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State v. Neiss

Supreme Court of Montana

June 4, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
PATRICK O. NEISS, Defendant and Appellant.

          Submitted on Briefs: August 29, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 14-627 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana

          Scott Twito, Yellowstone County Attorney, Billings, Montana

          Justice Laurie McKinnon delivered the Opinion of the Court.

          OPINION

          LAURIE MCKINNON, JUDGE.

         ¶1 A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted Patrick Neiss of evidence tampering and deliberate homicide for the murder of his neighbor, Frank Greene. Neiss appeals, raising three issues:

1. Did the District Court properly deny Neiss's motion to suppress evidence seized pursuant to a search warrant that did not explicitly authorize a no-knock entry?
2. Did the District Court properly deny Neiss's motion to suppress evidence obtained through a forensic search of his computer?
3. Did the District Court abuse its discretion by instructing the jury to choose the "most reasonable" interpretation of circumstantial evidence when there are two competing interpretations-one that supports innocence and one that supports guilt?

         ¶2 We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 What began as a friendship between neighbors founded on a mutual love of cars grew increasingly bitter after Neiss began to suspect Greene had stolen his prized Camaro motor. Neiss's motor went missing in 2007, but beginning around 2011, Neiss became convinced Greene had stolen it. Neiss spoke often about the stolen motor and his suspicions of Greene, and he was "pretty much obsessed with it" as witnesses would later testify. Between 2011 and 2013, the two men had several disagreements and altercations regarding the motor. Neiss became openly hostile toward Greene, even telling his girlfriend at the time that he would like to "shoot" Greene. In September 2012, Neiss told a deputy county sheriff that he considered the sheriff's office to be accomplices of Greene and was angry they had never located the stolen motor. Around the same time, Neiss moved a large water tank to the top of a hill overlooking Greene's property and spray-painted the word "MOTOR" on it in red paint.

         ¶4 The situation continued to escalate when, during the fall of 2012, Neiss angrily confronted Greene's cousin about the motor. Greene's cousin told Neiss he did not want to become involved with the ongoing dispute, and Neiss responded "you got two weeks." Around February 2013, one of Greene's friends heard Neiss yell expletives at Greene as he drove by Greene's home. On March 7, 2013, another neighbor of Greene's overheard Greene heatedly arguing with an unidentified person. The next day, Greene's girlfriend, Manda Schaible, who lived with Greene at the time, found him in his shop, lying face down in a pool of blood. He had been shot and killed.

         ¶5 Schaible called 911 immediately. She told the dispatcher Neiss could have been Greene's murderer but she was unsure. About two or three minutes into the call, she saw Neiss's Chevy pickup slowly drive by her home.

         ¶6 Officers arrived at the scene shortly after. Although they never located a murder weapon, they found five .40 caliber shell casings and what appeared to be fresh shoeprints in the soil near Greene's shop leading to and from the direction of Neiss's property. Officers then located and detained Neiss at a nearby gas station.

         ¶7 A few days later, Detective Shane Bancroft applied for a search warrant for Neiss's property (March 2013 Warrant). In the warrant application, Detective Bancroft included detailed information connecting Neiss to Greene's death, including evidence from the crime scene investigation, witness statements, prior police reports, and court records. Detective Bancroft stated he had probable cause to believe officers would find evidence on Neiss's property of deliberate homicide and-because officers were unable to locate the murder weapon-evidence tampering. Detective Bancroft believed officers would find evidence including firearms, ammunition, spent shell casings, silencers, biological material, and shoe impressions consistent with those found at the crime scene. Detective Bancroft also described the following items as potential evidence: "[c]ell phones, IPads, computers and/or other electronic devices and the information contained therein"; and "[i]ndicia of Occupancy/Ownership in the form of documents, receipts, statements, mail, billing statements, letters, notes, [and] vehicle registration/titles." Noting the violent nature of the crime, the known prior altercations between Neiss and Greene, Neiss's belief that deputy sheriffs were Greene's accomplices, and a prior federal firearms conviction Neiss received in 2000, Detective Bancroft also requested authorization to execute a no-knock entry-an exception to the knock-and-announce warrant execution requirement. While the ultimate warrant signed by the judge provided for seizure of the evidence Detective Bancroft listed, it left out any authorization for a no-knock entry.

         ¶8 At 4 a.m. on March 14, 2013, officers executed the search warrant at Neiss's property with SWAT team assistance. Neiss's property was large and had a long gravel road leading to his home, which the officers drove across with their vehicle lights off under the cover of darkness. After parking the vehicles, multiple SWAT team members exited them and stealthily approached Neiss's house. Then, over the course of twelve-to-fifteen seconds, the SWAT team entered Neiss's sunporch, deployed a flashbang device outside his front door, and entered his home, all while sheriff's deputies outside Neiss's residence activated their vehicle lights and announced their presence over their loudspeakers.

         ¶9 After they gained entry to Neiss's home, the officers executed the search warrant. The officers seized multiple items from Neiss's home and the surrounding area, including three computers and numerous .40 caliber shell casings. The officers did not search the information on the computers at that time.

         ¶10 On August 12, 2014, officers received a warrant for Neiss's arrest and a warrant for a second search of Neiss's residence.[1] Officers located an item thought to be a silencer for a firearm. The item appeared to be the body of a Maglite flashlight with gunshot residue coating its interior. On May 15, 2015, nearly one year after his arrest and two years following the March 2013 seizure of his computers, Neiss filed a motion to suppress the results of the March 2013 search, arguing the warrant lacked probable cause and officers failed to knock and announce their presence before executing it. On July 22, 2015, the District Court issued an order denying the motion. Following seizure of Neiss's computers in March 2013 and continuing until the District Court's July 2015 order, Neiss's computers were in the possession and control of law enforcement, who did not search or otherwise disturb their contents. Law enforcement kept the computers in a manner that protected them from any physical tampering or environmental degradation. While still lawfully in possession of the computers, officers applied for a third search warrant on August 12, 2015-this time to search the computers themselves. Detective Shane Bancroft applied for the warrant and averred, in pertinent part, as follows:

During the search of the residence on March 14, 2013, Investigators noted computer printouts that would indicate that someone had been actively using the computer. Additionally, Investigators were aware that on at least one occasion the Defendant had written a letter to himself that detailed his history with Greene. While the letter was handwritten; Investigators thought it was possible that Neiss may have kept a journal or log of events on one or more of the computers.
Finally, during a subsequent search of the property at 7200 Central Avenue on August 12, 2014 (pursuant to a Search Warrant signed by Judge Todd earlier in the day), Investigators located an item we thought could possibly have been used as a silencer. The item was what appeared to be the body of a mag light style flashlight. The interior of the item had residue inside it. Later when the suspect's son was interviewed he stated that his father had attached the item to the end of a firearm in the past. Additionally, the Montana Crime lab tested the item and determined that there were substances consistent with gunshot residue. Investigators were interested to know if the computers had been used to obtain information about silencers or other firearms related questions. Investigators noted that at least five rounds had been fired in the Homicide, yet no one in the home or neighborhood reported hearing any gun shots.
Investigators are asking for the search warrant to be granted to attempt to analyze the devices for data that may be related to the homicide, the planning of the homicide, and the investigation of crimes, including but not limited to, the homicide. Again, the computers were seized pursuant to a search warrant signed by Judge Todd on March 13, 2013. Due to the nature of this case and the development of additional information, your affiant is now seeking another search warrant out of an abundance of caution based on information contained herein.

         Judge Todd signed the third warrant to search the three computers seized from Neiss's home for evidence connecting Neiss to Greene's death (August 2015 Warrant). Detective Bancroft executed the warrant, and his search revealed that, on one computer, a user had searched the internet for general information and videos about firearm suppressors and, more specifically, how to manufacture homemade suppressors.

         ¶11 After the August 2015 computer search, Neiss filed a second motion to suppress, this time contending officers lacked probable cause to search the computers and the delay between seizing and searching the computers-well over two years-was unreasonable. The District Court also denied the second motion.

         ¶12 In January 2016, the District Court held a seven-day jury trial. Throughout the trial, the State presented evidence about Neiss and Greene's history; Neiss's behavior the night of the murder; gunshot residue found on Neiss's hand and face the night of the murder; the shoeprints found on Greene's property; the .40 caliber shell casings found at the crime scene and on Neiss's property; a forensic examination indicating the casings at both locations came from the same weapon; and, because neighbors testified they heard no gunshots or unusual sounds the night of the murder, the computer search history and testimony from Neiss's son that Neiss had used and manufactured firearm suppressers. When settling jury instructions, the State sought to include an instruction regarding the interpretation of circumstantial evidence. Neiss objected to the instruction, but the District Court overruled his objection and gave the instruction to the jury. At the conclusion of trial, the jury convicted Neiss of deliberate homicide and evidence tampering. He appeals.

         STANDARD OF REVIEW

         ¶13 We review a district court's denial of a motion to suppress to determine whether its findings of fact are clearly erroneous and whether its interpretation and application of the law is correct. State v. Kenfield, 2009 MT 242, ¶ 15, 351 Mont. 409, 213 P.3d 461.

         ¶14 We review a district court's legal conclusion about whether a search warrant is sufficiently particular de novo. State v. Seader, 1999 MT 290, ¶ 4, 297 Mont. 60, 990 P.2d 180.

         ¶15 A district court has broad discretion when giving jury instructions. We review the court's decision to give an instruction for abuse of discretion. State v. Sanchez, 2017 MT 192, ¶ 7, 388 Mont. 262, 399 P.3d 886. We review the instructions as a whole to determine whether they fully and fairly instruct the jury on the applicable law. Sanchez, ¶ 7. We will not reverse unless a mistake in instructing the jury prejudicially affected the defendant's substantial rights. State v. Kaarma, 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609.

         DISCUSSION

         ¶16 1. Did the District Court properly deny Neiss's motion to suppress evidence seized pursuant to a search warrant that did not explicitly authorize a no-knock entry?

         ¶17 Neiss argues the State violated his rights under the Fourth Amendment of the United States Constitution and Article II, Sections 10 and 11, of the Montana Constitution, when the officers executed the first search warrant because they failed to abide by Montana's knock-and-announce rule. The knock-and-announce rule requires law enforcement officers, when executing a search warrant, to knock and announce their presence and wait a reasonable amount of time before entry. State v. Hill, 2008 MT 260, ¶ 27, 345 Mont. 95, 189 P.3d 1201; State v. Anyan, 2004 MT 395, ¶¶ 20, 64, 325 Mont. 245, 104 P.3d 511; see United States v. Banks, 540 U.S. 31, 38-40, 124 S.Ct. 521, 526-27 (2003). The State responds with the following three arguments: (1) the District Court did not err when it concluded the officers announced their presence and waited a reasonable amount of time before entering Neiss's house; (2) the officers did not need preauthorization from a judge for a no-knock entry; and (3) the proper remedy for a violation of the knock-and-announce rule is not exclusion of the evidenced obtained through the search. We address, first, our precedent from Anyan, ¶ 63, which requires officers to obtain preauthorization from a judge for no-knock entries based on circumstances known to the officers at the time of the application. Next, we address whether the March 2013 Warrant's execution was reasonable.

         A. No-knock Entry Preauthorization.

         ¶18 In Anyan, ¶ 20, we discussed the knock-and-announce rule for the first time. Relying on the United States Supreme Court's decision in Wilson v. Ark., 514 U.S. 927, 934, 115 S.Ct. 1914, 1918 (1995) [hereinafter Arkansas], we adopted the rule, holding it is an element of the reasonableness inquiry under the Fourth Amendment and-independent of the federal requirement-Article II, Sections 10 and 11, of the Montana Constitution. Anyan, ¶ 61. We also adopted federal precedent creating an exigent-circumstances exception to the knock-and-announce rule. Anyan, ¶¶ 32-33 (citing Arkansas, 514 U.S. at 934, 936, 115 S.Ct. at 1918, 1919); see also Anyan ¶¶ 34-60 (reviewing various exigent circumstances that would justify a no-knock entry). However, in Anyan this Court added a requirement nonexistent in federal jurisprudence: "When law enforcement officers contemplate a no-knock entry in executing a search warrant, that intention must be included in the application for the search warrant along with any foreknown exigent circumstances justifying the no-knock entry." Anyan, ¶ 63 (emphasis added). Thus, we created the Anyan rule: officers applying for a warrant must receive preauthorization from a judge for no-knock entries based on exigent circumstances known to the officers at the time of the application. Anyan, ¶ 63; see State v. Ochadleus, 2005 MT 88, ¶ 55, 326 Mont. 441, 110 P.3d 448.

         ¶19 When reviewing the Anyan rule with the aid of federal precedent since our decision and alongside the circumstances of this case, it has become apparent that the rule creates an unworkable standard for investigative officers and judges alike. Here, particularly, the exigent circumstances justifying a no-knock entry were known to the officers when they applied for the warrant. That is, no additional facts or developments occurred after officers obtained the warrant which would support departure from the Anyan rule and allow the officers to enter without first knocking and announcing their presence. Recognizing a violation of the Anyan rule, the parties were forced to argue extensively whether the officers knocked and announced their presence and whether they waited a reasonable time before entering. Consequently, the District Court avoided addressing the Anyan rule that a warrant "must" include preauthorization for a no-knock entry based on "foreknown exigent circumstances" by finding that the officers did knock and announce prior to their entry into Neiss's residence. See Anyan, ¶ 63. Although, based on our rationale that follows, it is unnecessary to address the District Court's findings that officers actually knocked and announced, we observe it is undisputed officers did not knock on Neiss's door prior to entry and officers employed the flashbang device once they had already entered the sunporch of Neiss's residence. Moreover, the officers' entry into the main residence occurred within a second thereafter.

         ¶20 The Court will not, however, digress down the same path as the litigants and the District Court. It is clear the District Court's findings and the parties' argument concerning whether the officers actually knocked and announced prior to entry was premised upon their recognition that the Anyan rule had been violated-that exigent circumstances justifying a no-knock entry were foreknown to the officers when they applied for the warrant but the officers did not obtain no-knock preauthorization. Absent no-knock preauthorization, officers were required to knock and announce prior to entry into Neiss's residence. Thus, the violation of the Anyan rule mandated the inquiry on whether officers knocked and announced prior to entry, even though exigent circumstances existed for officers to execute a no-knock warrant. We therefore take this opportunity to reconsider the Anyan rule.

         ¶21 When we first created the Anyan rule, we believed it fit well within the warrant application process:

This approach is consistent with our prior jurisprudence-i.e., when the right to privacy must reasonably yield to an application to search, that decision should be made by a judicial officer, and not by the police. State ex rel. Townsend v. District Court, 168 Mont. 357, 360, 543 P.2d 193, 195 (1975). And, the review of a search warrant application by an impartial magistrate ensures that a neutral and detached evaluation of the situation is interposed between the investigating officer and the private citizen. State v. Wilson, 266 Mont. 146, 149, 879 P.2d 683, 684 (1994).

Anyan, ¶ 63.

         ¶22 Our reliance on Wilson and Townsend for this proposition, however, was misplaced. In Wilson, we held "Montana law requires that an impartial magistrate must determine the existence of . . . probable cause . . . ." 266 Mont. at 149, 879 P.2d at 684 (internal quotations and citations omitted; emphasis added). In Townsend, we explained, "The requirement that the magistrate decide the existence of probable cause on the basis of facts sufficient to allow an independent determination, is imposed by Montana law to ensure that some neutral and detached evaluation is interposed between those who investigate crime and the ordinary citizen." 168 Mont. at 360, 543 P.2d at 195 (emphasis added). In both cases, we discussed how the judge's role is to assess the existence of probable cause. Importantly, however, whether probable cause exists to issue a warrant is fundamentally distinct from the issue of whether the manner of the warrant's execution is reasonable. A judge assesses the sufficiency of probable cause to authorize a warrant; law enforcement assesses the circumstances and means by which to execute the warrant in a manner that maximizes public safety, protects property, and secures evidence of a crime. Assessing the circumstances relative to executing a warrant is particularly within the expertise of law enforcement.

         ¶23 We find federal precedent helpful in understanding the deficiencies of Anyan. The Anyan rule confuses the protections of the warrant clause and reasonableness clause of Article II, Section 11 of the Montana Constitution. Foremost, the knock-and-announce rule is part of the reasonableness clause, not the warrant clause, of Article II, Section 11. Like the Fourth Amendment of the United States Constitution, Article II, Section 11, has both a reasonableness clause and a warrant clause. The reasonableness clause protects against unreasonable searches and seizures, providing, "The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures." Mont. Const. art. II, § 11. The warrant clause sets out warrant requirements, providing, "No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." Mont. Const. art. II, § 11. The warrant clause is a fundamental part of the reasonableness clause: barring limited exceptions, a warrantless search or seizure is categorically unreasonable. See State v. Ellis, 2009 MT 192, ¶ 24, 351 Mont. 95, 210 P.3d 144 ("[W]arrantless searches conducted inside a home are per se unreasonable, subject only to a few specifically established and well-delineated exceptions." (internal quotations omitted)). Accordingly, a valid warrant is only one consideration of a reasonable search: Article II, Section 11, protects citizens against "unreasonable searches and seizures"-even where officers otherwise possess a valid warrant. Mont. Const. art. II, § 11.

         ¶24 The knock-and-announce rule, like the warrant clause, is also a fundamental consideration of the reasonableness clause. However, compliance with the knock-and-announce rule is not one of the requirements of the warrant clause-the two are separate and distinct. Instead, the knock-and-announce rule evinces whether the ultimate search-the execution of the warrant-is reasonable. Regarding the federal constitution, the Supreme Court held in Banks, 540 U.S. at 35-36, 124 S.Ct. at 524-25 (2003) (quoting U.S. Const. amend. IV) (internal citations omitted):

The Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be "secure . . . against unreasonable searches and seizures." Although the notion of reasonable execution must therefore be fleshed out, we have done that case by case, largely avoiding categories and protocols for searches.

         ¶25 The knock-and-announce rule and the warrant clause are separate and distinct components of a reasonable search or seizure. Importantly, Article II, Section 10, of the Montana Constitution specifically provides Montanans with a right to privacy: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." We have frequently recognized, "Article II, Sections 10 and 11 of the Montana Constitution provide greater protections against unreasonable searches and seizures and government infringement of individual privacy than does the federal constitution." Anyan, ¶ 61 (emphasis added). The knock-and-announce rule in Montana protects different interests than the warrant clause. In Anyan we explained that underlying the knock-and-announce rule are concerns for reducing the potential for violence and preventing the destruction of private citizens' property. Anyan, ¶¶ 23-25. We also described how the knock-and-announce rule protects interests unique to Montana-our right of privacy and enhanced protections against unreasonable searches and seizures found in Article II, Sections 10 and 11, of the Montana Constitution. Anyan, ¶¶ 20, 61. These interests, however, relate to the reasonableness of a warrant's execution and not to the judicial determination of probable cause.

         ¶26 Anyan failed to distinguish between the warrant clause and reasonableness clause of Article II, Section 11, and the comparable clauses contained in the Fourth Amendment. Importantly, Anyan improperly attached Montana's heightened right of privacy to the warrant clause of Article II, Section 11, which requires a probable cause determination to be made by an impartial judicial officer upon oath or affirmation. Obviously, the enhanced privacy protections contained in Article II, Section 10, which Anyan recognizes, do not preclude execution of a search warrant which is based upon probable cause, as here. By obtaining a warrant, the state has demonstrated probable cause and a compelling interest in continuing to investigate a crime to which an individual's right to privacy protected by Article II, Section 10, must yield. Article II, Section 10 still, however, provides heightened protections against unreasonable searches, even where officers execute those searches pursuant to a warrant. Searches executed in an unreasonable manner may offend Article II, Section 11's reasonableness clause and the significant privacy interests enshrined in Article II, Section 10.

         ¶27 Consequently, the Anyan rule confuses the responsibilities of the judge with those of the officer. Although in Ochadleus, we recognized "an investigating officer may make a no-knock entry after a reasonable suspicion of exigency has ripened," Ochadleus, ¶ 56 (citing Banks, 540 U.S. 31, 124 S.Ct. 521), we never articulated the role the judge plays in evaluating the "reasonable suspicion of exigency" before the judge issues the search warrant. Nor did we address the situation where exigent circumstances clearly existed when officers applied for the warrant but the judge did not grant a no-knock preauthorization, as here. Surely Anyan should not be construed to require no-knock preauthorization by a judge, who presumably has no expertise in executing warrants, to take priority over the safety of officers and the public. The Anyan rule leaves unclear whether the judge must assess if the officer has a reasonable suspicion of exigency or if the judge has a reasonable suspicion of exigency. Additionally, questions arise where a warrant denies or is silent about a no-knock entry. For example, where officers gain a reasonable suspicion of a new exigency shortly after receiving a warrant but before arriving on-scene to execute it, the new exigency is not an unexpected exigent circumstance arising on-scene that would otherwise justify a no-knock entry under Anyan. See Anyan, ¶ 62. Therefore, it is unclear whether officers must reapply for no-knock authorization before executing the warrant.

         ¶28 We observe federal jurisprudence has distinguished between the warrant and reasonableness clauses of the Fourth Amendment and, upon such distinction, has not interpreted the Fourth Amendment as requiring officers to obtain advance authorization for a no-knock entry from a neutral and detached magistrate. In Dalia v. United States, 441 U.S. 238, 257 n.19, 99 S.Ct. 1682, 1693 n.19 (1979), the Supreme Court stated:

[C]ourts have upheld the use of forceful breaking and entering where necessary to effect a warranted search, even though the warrant gave no indication that force had been contemplated. To be sure, often it is impossible to anticipate when these actions will be necessary. Nothing in the decisions of this Court, however, indicates that officers requesting a warrant would be constitutionally required to set forth the anticipated means for execution even in those cases where they know beforehand that unannounced or forced entry likely will be necessary.

         Years later, the Supreme Court considered an argument raised in Richards v. Wis., 520 U.S. 385, 395-96, 117 S.Ct. 1416, 1422 (1997), that an entry was unreasonable where the magistrate signing the warrant explicitly deleted portions of the warrant giving officers permission to execute a no-knock entry. The Court held the magistrate's denial of a no-knock entry "does not alter the reasonableness of the officers' decision, which must be evaluated as of the time they entered the hotel room," and the actual circumstances "justified the officers' ultimate decision to enter without first announcing their presence and authority." Richards, 520 U.S. at 395-96, 117 S.Ct. at 1422.

         ¶29 More recently, federal circuit courts of appeals have made similar observations. See, e.g., United States v. Ankeny, 502 F.3d 829, 835 (9th Cir. 2007) ("There is no requirement that the police obtain a no-knock warrant simply because one is available."); United States v. Boulanger, 444 F.3d 76, 83 (1st Cir. 2006) (rejecting an argument that police should have informed the judge issuing the warrant they intended to conduct a no-knock entry because "[t]he [Supreme] Court has . . . made clear that the reasonableness of a police officer's decision to conduct a no-knock entry must be evaluated as of the time they conduct the entry." (citing Richards, 520 U.S. at 395, 117 S.Ct. at 1422) (original quotations and brackets omitted)). Further, the First Circuit distinguished how the knock-and-announce rule "falls under the Fourth Amendment's reasonableness clause, as opposed to its warrant clause." Boulanger, 444 F.3d at 83 (citing Arkansas, 514 U.S. at 930, 115 S.Ct. at 1916) (emphasis added).

         ¶30 In Hudson v. Michigan, 547 U.S. 586, 593-94, 126 S.Ct. 2159, 2165 (2006), the Supreme Court made a distinction similar to the First Circuit's. It concluded the interests protected by the warrant requirement are different than those protected by the knock-and-announce rule:

Until a valid warrant has issued, citizens are entitled to shield "their persons, houses, papers, and effects," from the government's scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different-and do not include the shielding of potential evidence from the government's eyes.

Hudson, 547 U.S. at 593, 126 S.Ct. at 2165 (quoting U.S. Const. amend. IV). The Court clarified the interests protected by the knock-and-announce rule: the protection of "human life and limb" where an unannounced entry may provoke violence; the protection of property where, with proper notice, a property owner may avoid "the destruction of property occasioned by a forcible entry"; and the protection of privacy and dignity where the rule "assures the opportunity to collect oneself before answering the door." Hudson, 547 U.S. at 594, 126 S.Ct. at 2165 (internal quotations omitted). In this respect, the Court concluded: "What the knock-and-announce rule has never protected, however, is one's interest in preventing the government from seeing or taking evidence described in a warrant." Hudson, 547 U.S. at 594, 126 S.Ct. at 2165.

         ¶31 An impartial judge's primary responsibility when issuing a warrant is to determine whether probable cause exists to justify the search itself. Section 46-5-221, MCA; Wilson, 266 Mont. at 149, 879 P.2d at 684. However, Montana law does not also require judges to determine whether the anticipated means of executing a warrant are reasonable. Moreover, there are no requirements set forth in the Montana Constitution nor the Montana Code Annotated that a judge determines prospectively whether exigent circumstances exist to justify a no-knock entry. See Mont. Const. art. II, §§ 10, 11; § 46-5-221, MCA (requiring only facts sufficient to support probable cause and a particular description of the place, object, or person to be searched and who or what is to be seized); see also §§ 46-5-101 to -228, MCA (describing legal authority and procedures for searches and seizures). Only the Anyan rule sets forth such a requirement.

         ¶32 We conclude Montanans' enhanced privacy protections do not compel judicial preauthorization of no-knock entries because the judge's role is to determine probable cause, not the manner of the warrant's execution. Montana's enhanced privacy protections may, however, compel an examination of the reasonableness of the warrant's execution. Importantly, a defendant may still challenge the reasonableness of a search and argue it violated his right to privacy protected by Article II, Sections 10 and 11, even though officers knocked and announced their presence. As we conclude the officers here had exigent circumstances to execute the March 2013 Warrant without knocking and announcing and the warrant's execution was reasonable, see infra ¶¶ 39-41, we do not address the remedy had the facts and circumstances supported a conclusion that the warrant's execution was unreasonable.

         ¶33 Lastly, we clarify that whether the March 2013 Warrant's execution was reasonable depends on whether the officers had a reasonable suspicion of exigent circumstances before effectuating the no-knock entry, and not whether exigent circumstances actually existed. Detective Bancroft listed several factors in the March 2013 Warrant application upon which he based his reasonable suspicion that exigent circumstances justified a no-knock entry. The judge, however, ultimately did not authorize a no-knock entry in the warrant. Based on the foregoing analysis, whether a no-knock entry was reasonable depends solely on whether the officers executing the warrant had a reasonable suspicion of exigent circumstances justifying it.

         ¶34 An investigating officer may effectuate a no-knock entry if the officer has a reasonable suspicion of exigent circumstances. Ochadleus, ¶ 56 (citing Banks, 540 U.S. 31, 124 S.Ct. 521). Exigent circumstances are "those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." Anyan, ¶ 34 (quoting United States v. Zermeno, 66 F.3d 1058, 1063 (9th Cir. 1995)). The burden of showing a reasonable suspicion "is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Richards, 520 U.S. at 394, 117 S.Ct. at 1422.

         ¶35 Some of our prior cases differ on whether a reviewing court should review the officers' reasonable suspicion of exigent circumstances or the exigent circumstances themselves. In Anyan, we acknowledged that police must have a reasonable suspicion of exigent circumstances before justifying a no-knock entry, but we later rephrased the same rule as requiring courts to "determine whether an unannounced entry is reasonable under the particular circumstances of each case." Compare Anyan, ¶ 39 (citing Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22), with Anyan, ¶ 64 (citing Richards, 520 U.S. at 394, 117 S.Ct. at 1421). In Cassady v. Yellowstone Cty. Mont. Sheriff Dep't, 2006 MT 217, ¶ 32, 333 Mont. 371, 143 P.3d 148, we evaluated "whether exigent circumstances obviated the knock and announce requirement under the present circumstances," but we made no reference to the officer's reasonable suspicion. In Ochadleus, we held investigating officers did not need to knock and announce their presence where doing so was futile, but we analyzed the actual futility of knocking and announcing under the circumstances-not whether the investigating officers had a reasonable suspicion of futility. Ochadleus, ¶¶ 47-48.

         ¶36 We clarify that review of the reasonableness of a warrant's execution is directed to whether the officers had a reasonable suspicion of exigent circumstances before effectuating the no-knock entry, and not whether exigent circumstances actually existed. See Hudson, 547 U.S. at 596, 126 S.Ct. at 2166 ("[A] mere 'reasonable suspicion' that knocking and announcing 'under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime,' will cause the requirement to yield." (quoting Richards, 520 U.S. at 394, 117 S.Ct. at 1421)). Whether the exigent circumstances actually exist is immaterial-the officers only need a reasonable suspicion of them. Therefore, when reviewing a no-knock entry, courts must confine their review to the reasonableness of the officers' suspicion that exigent circumstances existed when they entered the protected area.

         ¶37 In conclusion, we have little difficulty holding that officers must have flexibility when evaluating the circumstances surrounding execution of a search warrant, including physical threats posed by knocking and announcing their presence along with any other exigent circumstance. By placing the onus on the judge issuing the warrant to prospectively evaluate exigent circumstances, the Anyan rule severely limits the officer's ability to protect the safety of other persons and property and to secure evidence. The Anyan rule creates confusion and, notwithstanding Anyan, lacks a sufficient foundation in Montana and federal law. We overrule Anyan to the extent it requires prior judicial approval for no-knock entries. Judges no longer have a role in determining whether officers may execute a warrant via a no-knock entry. Instead, officers serving a warrant may perform a no-knock entry if they have a reasonable suspicion of exigent circumstances. They may base their reasonable suspicion on information known both before and after the application for the search warrant. The manner of execution, including whether the officers abided by the knock-and-announce rule, is a factor a court should consider when assessing whether the search was constitutionally reasonable.

         ¶38 We now address whether exigent circumstances were present which justified a no-knock entry when officers executed the March 2013 Warrant.

         B. The Reasonableness of the March 2013 Warrant's Execution.

         ¶39 In his original warrant application, Detective Bancroft asked the judge to approve a no-knock entry. The judge granted the search warrant, but-the parties debate whether inadvertently or by-design-the warrant itself did not contain a reference to a no-knock entry. Nevertheless, Lieutenant O'Donnell, the officer in charge of the SWAT team executing the warrant, testified he and his team were under the impression the warrant granted them the authority to execute a no-knock entry. After hearing testimony from multiple officers and viewing dashcam footage of the officers' entry into Neiss's home, the District Court concluded that, regardless of whether the warrant permitted a no-knock entry, the officers knocked and announced their presence and waited a reasonable amount of time before entering Neiss's home. On appeal, the parties argue extensively about whether the warrant was executed in a reasonable manner; specifically, whether officers knocked and announced their presence and whether they waited a reasonable time before entering. These factors and the District Court's findings and conclusions are relevant considerations when assessing the reasonableness of how the officers executed the warrant. Ultimately, however, the District Court's conclusion that there was no violation of the knock-and-announce rule is not dispositive of whether the search was reasonable. We therefore consider Neiss's argument that the warrant's execution was unreasonable.

         ¶40 The officers who executed Niess's search warrant gathered information from the crime scene, witnesses, prior police reports, and Neiss's criminal history to assess how they should approach serving a search warrant on Neiss. Neiss was a homicide suspect, and-unable to find the firearm used to kill Greene-the officers had reason to believe Neiss still possessed it. They knew that, some years before, Neiss was convicted of a federal firearms offense for illegal possession of a machine gun and multiple firearms. They reviewed police reports over the previous year which detailed one incident where Neiss threatened Greene with a baseball bat and another where multiple witnesses heard distant gunshots when Neiss drove away after threatening to kill Greene. The police reports indicated Neiss was often uncooperative with officers and believed them to be Greene's "accomplices." The officers also discovered that the sheriff's department used the SWAT team to serve warrants on Neiss in the past.

         ¶41 This information gave the investigating officers a suspicion that knocking and announcing under the particular circumstances would have posed a physical threat. Further, based on the quality of the information and the officers' knowledge at the time, their suspicion of exigent circumstances was reasonable. We conclude that the ...


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