UNITED STATES of America, Plaintiff-Appellant, v. Hernan RAMIREZ, Defendant-Appellee

dissenting.

1. The majority opens up a square conflict with United States v. Turner, 926 F.2d 883 (9th Cir.), cert. denied, 502 U.S. 830 , 112 S.Ct. 103 , 116 L.Ed.2d 73 (1991), a case where we upheld a no-knock entry. In Turner , police forced open a locked apartment door and entered the defendant’s bedroom; Turner argued the no-knoek entry was illegal because the police couldn’t be sure he was armed, but we upheld the search. The majority contrasts Turner with Shelby, characterizing the former as a “considerably more impressive]” threat, maj. op. at 1301, and the latter as an “escape artist” whose “degree of dangerousness bespoke a mild exigency,” if that. Id. at 1301.

The record contradicts the majority’s romantic description of Shelby — a hardened and desperate criminal, much more dangerous than Turner. But words are cheap; here are facts:

*1305 My colleagues trip lightly over the fact that Shelby had “a history of violent escapes.” ER at 22. But, in his dogged efforts to flee from custody, Shelby not only struck two law enforcement officers, but “assaulted a woman in a parking lot and stole her vehicle,” id.; he then crashed into a police car in making his getaway.…

Opinion by Judge Fernandez; Dissent by Judge Kozinski.

Heman Ramirez was indicted for being a felon in possession of firearms. 18 U.S.C. § 922 (g)(1). The district court determined that the firearms had been discovered in connection with a violation of Ramirez’s rights under the knock-and-announce law. 18 U.S.C. § 3109 . It, therefore, suppressed the evidence of the weapons, and the United States appealed. We affirm.

BACKGROUND

On November 5, 1994, Ramirez and his wife awoke out of their peaceful slumbers to a series of unusual sounds, including the breaking of a window. Their child, too, awoke and started crying. They feared that they were being attacked by burglars. They were not, but by the end of the day Ramirez found himself in the custody of federal agents and charged with a crime — felon in possession of a firearm — which could lead to a lengthy period of incarceration. How he found himself in that predicament takes some telling.

Just three days before, Alan Laurence Shelby had knocked a deputy sheriff down and escaped from custody. He was then facing a term of federal imprisonment of 248 months and had declared that he would not do federal time. He had tried to escape…

91 F.3d 1297 96 Cal. Daily Op. Serv. 5747 , 96 Daily Journal D.A.R. 9407 UNITED STATES of America, Plaintiff-Appellant, v. Hernan RAMIREZ, Defendant-Appellee. No. 95-30158. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 1996. Decided Aug. 2, 1996. Stephen F. Peifer, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellant. Michael R. Levine, Deputy Federal Public Defender, Portland, Oregon, for defendant-appellee. Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-94-00379-1-ALH. Before: REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges. Opinion by Judge Fernandez; Dissent by Judge Kozinski. FERNANDEZ, Circuit Judge: 1 Hernan Ramirez was indicted for being a felon in possession of firearms. 18 U.S.C. § 922 (g)(1). The district court determined that the firearms had been discovered in connection with a violation of Ramirez's rights under the knock-and-announce law. 18 U.S.C. § 3109 . It, therefore, suppressed the evidence of the weapons, and the United States appealed. We affirm. BACKGROUND 2 On November 5, 1994, Ramirez and his wife awoke out…