UNITED STATES OF AMERICA, PETITIONER V. GILBERT MORENO

   No. 83-396

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-8a) is
reported at 701 F.2d 815.  The opinion of the district court (App. B,
infra, 9a-11a) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 17, 1983.
 A petition for rehearing was denied on June 10, 1983 (App. C, infra,
12a).  On August 2, 1983, Justice Rehnquist extended the time for
filing a petition for a writ of certiorari to and including September
8, 1983.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                           STATUTE INVOLVED

   18 U.S.C. 3109 provides:

         The officer may break open any outer or inner door or window
      of a house, or any part of a house, or anything therein, to
      execute a search warrant, if, after notice of his authority and
      purpose, he is refused admittance or when necessary to liberate
      himself or a person aiding him in the execution of the warrant.

                          QUESTION PRESENTED

   Whether evidence seized from a suspect's apartment pursuant to a
valid search warrant must be suppressed on the ground that the agents
executing the warrant violated 18 U.S.C. 3109, where the agents
knocked and announced their authority and purpose at the wooden front
door to the apartment rather than at a locked gate that separated the
common hallway from a small alcove leading to the front door.

                               STATEMENT

   Following a nonjury trial on stipulated facts in the United States
District Court for the Southern District of California, respondent was
convicted of possession of cocaine with intent to distribute it, in
violation of 21 U.S.C. 841(a)(1), and conspiracy to commit that
offense, in violation of 21 U.S.C. 846.  /1/ He was sentenced to
concurrent terms of five years' imprisonment, to be followed by a
special parole term of ten years.  The court of appeals reversed
respondent's convictions, concluding that evidence seized in the
course of a warrant-authorized search of respondent's apartment should
have been suppressed because of the alleged failure of the agents
executing the search warrant to comply with the knock and announce
requirements of 18 U.S.C. 3109.

   1. The pertinent facts, which are not in dispute, showed that on
January 20, 1982, undercover DEA Agent James Clem and a confidential
informant negotiated a purchase of cocaine from co-defendant Joseph
Marino.  Marino directed Agent Clem and the informant to an apartment
building where, Marino stated, his source of supply was located.
After the informant and Marino entered the apartment building, the
informant handed Marino $200 which he had previously received from
Agent Clem.  Shortly thereafter, other agents observed Marino approach
respondent's apartment.  Respondent came out of his apartment and
escorted Marino inside.  Approximately two minutes later, Marino
emerged from the apartment and gave the informant two packages
containing 1.2 grams of cocaine, which the informant delivered to
Agent Clem outside the building.  Agent Clem then discussed with
Marino the possibility of purchasing cocaine in one-half ounce
quantities.  Marino stated that his source would have no problem
handling sales of that size.  Agent Clem and Marino agreed to meet at
a later date to arrange another transaction.  E.R. 39-41.  /2/

   A week later, law enforcement agents proceeded to respondent's
apartment to execute a search warrant for evidence of respondent's
drug distribution activities.  /3/ Respondent lived in a 76-unit
apartment building.  Each apartment opened onto a common hallway.  The
wooden front door to respondent's apartment was recessed approximately
six feet from the common hallway, creating an alcove of approximately
36 square feet.  At the point where the alcove abutted the common
hallway was an ornamental iron gate secured by a lock.  The iron gate
was constructed in such a way that the entire alcove area was visible
from the common hallway.  App. A, infra, 1a-2a;  App. B, infra, 10a;
Tr. 5, 9-11.  /4/

   In the course of surveillance of respondent's apartment, law
enforcement officers observed numerous visitors, each of whom used a
buzzer on the wall adjacent to the iron gate prior to being admitted
to the apartment by respondent, who would come out and unlock the gate
and relock it as soon as the visitor entered.  App. A, infra, 2a;
E.R. 41.  In addition, prior to executing the search warrant for
respondent's apartment, the agents received telephone calls from
several anonymous sources who stated that they had seen respondent
bring firearms into the apartment.  The agents also received
information from local police that the occupants of the apartment were
suspects in several assault investigations and that, during the
preceding month, four shotguns had been reported stolen from the
apartment.  The local police advised the agents that the occupants of
respondent's apartment should be considered armed and dangerous and
that the agents should proceed with caution in entering the apartment.
 Tr. 6-8, 13-16.

   In light of this information, the agents who executed the warrant
approached respondent's apartment in a manner designed to avoid
premature detection.  After forcing open the locked iron gate with a
crowbar, the agents entered the alcove.  At the wooden door, one of
the agents knocked, announced that he was a police officer with a
search warrant, and demanded entry into the apartment.  Co-defendant
Charles Moreno, respondent's son, opened the door.  The agents then
entered and searched the apartment.  Among the items seized were seven
firearms, 5.8 grams of cocaine, financial records reflecting cocaine
sales, $500 in cash, and an assortment of packaging materials and
other paraphernalia used for the sale and consumption of cocaine.  Tr.
11-12, 18, 24;  E.R. 42-43.

   2. Prior to trial, respondent moved to suppress the evidence seized
from his apartment.  He argued, inter alia, that the agents executing
the warrant violated 18 U.S.C. 3109 by knocking and announcing their
authority and purpose at the wooden door to the apartment rather than
at the iron gate.  E.R. 21;  Tr. 29-31.

   The district court denied respondent's suppression motion.  App. B,
infra, 9a-11a.  The court observed that if the agents had announced
their presence at the iron gate, "the occupants of the apartment would
have had ample time to destroy any contraband." Id. at 11a.  In
addition, the court noted that the alcove "is open to public view at
all times" and that respondent therefore could not claim a reasonable
expectation of privacy within the alcove.  Ibid.  The court concluded
that, by knocking and announcing their presence at the front door
before gaining entry to the apartment, the agents complied with the
requirements of Section 3109.

   The court of appeals reversed.  App. A, infra, 1a-8a.  The court
acknowledged (id. at 2a n.1) that there was no dispute that the agents
complied with Section 3109 when they knocked and announced their
authority and purpose at the wooden door to the apartment.  The court
held, however, that the agents violated the statute by failing to
comply with the statutory knock and announce requirement at the iron
gate.  Id. at 3a-7a.  In so holding, the court rejected, as "clearly
erroneous," the district court's finding that respondent had no
reasonable expectation of privacy in the alcove area.  Noting that
Section 3109 applies to windows and to glass or screen doors, all of
which provide at least some visual access to the interior of a home,
the court reasoned that the "ability to see into an area does not
defeat the occupants' privacy and security interests in it" for
purposes of the statute.  App. A, infra, 4a.  The court observed that
the alcove area was occupied exclusively by the residents of
respondent's apartment, that nonresidents could gain entry to the
alcove only by ringing the buzzer at the iron gate, and that
respondent controlled access to the alcove by locking and unlocking
the gate.  These factors led the court to conclude that "the alcove
was clearly a part of the apartment," that "(t)he gate protected
(respondent's) privacy and security interests in the alcove, and the
officers were therefore prohibited from forcibly entering the gate
without complying with section 3109." App. A, infra, 5a (footnote
omitted).  In addition, the court expressed the view that the agents'
use of a crowbar to pry open the gate was unreasonable because it
resulted in the needless destruction of private property.  Id. at 7a.
/5/

   The court of appeals then turned to the question whether the
evidence seized pursuant to the warrant following the agents' entry
into respondent's apartment should be suppressed as the "fruits" of
the Section 3109 violation.  App. A, infra, 7a-8a.  The court rejected
the government's contention that the agents' compliance with the
statutory knock and announce requirements at the front door dissipated
the taint of the unlawful entry through the outer gate.  The court
explained (id. at 8a) that

      the Government tries to characterize as two separate searches
      what was instead one continuous law enforcement activity.  The
      entry at the solid door occurred immediately after the forced
      entry and was made possible by that entry.  The products of the
      search were therefore not "so attenuated as to dissipate the
      taint" of the illegal entry.

   Accordingly, the court ruled that the evidence seized inside
respondent's apartment should have been suppressed.  /6/

                   REASONS FOR GRANTING THE PETITION

   The decision of the court of appeals, suppressing evidence seized
during the search of a suspect's apartment pursuant to a valid
warrant, is manifestly erroneous in several critical respects.  First,
the court erred in holding that the agents violated 18 U.S.C. 3109
when -- without first knocking and announcing their authority and
purpose -- they forced open the iron gate leading to the alcove
outside respondent's apartment.  As this Court has observed, Section
3109 "basically proscribes" an "unannounced intrusion into a
dwelling." Sabbath v. United States, 391 U.S. 585, 590 (1968).  Here,
as the court of appeals itself conceded, the agents complied fully
with the requirements of the statute before entering respondent's
apartment:  the agents did not force their way unannounced into
respondent's dwelling;  instead, after properly giving notice of their
authority and purpose they were peaceably admitted into the apartment
by respondent's son.

   Contrary to the apparent view of the court of appeals, the
statutory reference to the "outer doors" of a house does not require
law enforcement officers to knock and announce at an exterior gate
that does not provide direct access to the interior of a dwelling.  To
require otherwise would provide the occupants with greater opportunity
to destroy evidence surreptitiously prior to the officers' entry, thus
impeding execution of the warrant.  In addition, officers awaiting
entry at an outer gate would be in an exposed position in which they
might be vulnerable to attack should the occupants choose to resist
entry through force of arms.  Thus, although the court of appeals
sought to minimize the impact of its holding (App. A, infra, 5a n.2),
we submit that the glaring nature of the court of appeals' error, and
the dangers it poses to effective law enforcement, warrant review by
this Court.

   Moreover, the court of appeals erred even more egregiously in
holding that the property seized inside respondent's apartment had to
be suppressed as the "fruits" of the alleged statutory violation.
This holding extends beyond the particular context of this case and
raises questions of broad applicability concerning the proper analysis
of "fruit of the poisonous tree" issues and the appropriate remedy for
technical violations of statutes regulating the conduct of law
enforcement officers.  It is undisputed that no evidence was
discovered in the alcove area (to which, in the court of appeals'
view, the agents gained entry unlawfully), that the agents complied to
the letter with the requirements of Section 3109 before actually
entering the apartment, and that all of the evidence at issue was
seized inside the apartment after one of the residents voluntarily
admitted the agents.  In these circumstances, the agents' compliance
with the statute at the front door to the apartment, and their
peaceful entry, fully dissipated any taint from the violation -- if
violation it was -- in forcing open the exterior gate without
following the Section 3109 procedures.  Furthermore, any violation
that may have occurred constituted, at most, a technical statutory
infraction that did not infringe any of respondent's constitutional
rights.  Particularly in view of the fact that Section 3109 does not
itself contain an exclusionary sanction, such a sanction should not be
imposed for an insubstantial violation that does not implicate
constitutional concerns.

   1. As the Court has noted on several occasions, Section 3109 is a
codification of the common law rule that, in the absence of exigent
circumstances, an officer may not forcibly enter a private dwelling
until he has been refused entry after having given notice of his
authority and the purpose of his visit.  See Sabbath, 391 U.S. at 589;
 Miller v. United States, 357 U.S. 301, 306-309, 313 (1958).  See also
Ker v. California, 374 U.S. 23, 47-53 (1963) (opinion of Brennan, J.).
 The rule embodies "'the reverence of the law for the individual's
right of privacy in his house.'" Sabbath, 391 U.S. at 589, quoting
Miller, 357 U.S. at 313.  Of course, a valid search warrant authorizes
the officer to invade that privacy, and the individual has no right
either to postpone the execution of the warrant or to refuse
admittance to the officer.  See United States v. Bustamante-Gamez, 488
F.2d 4, 11 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974).

   Section 3109 is thus simply designed to regulate the manner in
which a warrant may be executed, by establishing the general rule that
an officer may not make a sudden, unannounced intrusion into a home.
See Sabbath, 391 U.S. at 590.  The statutory procedures provide the
occupant with an opportunity to admit the officer voluntarily (as was
done here) while, at the same time, reducing the likelihood for
violent confrontations that might ensue following a forcible,
unannounced entry.  See Miller, 357 U.S. at 313 & n.12;  Sabbath, 391
U.S. at 389.

   Despite the fact that the agents complied with Section 3109 at the
wooden door before entering respondent's apartment, the court of
appeals held that the agents violated the statute by not giving notice
of their authority and purpose prior to opening the iron gate.  The
court reasoned that the alcove area between the gate and the wooden
door was a part of the apartment in which respondent enjoyed an
expectation of privacy and security, and that the forcible opening of
the gate contravened the statutory policy of avoiding needless
destruction of private property.  App. A, infra, 4a-5a, 7a.  The
court's reasoning is seriously flawed.

   We submit at the outset that the court erred in its determination
that respondent had a legitimate expectation of privacy in the alcove
area.  It is settled that an individual has no cognizable privacy
interest in that which is fully exposed to public view.  See, e.g.,
United States v. Knotts, No. 81-1802 (Mar. 2, 1983);  Katz v. United
States, 389 U.S. 347, 351 (1967).  As the photographic exhibits show
(see note 4, supra), the iron gate provided respondent with no privacy
in the alcove;  any passerby in the common hallway of the building
could look through the gate and see the entire area.

   Quite apart from any theoretical analysis of expectations of
privacy, which are largely overcome by the warrant itself, the court
of appeals fundamentally misconstrued the statute in extending its
reach to a structure such as the alcove gate in this case.  Section
3109 requires an officer executing a warrant to give notice of his
authority and purpose (and to wait until he is refused admittance)
before breaking open "any outer or inner door * * * of a house." It
seems to us rather obvious that the term "outer door" in the statute
does not embrace an exterior gate, such as the one involved here, but
instead is used to distinguish the door granting access to the
interior of a residence from doors within a residence separating one
room from another, which also may not be "broken" without a knock and
announcement.  See 2 W. LaFave, Search and Seizure, Section 4.8(c), at
131 (1978).  This construction is fully consonant with the statute's
primary purpose of ensuring that an occupant's right to privacy in his
dwelling is not invaded without warning.  See Sabbath, 391 U.S. at
590.  /7/

   Our reading is also consistent with the statute's secondary purpose
of preventing violent confrontations between officers and the
occupants of the residence.  See Miller, 357 U.S. at 313 n.12;
Sabbath, 391 U.S. at 589.  The officers' safety may be seriously
threatened if, following announcement, they must attempt to break
through a series of exterior gates and doors to quell a violent
response.  The occupants, should they choose to resist, will have
additional time to arm and barricade themselves.  By the same token,
if the officers experience unnecessary delays in entering the
dwelling, they will find it more difficult to seize weapons and subdue
the occupants.  Law enforcement officers should not be required to
confront these additional risks when executing a warrant.  /8/

   In addition, requiring the officers to give notice at an exterior
gate will diminish the effectiveness of a search by giving the
residents a greater opportunity to destroy evidence or flee.  Unlike
officers who knock and announce at the front door of a dwelling,
officers who announce at an exterior gate will be unable to hear
sounds indicative of destruction of evidence or flight.  Their ability
to judge when a forced entry is necessary will be impaired.  /9/

   In sum, the knock and announce provisions of Section 3109 apply at
the "outer doors" of a dwelling, but do not require law enforcement
officers to give notice of their authority and purpose at an exterior
gate that does not provide direct access to the interior living areas
of the dwelling.  By giving proper notice at the "outer door" prior to
entering respondent's apartment, the agents fully satisfied the
requirements of Section 3109.  /10/

   The court of appeals also stated that the opening of the iron gate
violated the statutory policy of protecting private property from
needless destruction.  This conclusion is also unfounded.  The record
provides no support for the court's assumption that the gate was
damaged by the forced entry.  /11/ In any event, whatever minimal
damage there may have been to the gate does not justify the court of
appeals' egregiously excessive response of suppressing evidence seized
pursuant to a valid warrant following the agents' compliance with the
statutory procedures.  /12/ It is to the court's imposition of this
suppression sanction that we now turn.

   2.a. It is well settled that suppression is not invariably required
whenever evidence is obtained by law enforcement officers following
the violation of a constitutional or statutory standard.  Instead,
this Court has held that, in order to justify suppression, the
evidence at issue must be the "fruit" of the illegal conduct.  In
determining whether evidence is a "fruit" of illegal conduct, the
Court has eschewed a simplistic "but for" test of causation.  See
Brown v. Illinois, 422 U.S. 590, 598, 603 (1975);  Wong Sun v. United
States, 371 U.S. 471, 487-488 (1963).  Rather, as the Court explained
in Wong Sun,

      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. at 488, quoting from J. Maguire, Evidence of Guilt 221
(1959).  See also Rawlings v. Kentucky, 448 U.S. 98, 106-110 (1980);
United States v. Ceccolini, 435 U.S. 268, 274 (1978).

   Here, the violation, if any, of Section 3109 occurred when the
agents opened the iron gate and entered the alcove area without first
giving notice of their authority and purpose.  But none of the
evidence at issue was obtained through exploitation of the entry into
the alcove.  The agents found no evidence in the alcove, and they
complied with the statute before entering the apartment to execute the
warrant.  Thus, the evidence found inside the apartment was not
obtained by "exploitation" of the violation.  On the contrary, the
agents quickly rectified any error by giving proper notice at the
front door to the apartment.  In response to this notice, respondent's
son opened the door and allowed the agents to enter peaceably.  These
intervening events fully dissipated the taint arising from the initial
illegality.  /13/

   The court of appeals rejected the government's "fruits" analysis,
concluding that the unlawful entry into the alcove did not constitute
"two separate searches" but "was instead one continuous law
enforcement activity," and that "(t)he entry at the solid door
occurred immediately after the forced entry and was made possible by
that entry." App. A, infra, 8a.  But the court's analysis fails to
focus on the precise nature of the alleged violation.  Although there
was only one "search" of respondent's apartment, the search itself --
which was conducted pursuant to a valid warrant -- was not unlawful.
Nor was the entry into respondent's apartment unlawful in and of
itself.  The only aspect of the agents' conduct that was even arguably
unlawful was the entry into the alcove -- and that entry did not
result in the discovery of any evidence.  Moreover, the temporal
proximity of the initial violation to the entry into the apartment
does not support the court's conclusion.  On the contrary, the agents'
announcement of their purpose and authority almost immediately after
the initial violation ensured that the evidence subsequently seized
inside the apartment was not come at by exploitation of the violation.

   Similarly, there is no basis to the court of appeals' conclusion
that the entry into the apartment was "made possible" by the initial
entry.  To begin with, as we have noted above, the Court has
explicitly rejected this type of "but for" analysis in this context.
In any event, the entry into the apartment was "made possible" not by
the initial entry into the alcove, but by the opening of the front
door to the apartment by respondent's son in response to the agents'
announcement of their authority and purpose in compliance with Section
3109.

   Finally, the court of appeals erred in failing to consider the
"purpose and flagrancy of the official misconduct," which this Court
has held is of particular relevance in considering whether evidence
has been obtained by exploitation of illegal police conduct.  Brown v.
Illinois, supra, 422 U.S. at 604.  See also, e.g., Rawlings v.
Kentucky, supra, 448 U.S. at 109-110.  Prior to executing the warrant,
the agents received information that there were weapons inside
respondent's apartment and that the occupants should be considered
armed and dangerous.  The unannounced entry into the alcove was
undertaken as a protective measure by the agents, who were advised to
proceed cautiously when approaching the apartment.  Given the fact
that the agents did announce their purpose and authority before
peaceably entering the apartment, it is clear that the conduct of the
agents here -- assuming it was illegal at all -- "does not rise to the
level of conscious or flagrant misconduct requiring prophylactic
exclusion of (evidence seized pursuant to a valid warrant)." Rawlings
v. Kentucky, supra, 448 U.S. at 110.

   b. Even assuming that the evidence at issue can be said to
constitute the "fruits" of the agents' violation of Section 3109,
suppression should not be required for a technical violation of a
statute where constitutional concerns are not implicated.  Here, the
agents gave notice prior to entering respondent's apartment.  At
worst, they committed a technical infraction of Section 3109 by giving
notice at the wrong door.  This minor infraction does not call for the
inflexible application of an exclusionary sanction, particularly since
Section 3109 itself does not expressly provide for such a sanction.

   This Court has noted that suppression is not invariably required
for every insubstantial statutory violation, even where the statute
does include an exclusionary remedy.  See United States v. Donovan,
429 U.S. 413, 432-434 (1977);  United States v. Chavez, 416 U.S. 562,
574-575 (1974);  United States v. Giordano, 416 U.S. 505, 527 (1975).
As the Second Circuit remarked, in determining whether inconsequential
violations of Rule 41(c) of the Federal Rules of Criminal Procedure
called for suppression, "courts should be wary in extending the
exclusionary rule in search and seizure cases to violations which are
not of constitutional magnitude." United States v. Burke, 517 F.2d
377, 386 (2d Cir. 1975) (footnote omitted).  The court in Burke
concluded that evidence should not be suppressed unless the defendant
was "prejudiced" by the infraction in the sense that the search would
not otherwise have occurred or would not have been so abrasive if the
rule had been followed, or where there is evidence of an "intentional
and deliberate disregard" of the rule.  Id. at 386-387.  /14/

   Here, the agents' technical violation of the statute did not
infringe any of respondent's constitutional rights.  To the extent
that the Fourth Amendment may require officers to give notice before
entering a dwelling to conduct a search (see Ker v. California, supra,
374 U.S. at 38 (opinion of Clark, J.);  id. at 54-59 (opinion of
Brennan, J.)), the agents satisfied that requirement.  In addition,
neither of the justifications for suppression mentioned in Burke is
present in this case.  The unannounced entry through the gate did not
make the search of the house more "abrasive." The agents gave notice
of their authority and purpose before they were voluntarily admitted
to the residence, where they conducted the search.  Of course, the
search itself was authorized by the valid warrant and clearly would
have taken place if the agents had first knocked at the gate rather
than at the door.  Respondent had no right either to exclude the
agents from his apartment or to prevent them from executing the valid
warrant.  See United States v. Bustamante-Gamez, supra, 488 F.2d at
11.  /15/ Furthermore, the fact that the agents gave notice of their
authority and purpose at the front door to the apartment is clear
evidence that they did not act with an "intentional and deliberate
disregard" of Section 3109.  /16/

   In short, if any statutory violation occurred here, it was
insubstantial in nature.  The court of appeals' imposition of the
harsh sanction of exclusion was grossly disproportionate to the
infraction and should not be permitted to stand.

   3. We recognize that the court of appeals' decision on the Section
3109 issue does not appear to conflict with the decisions of this
Court or of the other courts of appeals.  Furthermore, we realize that
the court's Section 3109 holding turns on a peculiar configuration of
external barriers to entry and thus may not directly control a large
number of other cases.  Accordingly, we do not wish to exaggerate the
practical importance of the decision on the Section 3109 issue.  On
the other hand, the court's treatment of the "fruits" issue is plainly
contrary to principles settled by the decisions of this Court.  The
court below reached its result, which we believe is entirely
unwarranted, by adopting an analysis that is inconsistent with the
approach of this and other courts in limiting the availability of the
exclusionary rule to those situations in which its purposes --
principally the deterrence of police misconduct -- are best served.
The decision thus reflects the tendency of some courts to apply the
exclusionary rule in a mechanical fashion, without regard to the
societal costs entailed.  We note that the Court has before it a
number of cases that present questions concerning the applicability of
the exclusionary rule in the context of constitutional violations.
/17/ Although the exclusionary rule questions in this case do not
arise in a constitutional setting, they present issues of fundamental
concern to the effective administration of criminal law in the federal
system.

   As we have shown in this petition, the decision of the court of
appeals is methodologically unsound, misconstrues Section 3109, and is
contrary to a proper understanding of both the "fruit of the poisonous
tree" doctrine and the policies underlying the judicially-created
exclusionary rule.  We believe the errors of the court of appeals are
sufficiently patent that the Court may view this case as appropriate
for summary reversal.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ELLIOTT SCHULDER

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   SEPTEMBER 1983

   /1/ The indictment also charged co-defendants Joseph Anthony Marino
and Charles Richard Moreno, respondent's son, with conspiracy to
possess cocaine with intent to distribute it.  In addition, respondent
and Marino were charged with one count of distributing cocaine, in
violation of 21 U.S.C. 841(a)(1), and respondent was charged with
assaulting a federal officer, in violation of 18 U.S.C. 111, and with
five weapons offenses, in violation of 18 U.S.C. App. 1202(a)(1).
Following respondent's conviction on the cocaine possession and
conspiracy charges, the additional counts against him were dismissed.
Joseph Marino pleaded guilty to a superseding information charging him
with use of a telephone to facilitate the distribution of cocaine, in
violation of 21 U.S.C. 843(b);  he was sentenced to imprisonment for
one year and one day.  Charles Moreno pleaded guilty to simple
possession of cocaine, in violation of 21 U.S.C. 844, and was
sentenced to two years' probation.

   /2/ "E.R." refers to the excerpt of record in the court of

   appeals.

   /3/ The affidavit supporting the issuance of the warrant is
reproduced at E.R. 28-32.  In addition to relating the details of the
cocaine transaction described above, the affidavit alleged, inter
alia, that respondent was currently free on bail on a state narcotics
charge and that the agents had received at least four anonymous
telephone calls regarding suspected drug trafficking out of
respondent's apartment.  The calls indicated that respondent's
apartment was visited on a daily basis by approximately 20 to 25
persons, each of whom would remain for only two to five minutes before
departing.  One caller stated that he had heard respondent brag about
his drug dealing.  The information concerning the numerous visitors to
respondent's apartment was verified by agents who observed respondent
admit at least 11 persons to his apartment within a one hour and ten
minute period;  each visitor remained inside for two to five minutes.
In the agents' experience, this type of heavy traffic is common in
places used for sales of drugs.  E.R. 30-31.

   Although respondent argued below that the affidavit failed to
establish probable cause, the district court rejected this claim (App.
B, infra, 9a), and the court of appeals did not address the probable
cause issue.  App. A, infra, 8a.  Accordingly, for purposes of this
petition, it must be assumed that the search warrant for respondent's
apartment was valid.

   /4/ Photographs showing the arrangement of the gate and alcove area
were introduced into evidence at the suppression hearing.  Gov't Exhs.
1-4;  Tr. 10, 12 ("Tr." refers to the transcript of the suppression
hearing).

   /5/ The court of appeals rejected the district court's
determination that the unannounced entry into the alcove was justified
because any delay resulting from compliance with Section 3109 at the
locked gate would have permitted occupants of the apartment to destroy
contraband.  App. A, infra, at 5a-6a.  The court noted that the danger
of destruction of evidence exists in every narcotics investigation and
that there was no specific evidence here (such as "sounds of running
feet") to support the suspicion that contraband would be destroyed.
Id. at 6a.  In addition, the court refused to consider whether the
unannounced entry at the gate could be excused because the officers
suspected that respondent was armed.  Id. at 6a n.4.  The court
expressed the view that the district court "apparently did not credit"
the testimony that respondent was believed to be armed and it stated
that the government "ha(d) not renewed that claim * * *." Ibid.

   /6/ The court of appeals did not specifically address the
government's related argument that, in light of the fact that the
agents clearly complied with Section 3109 at the front door of
respondent's apartment, the alleged violation that occurred at the
gate was at most a technical statutory violation that did not justify
the drastic remedy of suppressing the evidence seized in the
warrant-authorized search of the apartment.  See Gov't C.A. Br. 26.

   /7/ Although the wooden door leading directly into respondent's
apartment was opaque, we recognize that Section 3109 does not apply
solely to opaque doors.  See App. A, infra, 4a.  If, for example, only
a screen or glass door separates the agents from the interior of a
house, the agents should knock and announce at that door prior to
breaking such a door to secure entry.  The point we wish to emphasize
here -- and the one that the court of appeals overlooked -- is that
the door that actually separates the interior living area of a
dwelling from the outside is the "outer door" at which the statutorily
required notice ordinarily should be given.

   /8/ These potential dangers are illustrated by this case, where the
agents had reason to believe that respondent was armed and dangerous.
If the agents had given notice from outside the gate and respondent
had opened the wooden door with a gun in his hand, the agents would
not have been in a position to seize the gun and neutralize the
threat.  Instead, respondent would have been able to prevent the
agents from entering his apartment and executing the warrant.  By
knocking and announcing at the solid door instead of at the gate, the
agents were in a better position to prevent (or deal with) a violent
response.  (The court of appeals erred in concluding (App. A, infra,
6a n.4) that the district court did not credit the testimony that
respondent was believed to be armed.  See Tr. 34.  The district court
apparently determined that there was no need to rely on that testimony
in view of its finding that respondent had no legitimate privacy
interest in the alcove area.)

   /9/ The court of appeals' assertion (App. A, infra, 6a) that there
was no specific evidence in this case supporting the suspicion that
contraband was being destroyed is therefore entirely beside the point.
 The decision below virtually assures that agents in similar
situations will not be able to hear the telltale "sounds of running
feet" or other suspicious noises that are indicative of the presence
of exigent circumstances.  As a practical matter, therefore, the only
"privacy interest" that the decision below protects is that of
occupants who are bent on either destroying evidence or resisting
entry.

   /10/ In reaching its contrary conclusion, the court of appeals
relied on its prior decision in United States v. Fluker, 543 F.2d 709
(1976).  In Fluker, the court held that the defendant had a legitimate
expectation of privacy in the common hallway that his apartment shared
with another apartment.  The court thus ruled that the agents were
required to knock and announce at the exterior door of the building
leading to the common hallway, and that they violated Section 3109
when they gave notice instead at the door to the defendant's
individual apartment.  Id. at 715-717.  Like the decision here, the
decision in Fluker is patently incorrect.  "(W)hen the police intend
to execute a warrant describing a particular apartment in an apartment
building or a particular room in a rooming house, the notice must be
given before entry of the door leading into the described premises
even though that door is literally an 'inner door.'" 2 W. LaFave,
Search and Seizure, supra, Section 4.8(c), at 131.

   /11/ The evidence showed that the agents used a crowbar to separate
the bars of the gate slightly, to a point at which the lock no longer
"caught." Tr. 11, 18.  Respondent has never claimed that the gate was
damaged, and the photographs, which were taken on the night of the
search (Tr. 37), show no damage to the gate.  Gov't Exhs. 1-4.

   /12/ The inappropriateness of suppressing the evidence against
respondent is further underscored by the absence of any proof that the
gate was in fact respondent's property.

   /13/ Segura v. United States, No. 82-5298, cert. granted (Feb. 22,
1983), presents the somewhat similar question whether evidence
discovered and seized pursuant to a valid, untainted search warrant
should be suppressed because the officers entered the premises
unlawfully before the warrant had been issued.  If the preliminary
illegal entry in Segura does not require suppression of the evidence
subsequently seized pursuant to the valid warrant, then clearly
suppression should not be required here.  Even if the Court were to
conclude that suppression is required in Segura, however, a like
result would not be compelled here.  In several respects, the facts of
the instant case weigh more strongly against suppression than do the
facts in Segura.  In Segura, the initial illegal entry was into the
apartment itself, an area in which the residents undeniably had a
legitimate expectation of privacy.  Here, in contrast, the entry, even
if illegal, was into a wholly visible alcove in which the residents
had little, if any, cognizable privacy interest.  Moreover, the
officers in Segura had no warrant when they first entered the
dwelling, whereas here the agents were armed with a warrant and
clearly were entitled to enter both the alcove and respondent's
apartment.  Finally, unlike in Segura, there was no constitutional
violation here;  at worst, there was a technical statutory infraction.

   /14/ The Burke test has been adopted by most of the other circuits.
 See, e.g., United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981);
United States v. Searp, 586 F.2d 1117, 1124-1125 (6th Cir. 1978),
cert. denied, 440 U.S. 921 (1979);  United States v. Mendel, 578 F.2d
668, 673 (7th Cir.), cert. denied, 439 U.S. 964 (1978);  United States
v. Gitcho, 601 F.2d 369, 372 (8th Cir.), cert. denied, 444 U.S. 871
(1979);  United States v. Vasser, 648 F.2d 507, 510-511 (9th Cir.
1980), cert. denied, 450 U.S. 928 (1981);  United States v.
Pennington, 635 F.2d 1387, 1389-1390 (10th Cir. 1980), cert. denied,
451 U.S. 938 (1981).

   /15/ See also Ker v. California, supra, 374 U.S. at 39 (opinion of
Clark, J.), quoting from People v. Maddox, 46 Cal. 2d 301, 306, 294
P.2d 6, 9, cert. denied, 352 U.S. 858 (1956):

      Suspects have no constitutional right to destroy or dispose of
      evidence, and no basic constitutional guarantees are violated
      because an officer succeeds in getting to a place where he is
      entitled to be more quickly than he would, had he complied with
      section (3109).

   /16/ The court in Burke noted that, in light of Miller v. United
States, supra, it has generally been understood that the exclusionary
rule applies to violations of Section 3109.  517 F.2d at 386 n.13.
But this case, unlike Miller (or Sabbath, where the Court also
suppressed evidence after finding a violation of Section 3109), is one
in which the agents complied with Section 3109 before entering the
premises.  Thus here, as in Burke, the violation, if any, was
insubstantial and does not warrant suppression.

   /17/ In addition to Segura v. United States, supra, which raises a
"fruits" issue (see note 13, supra), the Court has granted review in
three cases to consider whether it should adopt a so-called "good
faith" exception to the Fourth Amendment's exclusionary rule.  See
Massachusetts v. Sheppard, cert. granted, No. 82-963 (June 27, 1983);
Colorado v. Quintero, cert. granted, No. 82-1711 (June 27, 1983);
United States v. Leon, cert. granted, No. 82-1771 (June 27, 1983).

   Appendix Omitted