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4th Circuit faults use of no-knock entry

Members of three Special Operations Team squads who stormed a West Virginia home after 10 p.m. with a search warrant do not have qualified immunity for their no-knock entry or the alleged use of excessive force against the family’s teenage son, the 4th U.S. Circuit Court of Appeals has held.

That the officers suspected that Samuel Joseph Bellotte possessed child pornography and that Bellotte and his wife were licensed to carry concealed weapons did not justify a “dynamic,” or no-knock, entry, Judge J. Harvie Wilkinson III wrote for the court.

“Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state,” Wilkinson wrote. “The officers who burst into the Bellotte home point to no signpost of danger, nor to any criminal history, nor indeed to any factor that distinguishes this particular search from many others that police conduct on a daily basis.”

The late-night raid came after Bellotte surrendered nude photographs he developed at a Walmart self-service kiosk to a store employee. The Walmart worker contacted police because one of the photos showed male genitalia next to what appeared to be a child’s face.

Bellotte was not home when police executed the search warrant, but his wife and two children were. Learning of the raid the next morning, Bellotte went to the county sheriff’s office with a birth certificate and passport showing that the purported child in the photo was, in fact, a 35-year-old woman. No child pornography charges were ever filed against him.

In its analysis of the case, the 4th Circuit addressed the narrow question of whether the officers were entitled to qualified immunity for their actions.

The defendants argued they had reasonable suspicion that knocking and announcing their presence would jeopardize their own safety and the safety of the suspect, according to court documents. The defendants claimed that child pornography suspects have a propensity for violence when confronted by officers. And because sexual offenders are at a greater risk for suicide, a no-knock entry would protect the safety of the suspect as well, the officers argued.

But the court was not convinced by the defendants’ “remarkably scanty rationale.”

“Such speculation hardly establishes the level of justification needed to authorize a no-knock entry,” Wilkinson wrote. The possession of a single photograph might indicate that Bellotte’s tendencies were more “lurid” than violent.

The officers further defended their no-knock entry by noting that both Bellotte and his wife hold permits to carry concealed weapons.

However, that fact alone did not establish that the officers were in danger. In fact, the defense admitted at oral argument that “most people in West Virginia have guns,” Wilkinson wrote.

The panel agreed with the district court judge, who said a ruling of qualified immunity in this case would amount to “a blanket rule permitting no-knock entries in all cases involving alleged child pornographers who happen to possess a weapon in their home.”

The court held that the no-knock entry in this instance did not warrant an award of qualified immunity “because a person of reasonable intelligence would not have believed exigent circumstances existed in this situation.”

The 4th Circuit also affirmed denial of qualified immunity with respect to the teenage son’s excessive-weapons claim, based on allegations that he felt “boots in his back and a gun at the back of his head.”

The Bellottes claimed that Jefferson County Special Operations Team squads rushed into their home from multiple entry points. Their son was the first to encounter police, who subdued and handcuffed him as he left his bedroom. The teenager said he felt a gun poking the back of his head. Police then entered the bedrooms of the 12-year-old daughter and Tamara Bellotte, both of whom were in bed at the time, according to the opinion.

Judge James A. Wynn Jr. joined the majority conclusion that the no-knock entry was unlawful, but dissented on the question of immunity because, he said, the illegality of the search was not clearly established by prior decisions of the Supreme Court or 4th Circuit.

“There is simply no case law that speaks to the presence or absence of exigent circumstances in the context of a child abuse investigation in which the child victim and multiple firearms are believed to be in the suspect’s custody,” Wynn wrote. “Thus, there were no ‘bright lines’ demarcating the limits of a reasonable suspicion of danger under these circumstances.”

The case is Bellotte v. Edwards, No. 10-1115.

Virginia Lawyers Weekly, a sister publication of The Daily Record, contributed to this report.