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Texas’ 14th Court of Appeals held that a trial court erred when it overruled a Houston dentist’s motion to suppress evidence of drugs that police seized in his apartment after violating the “knock and announce” rule set out in federal law. In a Sept. 12 opinion that seems to invite review by the Texas Court of Criminal Appeals, Houston’s 14th Court of Appeals held in Price v. State that a no-knock entry can’t be justified by a police officer’s sworn statement that individuals in possession of controlled substances normally have firearms and should be considered armed and dangerous. Prior to his trial in August 2001, Gilbert Price filed a motion to suppress evidence that he had cocaine and claimed that the search and arrest were conducted without legal justification because police did not knock or announce their presence before entering his apartment, the 14th Court of Appeals’ opinion said. “They [police] didn’t knock; they just sort of broke in,” says Bob Wicoff, a Houston solo who represents Price in his appeal. Price’s trial attorney, Houston solo Wayne Heller, says police used a battering ram to knock down a door to the apartment. According to the 14th Court of Appeals’ opinion, Price pleaded guilty to possession with intent to deliver less than 200 grams of cocaine after 228th District Judge Ted Poe overruled Price’s motion to suppress the evidence. Price was placed on deferred adjudication for three years and fined $5,000, the opinion said. In a brief, Price argued that the trial court erred by overruling the motion to suppress because the state provided no evidence of any reason why police thought they had to enter his apartment shortly before midnight on April 23, 2001, without knocking or announcing. “There were no suggestions at all that he was armed or dangerous,” Wicoff says. The U.S. Supreme Court held in 1995′s Wilson v. Arkansas that the knock-and-announce rule forms part of the reasonableness inquiry under the Fourth Amendment. But the Court left unidentified the circumstances under which the failure to knock and announce would be excused, the 14th Court of Appeals’ opinion said. In 1997, the Supreme Court said in Richards v. Wisconsin that police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances of a case, would be dangerous or futile or would inhibit the effective investigation of the crime. The ruling rejected the Wisconsin Supreme Court’s holding that a blanket exception to the “knock-and-announce” rule existed in felony drug cases. U.S. Supreme Court Justice John Paul Stevens, writing for the unanimous Court, said in the opinion that if a per se exception were allowed for each category of criminal investigation that included a considerable, albeit hypothetical, risk to officers or the destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless. Few intermediate Texas courts have addressed the issues since the U.S. Supreme Court’s rulings, and no opinion from the Texas Court of Criminal Appeals is on point, 14th Court of Appeals Justice Eva M. Guzman said in Price. Heller says he believes the 14th Court of Appeals is “just begging” for a review by the Texas Court of Criminal Appeals. The Harris County, Texas, district attorney’s office argued in its brief that what was rejected in Richards was a “judicially made exception” to the knock-and-announce rule. Because the police officer who gave the sworn statement to obtain the search and arrest warrant in Price believed that a danger existed, the state met its burden in showing that it would be dangerous or futile in this case to knock and announce, the brief said. The brief also said that a combination arrest and search warrant was used, which the district attorney’s office argued was evidence that the officers expected to find not only drugs, but also Price, giving them reason to fear for their safety. No authority permits the state’s conclusion that including such a statement in an affidavit indicates that the officer believed that the target in this case would be armed and dangerous, Guzman said in the opinion. Justices Leslie Brock Yates and Charles Seymore joined Guzman in Price. CCA BOUND? Eric Kugler, the assistant district attorney who wrote the state’s brief, says prosecutors don’t plan to give up on Price. “We’re definitely going to pursue it,” Kugler says, adding that the next step may be to file a motion for rehearing by the 14th Court of Appeals. The case eventually could end up before the Texas Court of Criminal Appeals, he says. Kugler says a challenge can be made as to whether suppression is the correct remedy in this case. However, the state did not argue the remedy matter in the brief submitted to the 14th Court. George Dix, a University of Texas School of Law professor who teaches criminal law, says one area that the U.S. Supreme Court has not addressed is the effect a Fourth Amendment “impermissible entry” violation has. Even if Richards and Wilson were violated in Price and the entry to the apartment was unreasonable under the Fourth Amendment, the evidence obtained in the search still was admissible, he says. “At most, the no-knock entry affected the search by speeding it up a minute or two, and this is not enough to ‘taint’ the fruits of the search,” Dix says. Dix says the argument also could be made that even if the entry was in violation of the Fourth Amendment, the subsequent search and discovery were not. Thus the drugs arguably were not obtained in violation of the Fourth Amendment, even though the entry was a violation, he says. But if the state wants to petition for discretionary review by the Court of Criminal Appeals on the ground that the evidence was admissible, Dix says, its apparent failure to raise the issue in the court of appeals may present a problem.

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