Appeals court backs up police in no-knock search

Tuesday, March 30, 2004 | 9:53 a.m.

CARSON CITY -- A federal appeals court said North Las Vegas Police were justified in using a battering ram to knock in the door of a home where an armed man was suspected of selling drugs.

The 9th U.S. Circuit Court of Appeals rejected the claim of Michael Bynum that police were required to "knock and announce" their presence when executing a search warrant.

Bynum was sentenced to 77 months in prison after a conditional guilty plea to one count of being a felon in possession of firearms. Bynum retained the right to appeal, and he did appeal, on the grounds that U.S. District Judge Philip Pro should have suppressed as evidence the pistol and semi-automatic shotgun police found when they raided his apartment.

A police informant allegedly purchased rock cocaine twice at the Bynum apartment in January 2002. On one purchase Bynum allegedly was armed. Undercover Detective Donald Pearson was then ordered to make a buy, according to court records.

Pearson knocked at the back door of the apartment in February 2002 and Bynum answered wearing only white tube socks and holding a chambered semi-automatic pistol at his side, according to police records. After the purchase, Bynum, still armed, followed the detective apparently looking for evidence of surveillance, police said.

Seven hours later, after securing a search warrant, police detonated two Omniblast devices outside a window before using a battering ram to knock in the front door of the apartment. They did not knock and they announced "Police, search warrant" only after their forcible entry.

The officers found marked money from the undercover buy and the two guns. They did not discover any drugs.

Bynum appealed on grounds the officers should have knocked.

But the court, in an opinion written Friday by Judge Richard Tallman, said police were justified in entering the apartment before announcing their presence because of Bynum's "unusual and threatening behavior with his pistol."

Tallman said: "To lawfully dispense with the knock and announce requirement, the government must demonstrate that the presence of firearms raised a legitimate concern for officer safety."

In this case, the court said, the facts that Bynum brandished his firearm in undercover buys and displayed an "irregular and threatening behavior" gave the police reason to break in the way they did.

But the court reaffirmed other decisions stating that the mere presence of a gun does not mean police do not have to knock and identify themselves.

The court also said the police were justified, in part, in using the unannounced and forced entry because they believed that Bynum might dispose of the small rocks of crack cocaine if they had knocked and identified themselves prior to entering the apartment.