We review questions of probable cause de novo, but with “due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers.” Ornelas v. United States,517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We need only find that the issuing magistrate had a substantial basis for finding probable cause. Illinois v. Gates,462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In making this determination, a magistrate judge must assess the totality of the circumstances and make a “practical, common-sense decision.” Id. at 238, 103 S.Ct. 2317. Under the totality of the circumstances test, otherwise innocent behavior may be indicative of criminality when viewed in context. See United States v. Ocampo,937 F.2d 485, 490 (9th Cir. 1991). Additionally, issuing judges may rely on the training and experience of affiant police officers. United States v. Gil,58 F.3d 1414, 1418 (9th Cir. 1995).
When a magistrate judge issues a search warrant for a residence, he must find a “reasonable nexus” between the contraband sought and the residence. United States v. Rodriguez,869 F.2d 479, 484 (9th Cir. 1989). In making this determination, a magistrate judge need only find that it would be reasonable to seek the evidence there. United States v. Terry,911 F.2d 272, 275 (9th Cir. 1990).
The Knock and Announce Rule allows an officer to “break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance. . . .” 18 U.S.C. § 3109. Officers can infer constructive refusal to admit from silence, but only after a “significant amount of time.” Granville,222 F.3d at 1218 (internal quotation marks omitted). There is no established time that the police must wait; instead, the time lapse must be reasonable considering the particular circumstances of the situation. See United States v. Banks,282 F.3d 699, 703-05 (9th Cir. 2002); McClure v. United States,332 F.2d 19, 22 (9th Cir. 1964) (concluding that a 4 to 5 second wait was justified when police heard someone running away from door). When evaluating reasonableness, we consider such circumstances as (1) the size and layout of the residence; (2) the time of day; (3) the nature of the suspected offense; (4) the evidence demonstrating guilt; and (5) the officers’ other observations that would support forced entry. See Banks,282 F.3d at 704.
Read the full case here: U.S. v. Chavez-Miranda, 306 F.3d 973 (9th Cir. 2002), https://casetext.com/case/us-v-chavez-miranda
Anton Vialtsin, Esq.
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