Submitted: April 18, 2019
from United States District Court for the Western District of
Missouri - Joplin
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
Sergio Diaz-Ortiz seeks, for the first time on appeal,
suppression of evidence obtained after an alleged violation
of the knock-and-announce rule under the Fourth Amendment and
18 U.S.C. § 3109. Applying plain-error review, we affirm
the judgment of the district court.
16, 2016, officers with the Ozark Drug Enforcement Team and
the Bureau of Alcohol, Tobacco, Firearms and Explosives took
Justin Thurston, a methamphetamine dealer, into custody.
Prior to being taken into custody, Thurston told the officers
that his supplier, whom he knew as "Pedro," had a
room at the Microtel Hotel, located in Joplin, Missouri.
Thurston also indicated that he had seen a large amount of
methamphetamine in the room earlier that day. The officers
then drove to the Microtel Hotel and contacted hotel
management. They eventually learned that the man Thurston
identified as "Pedro" was actually Diaz-Ortiz and
that Diaz-Ortiz was renting room 239. Based upon the
information provided by Thurston, the officers applied for a
waiting for the search warrant, the officers learned that
Thurston had been released from custody. The officers became
worried that Thurston would alert Diaz-Ortiz to their
presence and that Diaz-Ortiz would begin destroying evidence.
They therefore decided to enter the room and secure
Diaz-Ortiz to prevent the potential destruction of evidence.
The officers went to room 239 and knocked on the door.
Hearing Diaz-Ortiz approach the door, they used a key card
obtained from hotel management and entered. Upon entering,
the officers detained Diaz-Ortiz and advised him of his
Miranda rights. They did not search the room.
According to the district court, Diaz-Ortiz implied to the
officers that he did not wish to speak with them until he had
a lawyer present. Officers engaged in conversation with
Diaz-Ortiz while they were waiting for the search warrant,
however, and Diaz-Ortiz told them that there were three
pounds of methamphetamine in the room.
hours after entering the room and detaining Diaz-Ortiz, more
officers arrived with a signed search warrant. Only then did
the officers search the room. Their search uncovered:
approximately three pounds of methamphetamine, $10, 331 in
cash, a loaded handgun, and sample amounts of heroin and
cocaine. Diaz-Ortiz was arrested and transported to the
Newton County Jail.
suppression hearing, Diaz-Ortiz argued that the officers
conducted an unlawful, warrantless entry into room 239 and
that any evidence or statements obtained as a result of that
entry should be suppressed. The district court concluded that
the officers' entry was unlawful and suppressed
Diaz-Ortiz's unprompted statement regarding the amount of
methamphetamine in the room. The district court, however, did
not suppress the evidence discovered during the search of the
room. The court held that the search warrant, which was
issued based solely on evidence obtained prior to the
officers' unlawful entry, was an independent source of
the evidence obtained during the search, and thus suppression
was not warranted.
appeal, Diaz-Ortiz argues for the first time that the search
evidence should have been suppressed because it was obtained
after an alleged violation of the knock-and-announce rule
under the Fourth Amendment and 18 U.S.C. § 3109.
Standard of Review
Diaz-Ortiz did not timely raise the knock-and-announce issue
before the district court, we review his appeal for plain
error. United States v. James, 353 F.3d 606, 612
(8th Cir. 2003). "To obtain relief under a plain-error
standard of review, [Diaz-Ortiz] must show that there was an
error, the error is clear or obvious under current law, the
error affected [his] substantial rights, and the error
seriously affects the fairness, ...