United States v. Kelly David Ankeny, Sr.

490 F.3d 744 UNITED STATES of America, Plaintiff-Appellee, v. Kelly David ANKENY, Sr., Defendant-Appellant. No. 05-30457. United States Court of Appeals, Ninth Circuit. Argued July 27, 2006. Resubmitted June 5, 2007. Filed June 19, 2007. Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the defendant-appellant. Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. CR-04-00005-MO. Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and SUSAN P. GRABER, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge REINHARDT. GRABER, Circuit Judge: 1 Defendant Kelly David Ankeny, Sr., was indicted on four counts of being a felon in possession of a firearm and one count of possession of an unregistered sawed-off shotgun. The district court denied his motion to suppress and, reserving the right to appeal that decision, Defendant pleaded guilty. The district court sentenced him to 262 months' imprisonment pursuant to the Armed Career Criminal Act of 1984…

Opinion by Judge GRABER; Dissent by Judge REINHARDT.

Defendant Kelly David Ankeny, Sr., was indicted on four counts of being a felon in possession of a firearm and one count of possession of an unregistered sawed-off shotgun. The district court denied his motion to suppress and, reserving the right to appeal that decision, Defendant pleaded guilty. The district court sentenced him to 262 months’ imprisonment pursuant to the Armed Career Criminal Act of 1984 (“ACCA”) and the Career Offender provision of the United States Sentencing Guidelines (“U.S.S.G.”).

On appeal, Defendant argues that: (1) the evidence seized during the search of his residence should have been suppressed; (2) the district court should have dismissed all but one count of felon in possession; (3) the government should have been required to allege Defendant’s prior convictions in the indictment and prove them to a jury beyond a reasonable doubt; (4) his prior convictions do not qualify as predicate felonies under ACCA; and (5) the district court erred in applying the Career Offender guideline.

We hold that the motion to suppress was properly denied, but that the convictions were multiplicitous and that material…

dissenting:

I. Introduction

I agree with the majority that the law enforcement officers’ entry into David Kelly Ankeny’s home without complying with the constitutional “knock and announce” requirements does not necessitate suppression of the evidence. See Maj. Op. at 750. After Hudson v. Michigan, - U.S. -, 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006), such a knock-and-announce violation no longer justifies the remedy of suppression. Id. at 2168 . Because I conclude, however, that the intensive and violent search that ensued was unreasonable due to the extreme use of excessive force and that the evidence *757 seized during the unlawful search should be suppressed, I am compelled to dissent.

The majority avoids determining whether the military-style invasion of Ankeny’s home, with the concomitant destruction of physical property and infliction of serious personal injuries, violated Ankeny’s Fourth Amendment rights. It does so by holding that regardless of how unlawful the law enforcement officers’ actions may have been, “suppression is not appropriate,” because “[t]he alleged Fourth Amendment violation and the discovery of the evidence lack the causal nexus that is required to invoke…