Legal Interoffice Memo — Legal Writing Assignment IV


Interoffice Memo

To: Legal Extern

From: Senior Partner

Date: January 12, 2010

Re: Jasper Castillo, Knock and Announce Requirement, Civil Case

File # 100122CJ

Statement of Facts

In this memo, I will examine Mr. Castillo’s civil rights claim relating to whether the federal agents violated 18 U.S.C. § 3109: the knock and announce statute. Mr. Castillo owns a health food store in Cincinnati, OH called ”Bountiful Health.” He works long days at his store and often sleeps there instead of going home. His back office has a bed, microwave, small refrigerator, and a bathroom. Mr. Castillo’s cousin and co-worker, Lily Chin, would also sleep in the back office occasionally. The back office is the center of his online prescription marijuana dispensary, as well as where he grows marijuana plants and stores dried cannabis. Before shipping his product called ”Painfree” to customers, Mr. Castillo scans a valid Doctor’s prescription given to patients residing in states where medical marijuana use is legal. In an unrelated incident, police officers caught Ms. Chin selling marijuana near the store, so Mr. Castillo anticipated some law enforcement interest in his online business. Furthermore, Mr. Castillo has a well-documented history of domestic violence. His beatings hospitalized his wife twice.

A federal prosecutor made a deal with Jimmy Schmidt: for a lighter sentence, the prosecutor wanted information regarding Mr. Castillo’s business. Schmidt gave information regarding the layout of the ”Bountiful Health’s” back room. He told officers the location where Mr. Castillo kept the transaction records and marijuana, which were next to the paper shredder and toilet. Schmidt also testified that Mr. Castillo would never let anyone get his supply of marijuana while there was ”breath still in him.” Schmidt also told the prosecutor that Mr. Castillo kept a gun in the back room to protect his marijuana crop.

On September 29, 2009, at around 10:30 p.m., federal agents came to the back door of ”Bountiful Health” with a search warrant. When the agents arrived, they heard loud music from the store. The officers broke down the door into the premises without knocking or announcing their presence. The door hit Ms. Chin in the face knocking a tooth loose and throwing her into a shelf containing an expensive collection of liquid herbs that shattered on impact. The agents then swept the area. Agent Brown went directly to a dried supply of ”Painfree” stored in the bathroom cabinet next to the toilet, and Agent Sing went to the transaction records located near the computer and paper shredder.

Issue Statement

Under 18 U.S.C. 3109, does Mr. Castillo have a valid civil claim against federal officers who violated the knock and announce requirement while executing a search warrant when: (1) Mr. Castillo had a gun on the premises; (2) Mr. Castillo has a history of domestic violence, but no other criminal history; (3) Mr. Castillo placed evidence next to means of disposal; and (4) Mr. Castillo grew marijuana plants in the back room?


18 USC 3109, the knock and announce statute, reflects the common law discourse that protects one’s domicile from unreasonable searches and forms part of the reasonableness inquiry under the Fourth Amendment. Miller v. United States, 357 U.S. 307; 78 S. Ct. 1195 (1958). The fourth amendment protects ”[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In other words, every person enjoys the right to be protected from an unreasonable search and seizure by a government agent. An agent of the government must respect this legal and physical boundary and act in accordance with the constitution.

Knocking and announcing is one formality that developed under the common law and fourth amendment jurisprudence. For example, the Supreme Court recently stated, ”[a]n examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.” Wilson v. Arkansas, 514 U.S. 931; 115 S. Ct. 1915 (1995). Requiring law enforcement officers to announce their presence provides citizens with a real protection against unannounced raids of their premises. Case precedent and common law demonstrate that the policy underlying the knock and announce requirement is applicable today.

The Supreme Court ruled the knock and announce requirement is codified in the 18 USC 3109 and applies to federal government agencies. United States v. Miller, 357 U.S. 309. If either state or federal agents fail to knock and announce their presence, then the entry is unlawful. However, the Supreme Court provided three exigent circumstances that excuse government agents failure to knock and announce. Id.

The burden of proving the exigent circumstances is upon the government agent(s) who violated the statute. United States v. Murrie, 534 F.2d 698  (6th Cir. 1976). In Mr. Castillo’s case, the federal agents who broke into his shop will have to provide the evidence to establish an exigent circumstance.

The exigent circumstances are not enumerated in any statute per se, but are constitutionally valid exceptions to the knock and announce statute. The exigent circumstances are as follows:

(1) the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture; or (2) when the officers may in good faith believe that they or someone within is in peril of bodily harm; or (3) the person to be arrested is fleeing or attempting to destroy evidence.United States v. Miller, 357 U.S. 309. Each exigent circumstance alone is sufficient to circumvent the knock and announce requirement.

The first exception, the useless gesture, is a case of first impression concerning our fact pattern. Under this exigency, the suspects must know the police are there and their purpose. cite. In our case, Mr. Castillo and Ms. Chin had no knowledge of the federal agent’s presence. Mr. Castillo anticipated law enforcement personnel were interested in his business, but at the tine of entry, he was not aware of their presence. The loud music may imply that knocking and announcing is a useless gesture, but case precedent available is silent on this issue. Therefore, is exigency is considered not applicable.


The first exigent circumstance in dispute is whether the officers, in good faith, believed they or others, would be placed in peril if they knocked and announced. Id. To demonstrate a good faith belief of peril, officers must prove they possessed information that the suspect had a firearm and was likely to use it. United States v. Bates, 84 F.3d 795 (6th Cir. 1996). The presence of a gun is not enough, because a proclivity to use it is necessary. Id. To substantiate the suspects violent disposition, the court will look at: ”[1] threats to an officer’s safety; or [2] a criminal record reflecting violent tendencies; or [3] a verified reputation of a suspect’s violent nature.” Id.

In cases where the officers proved the peril exigency, the officers possessed information that the suspect had a gun and the inclination to use it. In one case, the suspect was wanted for a murder and kidnapping case. Cite. The officer in charge of the arrest was warned via Teletype that the suspect was considered armed and extremely dangerous. Because the informant warned the suspect the FBI was looking for him, and the agent knew of the presence of two males in the room, the court determined that the officers had a good faith belief that knocking and announcing their presence would create a perilous situation. In addition, the court considered that the information was current, as the arrest happened at night. United States v. Ramirez, 770 F.2d 1461 (9th Cir. 1985). In another case, suspect was on probation for the felony of carrying a concealed weapon and possession of firearms. United States v. Nabors, 901 F.2d 1353 (6th Cir. 1990). Prior to the arrest, the officers had information that the suspect had various firearms and narcotics and that he wore a bulletproof vest. During the arrest, the suspect shot a police officer while attempting to escape. After the arrest, the suspect was caught attempting to escape the prison. Id. The prior information the officers had about the suspect was enough to circumvent the knock and announce statute. The actions of the suspect during and after the arrest are exemplary of a violent disposition. Similar factors found in these cases will be essential in creating the officer’s case for an exigent circumstance.

In a case where the officers failed to meet the peril exigency requirement, the officers did not possess information that the suspect had violent tendencies. United States v. Bates, 84 F.3d 796. The informant told the arresting officer that the suspect had a gun. However, the informant failed to mention the suspect’s inclination to use it. There was no evidence the suspect had a violent history or reputation, nor did the suspect threaten violence against law enforcement officers. The determinative element in this case was the officer’s lack of information or suspicion that demonstrated the suspect’s violent nature.

The court will most likely find the officers did not have a reasonable belief that they, or others, were in peril. The mere presence of a firearm is not sufficient to prove an exigent circumstance. Id. at 794. Therefore, the court will conclude: (1) Mr. Castillo’s history of domestic abuses is not adequate to support the officer’s accusation of a violent history; and, (2) Mr. Castillo’s lack of a violent reputation and association further weakens the agent’s peril exigency argument; and, (3) Mr. Castillo’s threat that no one would get his supply as long as there is ”breath still in him” can not be construed as a threat to law enforcement personnel.

The court will most likely find that Mr. Castillo’s domestic violence history is not a sufficient basis for determining violent tendencies towards law enforcement personnel. To contradict this result, the state will argue that domestic violence is a serious offence. In contrast to the suspect in Bates, Mr. Castillo does in fact have a recorded violent and criminal history. A man who beats his wife is, arguably, emotionally unstable and out of control. Consequently, any altercation can invoke this violence towards another person, namely a federal agent. Furthermore, the violence has happened more than once. This repeated domestic abuse alludes to fundamental violent tendencies. On the other hand, Mr. Castillos violent history is significantly different from the suspects in Ramirez or Nabors. Unlike the suspect in Ramirez, who was wanted for kidnapping and murder, Mr. Castillo’s violence is limited to the boundaries of his marriage. Furthermore, the suspect in Nabors had a history of weapon charges, which are fundamentally different from domestic violence charges. Extending Mr. Castillo’s violence towards his wife, to violence towards law enforcement officers seems unreasonable. The lack of precedent in favor of the agent’s argument implies that violence concomitant with drug dealing or trafficking is necessary to prove the existence of an exigent circumstance.

Additionally, the court will most likely determine that Mr. Castillo’s lack of a violent reputation and association contradicts the agent’s exigency argument. The state will argue that Ms. Chin was caught selling drugs near his store. His association with Ms. Chin portrays him as a provider of marijuana for dealers outside of his online business. In addition, his association with Schmidt, an incarcerated individual, colors his reputation with a judge or jury. However, unlike any of the defendants in Bates, Nabors, Ramirez, Mr. Castillo grew his own supply for his own business. For the most part, Castillo was running a semi-clean business and not part of some violent criminal environment. These facts further diminish Mr. Castillo’s threat to law enforcement personnel.

Finally, the court will most likely determine Mr. Castillo’s threat is not a sufficient basis for the officers peril claim. However, the state will argue that Mr. Castillo’s threat was meant for anyone attempting to take the marijuana. Schmidt, the informant, specifically stated that no one would get to Mr. Castillo’s marijuana supply. The evidence of Mr. Castillo’s threat distinguishes itself from the suspect in Bates, because the officers in that case lacked any evidence concerning the suspects violent behavior. This is important because the court in that case required evidence of a threat to find the existence of an exigent circumstance. Here, the agents, after hearing the Mr. Castillo’s threat, would be concerned for their safety. The informants other information was accurate; therefore, this information must be reliable. In other words, disregarding Mr. Castillo’s threat would be imprudent and dangerous. On the contrary, Mr. Castillos threat was to Schmidt, who is a convicted felon. This is important because he is the only convicted criminal associated with Mr. Castillo on record. Mr. Castillo could argue the threat was to protect his business from his criminal acquaintance, not from law enforcement personnel. Unlike the suspect in Ramirez, Mr. Castillo was not considered armed and extremely dangerous, nor was he a suspect in felonious charges. Mr. Castillo’s lack of a violent history precludes any genuine threat to federal agents safety.

Destruction of Evidence

To demonstrate the existence of an exigent circumstance, law enforcement personnel must have a justified belief that those within the domicile will destroy evidence crucial to the investigation. United States v. Miller, 357 U.S. 309. In deciding the issue, the courts generally consider the placement and amount of evidence present in the premises, as well as whether the drugs are of an easily disposable nature. Richards v. Wisconsin, 520 US 385 & United States v. Bates, 84 F.3d 790. In addition, the Supreme Court declared, ”[t]he mere possibility or suspicion that a party is likely to dispose of evidence when faced with the execution of a search warrant is not sufficient to create an exigency.” United States v. Bates, 84 F.3d 790. quoting United States v. Stewart, 867 F.2d 581 (10th Cir. 1989). The belief must be that the destruction of evidence is imminent. Id. Therefore, the police must provide information that the suspects were either in the process of destroying the evidence or had a strong inclination to do so.

In a case where the officers were successful in proving an exigent circumstance, they provided reasonable evidence that the drugs on location were of an easily disposable nature. Richards v. Wisconsin, 520 us 389. In Richards, police officers attempted to gain entry to the premises impersonating a maintenance man. The suspect realized they were police and quickly closed the door. The officers then broke open the door and arrested the suspect. The officers knew the suspect sold cocaine, an easily disposable narcotic. After the arrest, the officers found the cocaine in plastic bags above the bathroom ceiling tiles. The placement of the cocaine indicated the suspect intended to quickly destroy the evidence. By announcing their presence, the officers feared the suspect would attempt to dispose of the cocaine with due haste. Id.

A case where the officers were unsuccessful in proving an exigent circumstance, they did not provide reasonable evidence that the drugs were easily disposable. United States v. Bates, 84 F.3d 796. In Bates, the arresting officers had a diversion strategy. While several officers knocked on the door, other officers would climb a ladder and enter from the second floor balcony. Upon executing the plan, the officers found fifteen kilograms of cocaine on the end of a couch. At a hearing, an arresting sergeant conceded, ”it was highly unlikely anyone could have disposed of fifteen kilograms of cocaine in the time it would have taken the officers to enter the Apartment after knocking and announcing their presence.” Id. at 793. The inability to destroy the evidence played a significant role in the court’s ruling.

In the present case, the court will most likely find that an exigent circumstance did not exist. The agents have ambiguous information regarding the suspects intent to destroy the evidence. Schmidt’s information regarding Mr. Castillos threat, that no one would get his supply as long as there was ”breath still in him,” lacks the plain intent to destroy his supply. Additionally, the situation lacked the imminent destruction requirement. Mr. Castillo and Ms. Chin had no awareness of the agent’s presence at the door. Furthermore, there was too much evidence to destroy in a short time. The court will concede there was evidence located near means of disposal, but the only individuals on the premises were Ms. Chin and Mr. Castillo. If both individuals began destroying evidence, then one of the three pieces would be left untouched. The marijuana plants in particular, play an important role in the inadequacy of the agents exigency argument. Marijuana plants are not easily disposable. Therefore, the type of evidence and lack of imminence, play a considerable role in denying the agents’ exigency claim.

Mr. Castillo’s threat that no one would get to his supply while there is ”breath still in him,” doesn’t meet the imminent destruction requirement. The state will argue that the informant’s information supports an intention that Mr. Castillo would destroy his supply before it could be confiscated. Perhaps Mr. Castillo had a destruction mechanism to set ablaze the marijuana plants. If he did have a destruction mechanism for his plants, this would allow him and Ms. Chin to destroy the other two items of evidence. However, the agents’ argument is based in supposition and implication of Mr. Castillo’s threat. The lack of a specific threat to destroy the evidence negates the requisite intent to meet the imminent evidence destruction requirement.

Additionally, Mr. Castillo’s placement of the evidence implies a general intent to dispose of it. The agents will argue that the location of the transaction records and dried marijuana imply a general strategy to destroy them. Like the location of the cocaine in Richards, Mr. Castillo’s evidence was in a location that predisposes quick destruction. First, the dried weed was near a toilet. Within moments, the suspects could flush the evidence down the toilet. Second, the transaction records were near a paper shredder. Within moments, the suspects could shred the records. The weakness in the agents exigency argument is the presence of marijuana plants.

The type of evidence in this case underscores a general inability to quickly destroy it. There is no ordinary process whereby a grower could quickly destroy their crop with any sufficiency. Not only is the type of evidence difficult to dispose of, the volume of the evidence itself appears beyond the ability of Mr. Castillo and Ms. Chin to destroy. Like the amount of cocaine in Bates, the size of the marijuana plants demonstrates the inability for Mr. Castillo or Ms. Chin to quickly destroy the evidence. The agents will have to concede that the marijuana plants could not be destroyed in the time it takes to knock and announce their presence.


Because of the inadequacy of the agents’ arguments for the exigent circumstances, Mr. Castillo does have a valid civil rights claim under 18 USC 3109, the knock and announce statute.

The agents will have to acknowledge that Mr. Castillo did not pose a perilous threat to the arresting agents. The threat Mr. Castillo made to Schmidt will most likely be construed to have been a warning to his criminal friend and not to police officers or federal agents. Furthermore, the presence of gun itself does not create an exigent circumstance. The arresting officers must present evidence to the court that the suspect has the proclivity to use it. Mr. Castillo’s domestic abuses would not satisfy this requirement. Nor would his reputation or associations with other criminals satisfy this requirement. However, the agents have a strong argument for this exigent circumstance.

The agents will have to concede that Mr. Castillos circumstances do not constitute a destruction of evidence exigency. Mr. Castillo’s threat that no one would get his marijuana does not strongly infer that his intent was to destroy the evidence. The agents’ arguments concerning the placement of the evidence, and their easily disposable nature, falls apart when confronted with the inability to quickly destroy the marijuana plants. The lack of information demonstrating an imminent threat of evidence destruction, and the impossibility of quickly destroying all the evidence, contradicts the agents’ argument for an exigent circumstance.

Mr. Castillo’s case is difficult to speculate its outcome with complete certainty. However, I do feel we have a strong case and can represent Mr. Castillo’s interest with confidence.