy's travel and lodging.
In January 1998, an independent counsel who had been appointed to investigate charges that had been made against Espy indicted Schaffer on several counts alleging violations of federal criminal statutes in connection with these and other events. Espy, who was by then facing charges under a separate indictment, did not testify at Schaffer's trial. In June 1998, the jury found Schaffer guilty under two counts:the first, for violating the Meat Inspection Act ("MIA"), 21 U.S.C. 622 (1994), by working to secure Espy's attendanceat the Tyson birthday party; and the second (which is not before us), for having provided Espy with unlawful gratuities in violation of 18 U.S.C. 201(c) (1994). Schaffer, 183 F.3d at 850.
After the jury's verdict, Schaffer moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, challenging the sufficiency of the evidence to sustain the convictions. The district court granted judgment of acquittal on both counts. The independent counsel appealed, and this court affirmed the judgment of acquittal on the gratuities count but reinstated the jury's verdict on the MIA count, holding that a reasonable juror could have found that Schaffer participated in securing Espy's attendance at the party with the intent to influence him with respect to specific policies of concern to Tyson Foods. Id. at 847-50.
While Schaffer's appeal was pending, a jury acquitted Espy on all charges. Following the final disposition of Schaffer's appeal and the conclusion of Espy's case, Schaffer filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. He argued, among other things, that Espy's testimony constituted "newly discovered" evidence because it had only become available at the conclusion of the Espy trial, which resulted in the expiration of Espy's Fifth Amendment privilege against self-incrimination. Because the district court agreed that Espy's testimony might constitute newly discovered evidence likely to produce an acquittal upon retrial, it held an evidentiary hearing to evaluate Espy's testimony. See United States v. Schaffer, Crim. Action No. 96-0314, Mem. at 4-5, reprinted in Joint Appendix ("J.A.") at 252-53.
At the hearing, Espy testified that he considered the APF appearance to be a legitimate event and that it was the primary reason for his trip to Arkansas. He stated that he attended the Tyson birthday party as a "courtesy" to Don Tyson and his son John, whom he had met on a few occasions.Espy asserted that he did not know Schaffer and that he had no knowledge of Schaffer's involvement in his visit to Arkansas that weekend. Finally, Espy testified that he did not recall any discussion with anyone from Tyson Foods at either the APF meeting or the birthday party that related to Tyson Foods or USDA policies; nor did he recall any attempt to influence him with respect to his duties as Secretary of Agriculture.
During the course of the hearing, Schaffer's counsel advised the court that, prior to Schaffer's trial, he had been told by Espy's counsel that Espy had declined Schaffer's request for an interview. Espy's counsel revealed enough of Espy's view of the relevant events, however, for Schaffer to know that he "very much want [ed Espy] as a witness." Tr. of Hearing on Motion for a New Trial at 24, reprinted in J.A. at 384. When Schaffer's counsel stated that he wanted Espy to testify in Schaffer's trial, "the answer was no, that [Espy] was not going to testify." Id. at 26, reprinted in J.A. at 386. In light of this exchange, Schaffer's counsel saw no point in subpoenaing Espy, "put [ting] him in here in a public courtroom ... and mak [ing] him take the Fifth." Id. Nor did his counsel move for a continuance until after Espy's trial or otherwise make the district court aware of his desire to have Espy testify. He explained that he did not feel he had a good faith basis for seeking a continuance in light of the certainty that Espy would appeal any conviction and remain unavailable as a witness for an indefinite period. See id. at 26-30, reprinted in J.A. at 386-90.
At the hearing's conclusion, the district court found Rule 33's requirements had been satisfied and granted Schaffer's motion for a new trial. The independent counsel timely filed this appeal, and we have jurisdiction pursuant to 18 U.S.C. 3731.
Fed. R. Crim. P. 33. Because Schaffer filed his motion approximately fifteen months after his conviction, the parties agree that the motion was timely only if Espy's testimony constituted "newly discovered evidence."
(1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must [have shown] diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) [the evidence] must be material to the issues involved; and (5) [be] of such nature that in a new trial it would probably produce an acquittal.
Id. at 653; see also United States v. Gloster, 185 F.3d 910, 914 (D.C. Cir. 1999) (same). A district court's grant of a new trial will be reversed "only if the court abused its discretion or misapplied the law." Gloster, 185 F.3d at 914 (internal quotation marks and citation omitted). We find that the district court abused its discretion in this case because Schaffer failed to satisfy Thompson's second and fifth requirements, namely, that a party seeking a new trial demonstrate diligence in procuring the evidence and that the evidence would be likely to produce an acquittal upon retrial.
What constitutes diligence in the pursuit of evidence depends entirely on the circumstances of the particular case. When, as here, a defendant believes that a particular person's testimony would be vital to his defense but either cannot locate the witness or believes it would be futile to subpoena him, the defendant has the obligation to seek a continuance of his trial or to explain to the trial court why the desired witness will not be produced. A defendant who fails to inform the court of his predicament will not satisfy Thompson's second prerequisite. See, e.g., United States v. Garland, 991 F.2d 328, 335 (6th Cir. 1993) (defendant who sought continuance after unsuccessful attempt to locate witness satisfied diligence requirement); United States v. Kamel, 965 F.2d 484, 493 (7th Cir. 1992) ("If there is possible evidence which would exonerate a defendant, he may not simply ignore it...."); United States v. Kulczyk, 931 F.2d 542, 549 (9th Cir. 1991) (counsel's failure to inform court before or during trial that he could not locate two witnesses "indicates a lack of due diligence"); United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980) (defendant who failed to seek continuance to locate witness was not diligent).
Schaffer repeats the argument made at the motion hearing that it would have been futile to subpoena Espy or seek a continuance. As suggested by the cases cited in the preceding paragraph, however, a belief in the futility of any such action will not satisfy the need for a concrete attempt either to compel the production of relevant evidence or to seek some accommodation from the trial court that would preserve the defendant's right to present evidence that was critical to his case. Whatever the minimum requirement of diligence, it cannot be a purely private evaluation of the availability of the testimony or the likelihood of relief from the court. Such a standard would seriously impair the important goal of finality that the diligence requirement serves. See UnitedStates v. Ugalde, 861 F.2d 802, 808 (5th Cir. 1988) (motion for new trial is subject to "an unusually stringent [five requirement] test ... [that] gives great weight to society's interest in the finality of criminal convictions").
21 U.S.C. 622. The prior appeal of Schaffer's MIA conviction centered on "whether the prosecution presented sufficient evidence for a reasonable jury to conclude that Schaffer acted with the requisite intent to influence any of the Secretary's duties under the Meat Inspection Act." Schaffer, 183 F.3d at 845 (emphasis added). As the prosecuting attorney emphasized in his closing argument to the jury, "this case is not ... about whether ... Secretary Espy was bought or could be bought. This is about the giver and what was in the giver's mind when the things given were given." Trial Tr. at 1702, reprinted in J.A. at 500.
As is evident from Espy's testimony during the evidentiary hearing on the motion for a new trial, his testimony at a new trial would do little to undermine the independent counsel's case. Espy testified that he believed that the APF function was a legitimate event, that his primary reason for traveling to Arkansas the weekend of the Tyson birthday party was to attend the APF function, and that he was aware of no attempt to influence his exercise of his official duties during the course of the weekend. Nothing in that testimony bears on Schaffer's intent in helping to arrange for Espy's attendance at these functions. The jury, for example, could fully accept Espy's statement that he believed the meeting was a legitimate event and still "reasonably infer that the [APF] meeting, while legitimate, had nevertheless been set up to provide Espy with official cover." Schaffer, 183 F.3d at 847.
Because we conclude that the district court erred in finding that Schaffer had satisfied Thompson's second and fifth requirements, we do not reach the question of whether Espy's newly available testimony may be considered to be "newly discovered" within the meaning of Rule 33. Although we have previously noted this circuit's "strong [ ] suggest [ion]" that "a non-party witness' post-trial offer to testify would fail to qualify as newly discovered evidence where the substance of the testimony was known to defendant at the time of trial," Gloster, 185 F.3d at 915, we leave for another day the question of the vitality of this court's earlier opinions in Di Giovanni v. Di Giovannantonio, 233 F.2d 26, 28-29 (D.C. Cir. 1956), and Amos v. United States, 218 F.2d 44, 44 (D.C. Cir. 1954), in which we granted new trials on the basis of "newly discovered" evidence that was known to exist but was unavailable to the defendant at the time of trial.
For the reasons given above, former Secretary Espy's newly available testimony is not a sufficient basis for granting Schaffer a new trial. Accordingly, we reverse the order granting a new trial, reinstate the jury's verdict on the Meat Inspection Act count, and remand the case to the district court for sentencing.

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1. Plaintiff contracted to furnish defendant a specified quantity of lumber, knowing that it was to be used by defendant in building boats but not that they were being built under a contract between the defendant and the Fleet Corporation. Afterwards, the Fleet Corporation, acting under Executive Orders and the Act of June 15, 1917, cancelled its contract, notifying defendant to make no further commitments or expenditures, and defendant, without acting or purporting to act under authority of the Corporation, stopped deliveries of lumber by the plaintiff.
(1) That the damages recoverable by the plaintiff from the defendant, were not measured as where "just compensation" is claimed from the United States under the statute for cancellation of the government's own contracts, but included anticipated profits. P. 275 U. S. 473.
(2) Plaintiff's rights under its own contract were not dependent on the continued existence of defendant's contract with the Fleet Corporation. P. 275 U. S. 474.
2. Appellate review in this case, where a jury was waived in writing, held limited to the sufficiency of the facts specially found to support the judgment and to rulings excepted to and presented by bill of exceptions. P. 474.
Certiorari, 273 U.S. 684, to a judgment of the circuit court of appeals which affirmed a judgment, 6 F.2d 471, not including anticipated profits, recovered by the petitioner in an action brought against McLouth and revived against his administrator.
Petitioner sued in the District Court for Eastern Michigan for the decedent's breach of contract to purchase a quantity of lumber. The defense relied on was that the lumber was to be used by the intestate in the performance of contracts he had made with the United States Shipping Board Emergency Fleet Corporation for the construction of a number of ocean-going tugboats; that, acting under the President's Executive Orders of July 11, 1917, and December 3, 1918, and the Emergency Shipping Fund provisions of the Urgent Deficiencies Appropriation Act of June 15, 1917, c. 29, 40 Stat. 182, 183, the Fleet Corporation, in 1919, before delivery of all the lumber, had cancelled the contract with decedent for building the tugs and directed him "to make no further commitments or expenditures;" and that this action or the decedent's subsequent order to petitioner to stop delivery of the lumber, or both, amounted to a cancellation of petitioner's contract also.
Corporation. It was found that petitioner's damage was $647.65, the difference between the contract price of the lumber ready for delivery when the decedent ordered performance stopped and its market price when recut into salable lengths, but that, if the ordinary rule of damages should be applied, petitioner's loss of bargain on the whole contract would bring its damages up to $42,789.96. The court gave judgment for the smaller amount, 6 F.2d 471, and this was affirmed by the Circuit Court of Appeals for the Sixth Circuit, 13 F.2d 581. This Court granted certiorari. 273 U.S. 684.
The Urgent Deficiencies Appropriation Act of 1917 authorized the President "(b) to modify, suspend, cancel, or requisition any existing or future contract for the building, production, or purchase of ships or material." Section 1. It provided that the United States "shall make just compensation" for any contracts cancelled or requisitioned, and authorized the President to delegate the powers conferred upon him. His powers, so far as material here, were delegated to the Fleet Corporation by Executive Orders of July 11, 1917, and December 3, 1918. The statute authorized the cancellation of the government's own contracts, made after its enactment, and just compensation for such cancellation does not include anticipated profits, ordinarily recoverable in an action of assumpsit. Duesenberg Motors Corp. v. United States, 260 U. S. 115; Russell Motor Car Co. v. United States, 261 U. S. 514. It authorized also the expropriation or requisition of private contracts, and, in computing the just compensation for these, the value of the anticipated performance of the contract may be considered. Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 265 U. S. 125.
the judgment for $647.65 in favor of petitioner. Although the suit was for breach of contract against a private person, and not against the government, the court purported to apply the rule of "just compensation," which, by the statute, is made the limit of the government's liability, and denied a recovery for anticipated profits on the supposed authority of Duesenberg Motors Corp. v. United States, supra.
The question principally argued here was whether there was power in the Fleet Corporation to cancel the petitioner's contract. No such question is presented by the record. There is no finding that in fact the petitioner's contract was either modified, suspended, cancelled, or requisitioned, nor does the record disclose evidence which would support such a finding. Since a jury was waived in writing, appellate review is limited to the sufficiency of the facts specially found to support the judgment and to rulings excepted to and presented by a bill of exceptions. R.S. §§ 649, 700; Lewellyn v. Electric Reduction Co., 275 U. S. 243 (November 21, 1927); Fleischmann Co. v. United States, 270 U. S. 349; Chicago Tyre & Springs Works Co. v. Spalding, 116 U. S. 541; Boogher v. Insurance Co., 106 U. S. 90. The special findings already stated establish the right of petitioner to recover damages for breach of contract, including compensation for loss of bargain, in the sum of $42,789.96.
As petitioner's contract was framed without reference to or knowledge of decedent's contract with the Fleet Corporation, its rights under its own contract were not dependent on the continued existence of the other. Guerini Stone Co. v. Carlin, 240 U. S. 264.
The judgments of the district court and of the circuit court of appeals are accordingly reversed and set aside, and the judgment of this Court will be for the petitioner in the amount stated, with costs.

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School Board of the Western Beaver Junior-Senior High School et al.
Van Dusen and James Rosen, Circuit Judges and Edward R. Becker, District Judge.
Edward R. BECKER, District Judge.
The School Board of the Western Beaver Junior-Senior High School (Board), like so many of its counterparts throughout the land, has promulgated a dress code which, inter alia, proscribes the wearing of hair covering the ears and below the collar line. James Robert Stull (James), a fifteen year old schoolboy, like so many of his peers, has adopted a hairstyle which offends the cited provisions of the code. As is shown by the record, including the testimony offered by plaintiffs and defendants in the District Court, James is neat and wellgroomed, and has been neither the subject nor object of disruptive incidents at the school. However, his refusal to respond to directives to comply with the code has set James and the Board upon a collision course which led to James' suspension from school and this Civil Rights Act (42 U.S.C. § 1983) lawsuit, alleging a violation of James' federally protected constitutional rights and seeking injunctive relief.1 Without making findings of fact, the District Judge dismissed, on the grounds that the paramount interest in prescribing rules and regulations for the maintenance of order and discipline in the public school system lay with the state, and that the review of such rules and regulations was a function of the state rather than the federal courts.2 This appeal followed.
This is the second time this Court has been called upon to join the continually burgeoning roster of federal courts which have been called upon to enter, in Judge Coffin's rather apt metaphor, the "thicket"3 of cases involving the confrontation between youth and the school administrators over male hairstyles. The first occasion was the case of Gere v. Stanley , 453 F.2d 205 (1971), where a student challenged a regulation similar to that now under attack.4 In September of 1969, a dress code, including a vaguely worded hair regulation, was promulgated by the Principal of the Blue Ridge High School in New Milford, Pa. for the new school year. It was promulgated at the request of faculty members who had complained "that style changes were causing disruptions and distractions in the classroom." Gere grew shoulder length hair and a goatee in clear violation of the rule and was the source of disruption at the school. Students refused to sit near him in the cafeteria because his hair was very dirty and on several occasions groups of students approached the principal about the unhealthy condition of his hair. Gere was suspended in March of 1970 and thereafter filed suit seeking to enjoin the enforcement of the regulation; he returned to class pending disposition of the case.
During the summer of 1970 a new code was adopted by the faculty, administrative staff and student council which contained a slightly different hair regulation. When Gere returned to school, he was suspended because his hair was in violation of the new code. He did not return, but filed a second suit challenging the new hair regulations. The district court consolidated the actions and held that even though the length of one's hair was a protected right under the Fourteenth Amendment, in view of the interference with the educational process the regulation was reasonable and necessary.
"Until such time as we are faced squarely with the underlying constitutional issue, i. e., whether a school board, without justifying the rule, may regulate the length of hair worn by male students, we feel that both logic and precedent require the application of the balancing test set forth in the text."
The record in this case requires that we squarely face the underlying constitutional issue. As of our latest count, we are the ninth of the circuit courts to do so.
We are not insensitive to the force of the proposition that it is more desirable that the matters here involved be left to the local authorities.10 On the other hand, there can be no doubt that the regulation under attack inhibits the student's personal liberty to fashion his own appearance and life style. The question does not present itself in a vacuum, but rather in the context of specific facts. Accordingly, we will first turn to an exegesis of the present record.
The ears shall not be covered.
Hair at the back of the head shall not fall below the top of the dress shirt collar.
Sideburns shall not extend below the bottom of the ear.
The top of the eyebrow shall be the lower limit for the forehead."
We have examined James' photograph. He is a clean-cut youngster, and his hair is neatly cut and combed. The record establishes that he washes and combs out his hair about twice a week. His hair, however, does extend below the collar line and over his ears. Accordingly, James is in violation of the code which was drafted in the spring and summer of 1970 by a committee composed of the principal, members of the faculty and student representatives, and was adopted by the Board prior to the commencement of the school year.
At the beginning of the school term, James was requested to cut his hair to conform to the code. With the consent of his parents, he refused, was then suspended but readmitted two days later after compliance. James asserts that at various times thereafter he was "harassed" by the principal, Michael Arbutina, and various teachers because of his long hair. This suit was then filed on October 20, 1970.
At the District Court's final hearing, the Board offered testimony to justify the hair code. The then principal, Arbutina, testified that as a result of his experience in education, he felt that such regulations were "helpful to maintain a proper academic atmosphere." He conceded, however, that there were no disciplinary problems at Western Beaver caused by students with long hair. In fact, there is no evidence at all in the record that James' hair ever caused any disturbances or disruptions in the educational process at Western Beaver, or that James was subject to abuse or violence or was himself a disciplinary problem. Neither were there any complaints about his cleanliness or tidiness. It was conceded at the argument that his appearance was scrubbed and neat and pleasant indeed. Moreover, and most significant in light of the Gere opinion, there is no evidence in the record of any problems which preceded and thereby precipitated the adoption of the code.
Joseph Kadalik, Vice-President of the Board, testified that the hair code was adopted because it was "conducive to good education." The only specific justification he could give was that long hair constituted a safety hazard in shop classes. There was also testimony from two shop teachers on the point. Jacques La Perriere, the metal shop instructor, testified that he felt that long hair was a hazard, since there was a danger of it being caught in moving parts of machinery. He also felt that particular hazards were created by the welding equipment when used by a person with long hair. He noted that clear vision was critical and that hair in the eyes would create a dangerous condition; also, he noted the dangerous conditions caused by the large number of sparks which might burn exposed hair. La Perriere testified that James had been in his class and that he had paid special attention to him due to his feeling that his long hair presented a safety hazard. Mr. Rowe, the wood shop instructor, testified that he had advised the committee which drafted the dress code that long hair would be a hazard in his shop.
On cross examination, La Perriere conceded that he had never requested James to tie his hair up or take other precautions for his personal safety. Both instructors (La Perriere and Rowe) conceded that they did not attempt to keep long haired males out of their classes. It was also developed that the shop courses were elective and that females were permitted to take specially designed shop courses. The District Court, however, made no attempt to evaluate the testimony; more specifically, it made no findings as to credibility of the contention that long hair constitutes a safety hazard in the shops, or, as to whether any regulation of long hair in shop courses would be reasonable in light thereof.
"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: 'The right to one's person may be said to be a right of complete immunity; to be let alone.'" Union Pacific Railway Co. v. Botsford , 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734 (1891).
"Nevertheless, a state's invasion into the personal rights and liberty of an individual, of whatever age or description, should present a justiciable issue worthy of federal review. There is little doubt that this regulation seeks to restrict a young person's personal liberty to mold his own lifestyle through his personal appearance. To say that the issue is not 'substantial' turns a deaf ear to the basic values of individual privacy and the freedom to caricature one's own image. Our institutions do not rely on submerging individual personality in order to create an 'idealized' citizen. Cf. Meyer v. Nebraska , 262 U.S. 390, 401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). . ."
"Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State."
Eschewing two grounds often cited in other cases in support of this type of claim,13 James has settled upon the assertions that his rights are founded upon the due process clause of the Fourteenth Amendment, and upon the Ninth Amendment (although the Ninth Amendment claim was not stressed on this appeal, it is pleaded in the complaint). There are circuit court cases supporting both theories, and it is fitting that we review them before enunciating our own view.
"The idea that there are substantive rights protected by the 'liberty' assurance of the Due Process Clause is almost too well established to require discussion. Many of the cases have involved rights expressly guaranteed by one or more of the first eight Amendments. But it is clear that the enumeration of certain rights in the Bill of Rights has not been construed by the Court to preclude the existence of other substantive rights implicit in the 'liberty' assurance of the Due Process Clause. . . .
We do not say that the governance of the length and style of one's hair is necessarily so fundamental as those substantive rights already found implicit in the 'liberty' assurance of the Due Process Clause, requiring a 'compelling' showing by the state before it may be impaired. Yet 'liberty' seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. . . . We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one's hair as he wishes." (footnotes omitted). Id. at 1284-1285.
"the Constitution guarantees rights other than those specifically enumerated, and that the rights to govern one's personal appearance is one of those guaranteed rights." Id. 450 F.2d at 1075.
We agree that the differences in the above mentioned conceptual approaches to the problem are in considerable measure semantic and that there is indeed a common theme in all of these cases. However, it is our view that the First Circuit's approach was correct; we therefore prefer to follow it and hold that the governance of the length and style of one's hair is implicit in the liberty assurance of the Due Process Clause of the Fourteenth Amendment.16 It may well be that this formulation in effect adopts the concept of penumbral rights; yet, we are inclined to agree with the view of the Richards court that in the absence of further guidance from the Supreme Court, we ought not to expand the Ninth Amendment beyond the notions applied to the right of (marital) privacy as expressed in Griswold .
The foregoing does not end the discussion of the constitutionality of the school dress code under attack, for it is fundamental that personal freedoms are not absolute. Accordingly, we must embark upon the same inquiry as this Court did in Gere , and assess the reasonableness of the regulation in relation to its subject, to reconcile the protected right with the legitimate interests of the community.
The results of our inquiry do not support the Board. Unlike Gere v. Stanley , supra, there is no evidence that long hair worn by James or any other student has caused disruption of any kind either before or after adoption of the code. There is no evidence in this case that long hair was hazardous to anyone's health. With the exception of safety considerations in the shop classes, when the Board's evidence is boiled down, it amounts to a contention, which has generally been rejected, that long hair is bad for the "academic atmosphere." Whether or not this phrase, uttered by the school principal, is a euphemism for an establishmentarian distaste for long hair is beside the point. The fact is that there is no evidence in this record that long hair has any effect on the academic accomplishments of James or of other "longhairs" or their classmates.
The exception which we have noted does, however, require further consideration, for the evidence which was developed with respect to the metal and wood shop classes, if credited, might well justify the enforcement of regulations pertaining to the length, or at least the management, of hair as a condition of taking the various shop courses at the school. For instance, perhaps nets or head bands could provide the requisite safety in such classes, or other measures could be adopted which are designed to assure that their legitimate purpose -- safety -- is accomplished, as long as they are as limited as possible so as not to overly burden the exercise of a protected right.
With the exception of the shop class situation, the school administration failed to supply persuasive reason or proof to support the promulgation and enforcement of the Board's regulation limiting the length of the hair of male students. It has demonstrated no outweighing state interest justifying the intrusion. We have before us only the facts of this case. On the basis of those facts, and in view of our discussion of the constitutional issues involved, we hold the Board's regulation, except as applied to the shop classes, invalid and its terms unenforceable. With respect to the shop class situation, however, it is inappropriate for this court to evaluate the testimony in the absence of findings by the district judge. Accordingly, we vacate the judgment of dismissal and remand the case to the District Court so that the district judge may make the findings with respect to whether the school code may be enforced with respect to the length or management of hair as a condition of taking the various shop courses. The District Court should thereupon enter judgment in conformity with those findings and with this opinion.
"Our holding [in Breen] rested upon the premise that the Constitution contemplated protection for additional fundamental right[s] . . . which exist alongside those fundamental rights specifically mentioned in the first eight amendments. Griswold v. Connecticut , 381 U.S. 479, 488, 85 S. Ct. 1678, 14 L. Ed. 2d 510. . . ."


ART 2030 is focused on making art for a better world and sur le chemin is a collaborating designer. Read more about how we’re doing this.
sur le chemin collaborates with ART 2030 which is a non-profit organization aiming to merge art with the 2030 Sustainable Development Goals of the United Nations. ART 2030 is coordinating art projects including public art experiences, panel discussions, and performance art.
In 2018, sur le chemin worked with ART 2030 for the “Tow with the Flow” performance art installation by Lilibeth Cuenca Rasmussen. This is something we also wrote about in our journal here.
The performance has been shown during Roskilde Festival and outside of SMK during CHART end of August.
In late September, Tow with the Flow also took place as part of ART 2030 New York. This happened in collaboration with students from New Design High School.
Incorporating several of the UN’s 2030 sustainable development goals, Tow with the Flow criticizes the globalized textile industry.
Lilibeth Cuenca Rasmussen wishes to call attention to the atrocious inequalities faced by workers in the textile labour market. However, she needed to also create awareness regarding alternative forms of consumption and production for a sustainable future.
For this purpose, performers emerged from dark cloaks and questioned conventional clothing. They moved on to embracing colour and covering themselves in layers of fabric as a symbol of the ever-growing textile waste.
ART 2030 partnered with sur le chemin to design and produce 17 “all-in-one” costumes. Inspired by the idea of a wardrobe that you can bring along throughout your life a multifuncional design was created. It could be used as clothing but also be transformed into a tent, a large pillow, or even a blanket.
With this, the ART 2030 performance art installation by Lilibeth Cuenca Rasmussen and sur le chemin designer, Kjetil Aas, showed that fashion can be so much more than just a large wardrobe.
Even though mass production – as well as mass consumption – has become prevalent, we do have other options. We just need to make better choices. All clothes can have more than one purpose. And all clothes should.
In fact, this is critical for future consumption if we’re to reach the United Nations 2030 Sustainable Development Goals.


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The Supreme Court released the argument calendar for its November sitting, which begins on Monday, October 29. During the six days of the November sitting, the justices will hear oral arguments in 12 cases, involving topics that range from the proper method of service for a foreign country to pre-emption by the Atomic Energy Act.
The November sitting kicks off with two oral arguments involving the interpretation of the Federal Arbitration Act. Henry Schein, Inc. v. Archer & White Sales asks the justices to decide whether the act allows a court to decline to enforce an arbitration agreement that gives the arbitrator the power to decide questions about arbitrability if the court believes that the arbitrability claim is “wholly groundless.” And in the second argument of the day, in Lamps Plus v. Varela, the court will consider whether the act bars a state-law interpretation of an arbitration agreement that would allow class arbitration, even when the agreement itself does not mention class arbitration.
Garza v. Idaho (Oct. 30) – When an inmate waives his right to appeal and then argues that his trial counsel was constitutionally inadequate because he failed to appeal, despite the inmate’s request, should courts assume that the inmate was prejudiced by his lawyer’s failure to appeal, or must the inmate actually show that he was prejudiced by indicating what issues he would have raised had he appealed?
Sturgeon v. Frost (Nov. 5) – Whether the Alaska National Interest Lands Conservation Act, a federal law governing the National Park Service’s authority over lands in Alaska, bars the National Park Service from regulating other land – owned by the state, native corporations or private owners – within the boundaries of Alaska national parks.
Virginia Uranium v. Warren (Nov. 5) – Whether Virginia’s ban on uranium mining conflicts with the Atomic Energy Act, which gives exclusive power to regulate the radiological safety of milling and the resulting tailings to the federal Nuclear Regulatory Commission.
Bucklew v. Precythe (Nov. 6) – A challenge to the planned execution by lethal injection of an inmate who suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat,” as well as whether the inmate has made the showings required by the court’s lethal-injection precedent regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.
BNSF Railway v. Loos (Nov. 6) – Whether a railroad’s payment to an employee for time lost from work can be taxed under the Railroad Retirement Tax Act, the federal law that – along with the Railroad Retirement Act – establishes a separate retirement and disability benefit system for railroad employees.
Republic of Sudan v. Harrison (Nov. 7) – Whether, under the Foreign Sovereign Immunities Act, a plaintiff can serve a foreign government by sending his summons and complaint by mail to the country’s embassy in the United States, or whether he must instead send the summons and complaint directly to the country’s foreign minister in that country.
Culbertson v. Berryhill (Nov. 7) – Whether, when the Social Security Act provides that a court can award attorney’s fees “not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled,” the 25-percent cap applies only to attorney’s fees for representing a claimant in court or also to fees for representing a claimant before the Social Security Administration.


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James is the immediate past Chair of the American Bar Association Presidential Standing Committee on Lawyers’ Professional Liability.
James Brown is an experienced trial lawyer handling complex litigation throughout the courts of Louisiana and the U.S., with a focus on banking, contract and professional liability disputes. A Fellow of the American College of Trial Lawyers, he has a national reputation in key areas of complex litigation: legal malpractice defense, director and officer liability, antitrust, trusts and estates litigation, First Amendment and Education Law. James is the chair of the firm's Commercial Litigation Section and Professional Liability Group, and he serves as the firm's General Counsel and Loss Prevention Partner.
For over three decades, James has represented federal banking agencies and banks in complex commercial and professional liability cases. He also has defended national legal malpractice carriers and law and accounting firms, and has handled trust and estates litigation and other types of commercial claims and disputes. James has tried difficult, high-stakes cases in these areas in both state and federal courts.
A national management consulting firm was facing post-Katrina lawsuits brought by the Louisiana Attorney General, claiming that our client was part of a conspiracy to underpay victims for property damage. We developed a new theory of “disguised class and mass action” that enabled us to remove the case to federal court, where we prevailed, avoiding a potential nine-figure exposure.
The Federal Deposit Insurance Corporation turned to James and the firm's litigation team when Westernbank of Puerto Rico failed in 2010. With James's help, the FDIC sued the bank's directors and officers claiming gross mismanagement that led to the bank’s failure. James doubled the amount of liability insurance available to pay the claim by persuasively arguing a theory of “relation back” of coverage before the federal court, leading to a $34 million settlement in FDIC’s favor – over five times the FDIC’s litigation costs.
In addition to the FDIC, James represents other major institutional clients, such as Attorneys’ Liability Assurance Society, Inc. and other national legal malpractice carriers. “The unifying theme of these cases is their size, complexity and large exposure," James notes.
Successfully defended a leading national retailer and motor fuel distributor against suits by a New Orleans retail chain seeking to invalidate motor fuel distribution contracts. We obtained full enforcement of our client’s contracts along with a refund of a substantial portion of our attorneys’ fees for the client’s benefit (2017).
Successfully defended an international law firm in a major securities case in Louisiana (2013-2016).
Successfully defended one of the nation’s largest flooring retailers against a wrongful death claim alleging emissions from the flooring (2016).
Lead counsel for FDIC in a director and officer liability case in Atlanta, GA (2012-2016). Obtained over $17 million in settlements and judgments for FDIC in 2015 and 2016.
Secured dismissal of RICO, unfair trade practice and related claims against international law firm (2012).
Secured summary judgment dismissing legal malpractice claims against a large New Orleans law firm and national legal malpractice carrier (2012).
Secured a federal court judgment recognizing the non-governmental status of a Louisiana charter school operator and its right to redress under 42 U.S.C. Section 1983 for deprivation of its vested contractual rights in violation of Article 1, Section 10 of the U.S. Constitution. The judgment was the first of its kind and has landmark significance to the charter school movement sweeping the nation. Advocates for Arts-Based Education Corporation v. Orleans Parish School Board, 2010 U.S. Dist. Lexis 6019 (EDLA Jan. 26, 2010).
Defended an international law firm and one of its senior partners in a two week jury trial in Mississippi (2010).
Defended a former CEO of Louisiana's second largest HMO in a three week federal white collar jury trial (2008).
Secured dismissal of antitrust price fixing claims filed by the Louisiana Attorney General against one of the world's largest international consulting firms. State of Louisiana, ex. rel., James D. Caldwell v. Allstate Insurance Co., et. al., No. 07-9409 (East. Dist. La. Dec. 17, 2008).
With other attorneys, secured a reversal and remand of an award of $72 million in sanctions against a federal banking agency. Mr. Brown and other firm attorneys were hired to handle the matter on appeal from the sanctions award. FDIC v. Maxxam, Inc., et. al., 523 F.3d 566 (5th Cir. 2008).
Secured dismissal of antitrust claims filed by the Louisiana attorney general against one of the nation's leading pharmaceutical manufacturers (2008).
Developed a successful legal theory for removal of state attorney general suits against industry as disguised "class" and "mass" actions subject to the Class Action Fairness Act. See State of Louisiana, ex. rel., James D. Caldwell v. Allstate Insurance Co., et. al., 2008 U.S. App. Lexis 15275 (5th Cir. July 18, 2008).
Successfully defended the former president of one of Louisiana's largest health maintenance organizations against multiple civil actions brought by the company's Receiver (2006).
With other attorneys, secured dismissal of a major class action brought against a federal banking agency and credit card bank challenging the insured status of the bank. (2005).
Part of the legal team that secured an important victory for a federal banking agency in the United States Court of Appeals for the Fifth Circuit. The class action attacked the insured status of a federally insured banking institution. Heaton v. Monogram Credit Card Bank, 297 F.3d 416 (5th Cir. 2002).
Working with Liskow & Lewis attorneys, obtained a reversal by the Louisiana Supreme Court of a large malpractice judgment entered against a law firm and national malpractice carrier. The firm was retained to handle the appeal after the adverse judgment was rendered by the district court. The decision is important to many other pending and future cases. Hendrick v. ABC Ins. Co., 00-CC-2403 (La. 5/15/01), 787 So.2d 283.
In a professional liability case for a federal banking agency, secured an important victory in the United States Fifth Circuit involving the failure of Louisiana’s largest thrift institution. FDIC v. Barton, 233 F.3d 859 (5th Cir. 2000).
New Orleans Ethics Review Board – Member by appointment of the Mayor, 2013–2019. Vice Chair, 2017-18. Oversees the New Orleans Inspector General and Independent Police Monitor and administers and enforces the New Orleans Code of Governmental Ethics. Mr. Brown is Chairing the 2017 New Orleans Inspector General search.
Chaired 2016 U.S. Magistrate Judge Merit Selection Panel by appointment of the Chief Judge of the federal court.
James frequently speaks, teaches and publishes in the areas of professional liability, ethics and trial advocacy. He has given over 100 professional presentations to national, state and local bar associations in the areas of trial practice, complex litigation, and lawyer ethics and professional responsibility.
James is the immediate past Chair of the American Bar Association Presidential Standing Committee on Lawyers’ Professional Liability by appointment of the President of the ABA. The 10-member presidential standing Committee plans, sponsors and produces the biannual ABA National Legal Malpractice Conference, which draws together hundreds of leading attorneys and insurance industry professionals from around the nation to address current issues relating to prosecution and defense of legal malpractice cases, loss prevention and professional liability insurance. The Committee also publishes newsletters and alerts on late breaking cases and developments to the members of its Lawyers’ Professional Liability Consortium.
He is also a former member of the firm’s Board of Directors and serves as the firm’s General Counsel and Loss Prevention Partner.
James is an accomplished amateur violinist and guitarist.

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In United States v. Scully, 16-3073-cr (Pooler, Lynch, Cogan), the Second Circuit vacated the defendant’s conviction for various offenses, including mail and wire fraud, conspiracy to defraud the United States, the sale of misbranded and unapproved drugs, and the unlicensed wholesale distribution of prescription drugs, finding that the District Court erred in excluding evidence related to his advice-of-counsel defense. The opinion provides a helpful overview of the requirements of Rule 403 balancing and the nature of the burden in establishing an advice-of-counsel defense.
We are attaching an article about a major Supreme Court decision that imposes a five-year statute of limitations on disgorgement actions brought by the SEC. Justice Sotomayor, writing for a unanimous court, held that disgorgement is a financial penalty, not a form of restitution to victims. The SEC now must either more quickly bring its charges or persuade targets of its investigation to agree to a tolling agreement.
In United States v. Jones, 15-1518-cr (Walker, Calabresi, Hall), the Second Circuit, applying the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 134 S. Ct. 2551 (2015) (Johnson 2015), struck down the “residual clause” of the Career Offender Guideline as void for vagueness and held that a conviction for robbery in New York no longer constitutes a “crime of violence” in all circumstances. This case reaffirms Second Circuit precedent recognizing the application of Johnson and Johnson 2015 to the sentencing guidelines, an issue that will be taken up by the Supreme Court this fall.
In In re 650 Fifth Avenue and Related Properties, 14-2027 (Kearse, Raggi, Wesley), the Second Circuit vacated an award forfeiting the appellants’—the Alavi Foundation and 650 Fifth Avenue Company—properties to the United States. The lower court ordered the forfeiture of the properties, including inter alia, a 36-story office building located at 650 Fifth Avenue in Manhattan, on two grounds: (1) pursuant to 18 U.S.C. § 981(a)(1)(C) as proceeds traceable to violations of the International Emergency Powers Act and certain Iranian Transactions Regulations issued by the Department of the Treasury, and (2) as property involved in money laundering transactions forfeitable under 18 U.S.C. § 981(a)(1)(A).
In United States v. Compton, 15-942-cr (Walker, Raggi, Hall), the Second Circuit held that an extended Terry stop by Border Patrol agents was justified by reasonable suspicion and declined to suppress evidence obtained during the stop. Compton confirms the proposition that a court may consider a defendant’s attempt to avoid a checkpoint as a relevant factor in the “reasonable suspicion analysis” and highlights the fact-intensive nature of that analysis.