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1. INTRODUCTION
2. LEGAL ASPECTS OF SOME RESPONSE TEAM HIGH-RISK DUTIES

2.1 GENERALLY
2.2 BARRICADED SUSPECTS

a. What steps must you take to confirm the identity of a suspect believed to be in a building to forcibly enter and arrest?

2.3 HOSTAGE SITUATIONS
2.4 THREATENED SUICIDES
2.5 PROTECTION SECURITY FOR OFFICERS IN RIOT/CROWD CONTROL SITUATIONS
2.6 HIGH RISK WARRANT SERVICE WHERE THE INDIVIDUAL IS BELIEVED TO BE ARMED OR DANGEROUS OR WHEN REINFORCED/FORTIFIED STRUCTURES ARE ENCOUNTERED OR ANTICIPATED.

1. INTRODUCTION

    Some of the duties which may require Response Team deployment include:

a. Sniper Situations;
b. Barricaded Suspects;
c. Hostage Situations;
d. Hijacking of an Aircraft;
e. Rescue Operations;
f. Security for Visiting Dignitaries;
g. Threatened Suicides;
h. Protection Security for Officers in Riot/Crowd Control Situations; and
i. High Risk Warrant Service Where the Individual is Believed to be Armed or Dangerous or when Reinforced/Fortified Structures are Encountered or Anticipated.

    Due to the unique and urgent nature of most of these situations, some of the "normal" legal rules regarding arrests, search and seizures and use of force either do not apply or are modified when applied under particular circumstances. The goal of this presentation is to illustrate some situations when officers may safely and legally vary from the norm.

2. LEGAL ASPECTS OF SOME RESPONSE TEAM HIGH-RISK DUTIES

2.1 GENERALLY

    Due to the nature of the task, most, but not all, response team scenarios are legally viewed as an emergency or an exigent circumstance. Factors that warrant such legal treatment include the higher than normal risk of loss of human life or substantial injury, the need for tactical flexibility and the specialized training and equipment of the officers involved.

2.2 BARRICADED SUSPECTS

    In most cases, barricaded suspects have violated some law, are attempting to avoid arrest, and are armed and dangerous to officers and the public. The legal standards governing these situations is the normal law of arrests, search and seizures and use of force apply but are more flexibly applied due to the exigency of the situation.

ARRESTS AND LESSER LEVELS OF CONTACT

    Courts generally recognize three types of police-citizen contact: voluntary encounters, investigative detentions (Terry stops) and arrests. The legal standard for each is illustrated in the following matrix:
 
 

Type of Encounter	Voluntary	Terry Stop	Arrest
Scope	Unlimited	Brief investigatory detention to question, search outer clothing for weapons and immediately apparent contraband	Deprivation of liberty to the point that a reasonable person would believe they are no longer free to go
Suspicion Required	None	Reasonable Suspicion	Probable Cause

    The City of Topeka, by charter ordinance, has "opted out" of the state law provisions governing a municipal LEOs authority to arrest. The Topeka provision, § A10-26 of the Code of the City of Topeka (1994), as amended, is actually slightly broader than the comparable state law provision. The ordinance states:
 

A law enforcement officer may arrest a person under any of the following circumstances:

(a) The officer has a warrant commanding that the person be arrested.
(b) A warrant for the person's arrest has been issued by a municipal court in this state.
(c) The officer has probable cause to believe that the person is committing or has committed a violation of an ordinance and that the person has intentionally inflicted bodily harm to another person.
(d) The law enforcement officer, having no warrant, has detained such persons pursuant to K.S.A. 12-4211(c) or (d) and amendments thereto, and:

(1) The person refuses to give a written promise to appear in court when served with a notice to appear;
(2) The person is unable to identify the person to the reasonable satisfaction of the law enforcement officer;
(3) The person is not a resident of the State of Kansas; or
(4) The law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.

    Because barricaded suspect scenarios most generally involve a known violator, probable cause to believe a crime has been, is, or will be committed is usually the legal standard that governs. No warrant is required due to the exigent circumstances exception -- probable cause to believe a crime is, has or will be committed and there is a valid concern that someone may be harmed or that evidence will disappear.

    Probable cause is defined as "that quantum of evidence which would lead a prudent man to believe that an offense has been committed." State v. Clark, 218 Kan. 726, 731, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976). The evidence need not be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. "It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information."

NON-EXCLUSIVE FACTORS FOR DETERMINING WHETHER EXIGENT CIRCUMSTANCES EXIST

(1) the gravity or violent nature of the offense with which the suspect is to be charged;
(2) whether the suspect is reasonably believed to be armed;
(3) a clear showing of probable cause;
(4) strong reasons to believe that the suspect is in the premises;
(5) a likelihood that the suspect will escape if not swiftly apprehended [;] and
(6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978), cited with approval in State v. Gilbert, 24 Kan.App.2d 159 (1997). Possible loss or destruction of evidence is also a factor to be considered. State v. Platten, 225 Kan. 764, 770, 594 P.2d 201 (1979).

    An example of the application of exigent circumstances to justify a warrantless entry and search of a house is a domestic violence call and reason to believe the victim and aggressor are still in the residence. The court held that based on the officer's experience with domestic violence cases and the circumstances present (911 call, sounds of struggle, no answer at the door) the officer could forcibly enter and search. State v. Gilbert, 24 Kan.App.2d 159 (1997).

a. What steps must you take to confirm the identity of a suspect believed to be in a building to forcibly enter and arrest?

    There is no set approach to determining how far officers have to go to identify a suspect believed to be barricaded in a building, because determining whether probable cause exists depends on the facts and circumstances of each case.

    Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quantity and quality--are considered in the "totality of the circumstances--the whole picture" (citation omitted) that must be taken into account when evaluating whether there is reasonable suspicion.

Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990).

    Content and reliability of the information officers are necessarily dependant on the facts of each case.

Discussion Question:

Based on my understanding of a recent example, one Mr. Love, a known troublemaker and suspect in a very recent drive-by shooting, fled the shooting scene and held up in a house on Lafayette. Mr. Love was apparently identified, either by name or physical description of his person and/or his vehicle, by victims in the drive-by. Other suspects in the drive-by who initially barricaded themselves with Mr. Love also identified him as the barricaded suspect. A warrants check on Mr. Love revealed unserved felony warrants for murder or manslaughter. At what point did officers have probable cause to enter the residence and arrest Mr. Love? What other facts and circumstances would you want to know before you answer this question?

    Mistakes are allowed, as long as they are reasonable under all the facts and circumstances of each case. Arrest based on probable cause does not violate the Fourth Amendment even though LEO arrests the wrong person. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). No Fourth Amendment violation by mistaken execution of warrant on the wrong premises. Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). No liability where LEOs affected a "quick and violent" arrest of innocent person who resembled a violent, escaped felon who threatened to shoot any LEO. Officers were reasonably mistaken in their belief that the subject arrested was the felon. Dean v. City of Worcester, 924 F.2d 664 (1^st Cir. 1991).

MENTAL BARRICADED SUSPECTS

    Do the same rules apply when officers do not have any particularized knowledge the suspect did, is or is about to commit a crime? For example, when someone calls 911 and tells dispatchers that their little Johnny has been acting "strange of late" and they are afraid he will "do something irrational" even though he has no history of such action?

    Generally, the answer is no. Officers usually cannot rely on the exigent circumstances warrant exception because there is no showing of probable cause.

    However, police can usually make a warrantless arrest and search under a different exception - the emergency doctrine. The emergency doctrine is based on the realization that police do more than merely find and arrest criminal law violators. Officers must establish a concern for someone's safety and emergency circumstances. In other words, officers must articulate such an emergency that an immediate warrantless entry and search is imperative. Monroe v. Darr, 221 Kan. 281, 287, 559 P.2d 322 (1977). Do not confuse this exception with the exigent circumstances exception -- they have different purposes and applications.

    The emergency doctrine reflects a recognition that the police perform a community caretaking function which goes beyond fighting crime. See 3 La Fave, Search and Seizure § 6.6, pp. 389-90 (3d ed. 1996). Under this function, the community looks to the police to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved. Warrantless entries into and searches of private property pursuant to this exception are not prohibited by the Fourth Amendment to the United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.

    The emergency exception to the warrant requirement has been recognized by the United States Supreme Court and by numerous state and federal courts. [Citations omitted]. In Mincey, the Supreme Court stated:

"We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. [Citation omitted]. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations omitted.]" 437 U.S. at 392-93.

    In an emergency situation, quick action to protect public safety is the goal. "[T]he business of policemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with judicial process." State v. Boyle, 207 Kan. 833, 486 P.2d 849 (1971)(police asked to remove dynamite from a house in a residential area a block away from an elementary school where the owner of the dynamite was "talking crazy.")

DETERMINING WHEN EMERGENCY DOCTRINE APPLIES

(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched."

State v. Jones, 24 Kan.App.2d at ___.

2.3 HOSTAGE SITUATIONS

    Authority to enter and make warrantless arrests in these situations is usually justified by the exigent circumstances exception. The emergency doctrine usually will not apply because of the presence of a serious felony, kidnapping, being committed in an officer's presence. The relevant statute, K.S.A. 21-3420, states that kidnapping is "the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:

(a) For ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime.

    Where a hostage taker fired shots through and apartment door knowing there were police officers on the other side, two convictions of aggravated assault against a LEO were affirmed despite the fact that the hostage taker did not know precisely where the officers were. State v. Wood, 235 Kan. 915, 923, 686 P.2d 128 (1984).

    Similarly, where the hostage taker claimed that he could not be convicted of aggravated assault on a LEO because the LEO never identified himself as a LEO, the court rejected the argument as "in its totality, wholly without merit." Wood, 235 Kan. at 925. The officer assaulted was a response team member, was clothed in a dark jumpsuit with a dark baseball cap, and was armed with a rifle with a telescopic sight. When the hostage taker shot at the officer, the "police siege" had been occurring for several hours. The court held there was ample evidence from which a reasonable juror could conclude that Wood reasonably should have know the response team officer was a LEO.

    Because of the real and immediate threat to life, a wide variety of police tactics up to and including lethal force is reasonable and justified in any hostage situation.

    The legal issues that usually arise in these situations include whether the entry and search were reasonable so as not to violate the defendant's Fourth Amendment rights, and whether police assumed a special duty and therefore become civilly liable to the hostages or their heirs to protect them from harm.

    The Calibre Press attachments summarize two major cases illustrating these issues. The Supreme Court of Massachusetts held that a SWAT team's use of a flash bang and military-style entry was not unreasonable even though small children and a pregnant woman were near the explosion site, and the pregnant woman was struck in the face and abdomen by the door. Commonwealth v. Garner, 672 N.E.2d 510 (1996). In the other case, an ultra-liberal California Court of Appeals held that a SWAT team and hostage negotiators created a special duty to children held hostage by their father in a standoff which exceeded nine hours. The police employed a variety of typical isolation and discomfort tactics in an attempt to resolve the situation. Ultimately, their efforts were unsuccessful, and the suspect shot both his kids and then himself. Ironically, the court held the police tactics created a special duty because police took total control of the situation and selectively cut off the suspect's ability to communicate with the outside world. Souza v. City of Antioch, (No. A071686, Cal. Appls. 1^st District 4/97). After the appeals court decision, the parties settled the wrongful death claim for $175,000.

    Kansas courts probably will not be inclined to follow the California Court of Appeals' lead in the Souza case. A series of tort claims decisions make it clear that police owe their duty to the public at large and not any specific individual. See Woodruff v. City of Ottawa, 263 Kan. 557, ___ P.2d ___ (1997)(police owe no special duty to motoring public to prevent drunk driver from leaving a bar where he caused a disturbance - oral instruction by supervising officer to watch drunk leave did not create a special duty); Gragg v. Wichita State University, 261 Kan. 1037, 934 P.2d 121 (1997). (WSU police owed no special duty to victim shot by gang member at a public fireworks display); Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982)(LEOs not liable for house burned downed by intoxicated trespasser whom they refused to remove from property); However, police may create a special duty where: (1) there is a custodial setting in which the state has limited the individual's ability to care for himself; and (2) when the state affirmatively places the individual in a position of danger the individual would not have otherwise faced. Deshaney v. Winnebago Cty. Dep't. of Social Services, 489 U.S 189, 103 L.Ed.2d 249, 109 S.Ct. 998 (1989). For example, in Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997), the Kansas Supreme Court affirmed a $150,000 judgment against the city when officers "allowed" the female in a domestic confrontation to slit the handcuffed male's throat with a box knife.

2.4 THREATENED SUICIDES

    The legal standards governing such cases are those set forth under the heading "MENTAL BARRICADED SUSPECTS" above. Generally, the emergency doctrine applies to allow warrantless entry and search. Lethal force is not justified unless there is an imminent threat to someone other than the suicidal individual.

2.5 PROTECTION SECURITY FOR OFFICERS IN RIOT/CROWD CONTROL SITUATIONS

    The legality of police tactics in these situations are based on the highly factual circumstances present in each case. In a riot situation, there are very few rules to follow with regard to the combatants. Having said that, however, the force used to resolve the riot is limited by the Fourth Amendment's reasonableness standard and/or the substantive due process standard of the Fourteenth Amendment. Generally, if lethal force is reasonable under the circumstances (combatants are armed and have opportunity, ability to kill or cause serious bodily injury, and there is imminent jeopardy), its use is legal and proper.

    Crowd control situations raise different issues. Usually, there is some type of First Amendment activity taking place. Officers must carefully balance the First Amendment rights of participants with the potential for the event to quickly get beyond the officers' reasonable ability to preserve public peace. For example, there are much different security concerns present when the KKK conducts a rally than exist when local church members conduct a parade or march. Generally, as the risk to public safety becomes greater, more restrictions can be placed on First Amendment activities. However, the United States Supreme Court consistently holds that First Amendment Rights receive the greatest protection, and governments must exhaust all reasonable alternatives before restricting First Amendment activities.

2.6 HIGH RISK WARRANT SERVICE WHERE THE INDIVIDUAL IS BELIEVED TO BE ARMED OR DANGEROUS OR WHEN REINFORCED/FORTIFIED STRUCTURES ARE ENCOUNTERED OR ANTICIPATED.

    This area of response team activity consistently results in the most ligation involving police officers.

    Most disputes involve whether police officers were readily identifiable as LEOs and whether the defendant was justified in defending himself under the circumstances. For example, in State v. Tyler, 251 Kan. 616, 840 P.2d 413 (1992), the Kansas Supreme Court affirmed several convictions arising from a high-risk warrant entry and affirmed the district court's refusal to give a jury instruction on self-defense, but disapproved the trial court's conclusion that a LEO executing a validly issued search warrant cannot be an aggressor within the meaning of K.S.A. 21-3211, a statute allowing reasonable persons to use force to repel an aggressor.

KNOCK AND ANNOUNCE RULE

    The knock and announce rule emanates from the federal statue governing warrant service, 18 U.S.C. § 3109. This statute provides, in relevant part, that officers can break into a house or building "if, after notice of his authority and purpose, he is refused admittance." Although the rule does not technically apply to the states, State v. Tyler, 251 Kan. at 634, it has now been incorporated into the Fourth Amendment reasonableness inquiry.

    In Richards v. Wisconsin, ___ U.S. ___, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court refused to allow states to carve out a blanket exception to knock and announce requirement for felony drug warrant service. Although such searches frequently involve potential threat to officer safety, whether police knock and announce will be one factor considered in determining reasonableness of the search.

    State v. Horn, 15 Kan. App. 2d 365 (rev. denied 248 Kan. 998 [1991]). Police obtained a search warrant authorizing search of premises and "all persons present." Officers announced their presence, heard "scurrying" inside, broke down a door and saw people running to the rear of the house. Money and drugs were in plain view. Horn was caught, a search of his person produced cash, and he was convicted of attempted possession of cocaine. Insofar as the warrant authorized searching all persons present, it was unconstitutionally general because the affidavit did not reflect that drug trafficking was the sole activity of the house; thus, police could not rely on the warrant to search Horn. But the search was lawful under the exigent circumstances exception to the warrant requirement. K.S.A. 22-2509 authorizes the search of persons present during execution of search warrants to prevent the disposal/concealment of anything described in the warrant; this warrant described drugs; police had probable cause the occupants had drugs; and exigent circumstances justified the search. First, officers were executing a valid warrant; the occupants of the premises fled when police announced their presence; and money and paraphernalia were in plain view. These facts and facts supporting the search warrant affidavit indicated that the premises housed past and present trafficking activity, and that the persons present were traffickers. Thus, the Court said, the circumstances justified officers in believing that the fleeing persons could have drugs: "Given that drugs are easily concealed and easily disposed of, the police had reasonable cause after entering the residence to search everyone running toward the back of the house."

    State v. Vandiver, 19 Kan. App. 2d 786 (1994). Officer entered premises pursuant to a narcotics search warrant. After making an immediate arrest, he found six persons playing video games near a bag of marijuana; he also smelled burnt marijuana. Officer patted down the persons and found a 35mm film canister in defendant's pants pocket. Despite admitting that it did not resemble a weapon, the officer removed and opened the canister to see what it was; he found marijuana inside and arrested defendant. The Court ruled that the canister search was illegal; it was not justified by a warrant; defendant's mere presence near the marijuana did not establish probable cause to support an arrest for possession, so the search could not be justified as incident to arrest. Moreover, without probable cause, K.S.A. 22-2509(b). the statutory authorization to search persons present at the scene of a search warrant execution when probable cause and exigent circumstances, such as the need to prevent evidence from destruction, exists; could not justify the canister search. Even had probable cause existed, no exigent circumstances were present. There was no evidence supporting the notion that evidence might be destroyed; no one fled, or attempted to flee, the premises, and no one tried to conceal or destroy anything. To justify a search under K.S.A. 22-2509(b), there must be probable cause and some observable circumstances, such as someone fleeing from police, or an individual acting in a suspicious or furtive manner, in addition to reasonable police determinations that evidence will be destroyed or concealed before a warrant can be obtained.

    Vandiver would probably turn out different today, as long as the officer could believably testify that it was immediately apparent to him, based on his training, education and experience, that the pocket contained contraband. In State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998), the Court held that officers can do a Terry search of a suspect's pockets if there is reasonable or probable cause to believe the nature of the items located therein (usually drugs) is incriminating and this incriminating nature is immediately apparent to the searching officer. Court will consider the totality of the circumstances, including the officer's credibility, training, education and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.

    State v. Tyler, 251 Kan. 616 (1992). In a case involving the killing of an undercover narcotics officer during a raid, the defense claimed that officers used excessive force when they executed their search warrant because they failed to "knock and announce" their identity and purpose. The Court noted that federal statutory provisions subject federal officers to knock and announce requirements, but those provisions don't apply to state officers. It ruled that Kansas has not adopted a knock and announce rule, and that, in this case, the officers' failure to knock and announce before entering the raided premises was reasonable. Only one officer was in uniform, but the others were dressed in raid regalia and other clothing clearly identifying them as officers as they entered. They also announced, again as they entered, who they were and their purpose for being there. The officers also knew a bodyguard, who carried a hammer, would be at the front door and that one person who had been previously seen at the raided premises was known to carry a gun. The Court stated, in conclusion, "Law enforcement officers, especially in narcotics cases, must weigh several factors when deciding how to execute a search warrant. For example, delay could possibly lead to the destruction of evidence and increase the danger to the officers. In this case, based upon the information available to the police prior to the execution of the search warrant, we find the search was reasonable..."

    A final note on warrant entry. Jenkins v. Wood, 81 F. 2d 988 (10^th Cir. 1996), probably defines the outer limits of constitutional warrant service under state law.

    KBI Agents and Topeka Police Department officers were looking for James Jenkins, Jr., for involvement in narcotics. An informant told officers that he had contacted Jenkins, Jr., at what appeared to be an upstairs apartment at 1261 S.W. Clay. A KBI Agent witnessed Jenkins, Jr. descend an external staircase from the second story at the address and conduct a crack cocaine transaction with the informant. In January 1991 Jenkins, Jr. gave Topeka Police Department officers 1261 S.W. Clay as his residential address. About a month later, the informant notified officers that Jenkins Jr. and others took him to 1201 Lincoln where they robbed, beat and interrogated him about "snitching." KBI, Agents obtained search warrants for 1201 Lincoln and what they believed to be an upstairs apartment at 1261 S.W. Clay. KBI Agents and Topeka Police Department officers executed the warrant at about 11:40 p.m. An unidentified member of the Topeka Police Department threw a "flash bang" through the second story entrance while another Topeka Police officer rammed open the second story door. Officers yelled"Police search warrant," upon entering. Jenkins Jr. was not there. Jenkins, Sr. his wife and their daughters were. According to Mr. Jenkins' later testimony, Jenkins, Jr., had not lived in the house for over a year.

    There was no upstairs apartment at 1261 S.W. Clay, though the home did have outside stairs that connected to one of three upstairs bedrooms. Officers secured the residence, including its occupants, while they secured another search warrant covering the whole house.

    While officers were entering, Jenkins Sr. was allegedly making his way up the home's internal staircase and was knocked down the stairs by the flash bang. Jenkins Sr. said officers were screaming and shooting, but no bullet holes were found. Jenkins Sr. ran to grab a shotgun and was met at his downstairs bedroom entrance by an unidentified KBI agent and an unidentified Topeka Police Department officer, who told him to drop the gun, get on the floor, and put his hands behind his back. The officers handcuffed him face-down on the floor at gunpoint. The officers allegedly held Jenkins Sr. at gunpoint, and inquired about his son, Jenkins, Jr, asking where they could find him. After Jenkins Sr. had been on the floor for over twenty minutes, KBI Agent Sabel came down the home's internal staircase and saw Jenkins Sr. on the floor. Sabel examined a driver's license other officers had placed on Mr. Jenkins' back and directed the officers to uncuff Jenkins Sr. and allow him to sit down. Ms. Jenkins told a similar story and said officers ordered her on the floor, but she did not immediately obey the officer because of a back injury. Finally, Mrs. Jenkins got face-down on the floor in a spread-eagle position as the officer advised. She was not handcuffed, but was held at gun point prostrate on the floor for about twenty minutes. At one point, and unidentified officer walked up to Mrs. Jenkins, pointed his gun at her head and said, "You tell me where your son is or I will shoot." Other than to say he was a "real big guy ... kind of casually dressed," Mrs. Jenkins could not identify this officer. While this was occurring, Mrs. Jenkins was growing more concerned about her youngest daughter, who suffered from asthma and was having great difficulty breathing. Mrs. Jenkins pleaded with the officers to let her get up and help her daughter with her inhaler, but one of the officers told Mrs. Jenkins if she didn't shut her "goddamn mouth ... he was going to slap the shit out of her." Some officers searched the downstairs of the residence before arrival of the second search warrant. Damage caused to Mr. and Mrs. Jenkins' home during the search and seizure included kicked-in doors, broken windows, broken furniture, damaged ceilings and walls, burned carpeting, a broken glass piggy bank, a turned over aquarium, a broken stereo, and a destroyed shoe. Jenkins both claimed mental pain and suffering.

    Although the officers and their employers were granted summary judgment for various reasons, the Tenth Circuit Court of Appeals was clearly concerned with the entry team's actions. Concurring in the affirmance, Judge Henry stated:

    I concur in the majority's legally precise disposition. I write separately only to emphasize the apparent inappropriateness of the governmental action in this case, which seems to push the envelope of "reasonableness" under the Fourth Amendment dangerously far.

    The defense of the Kansas Bureau of Investigation and the City of Topeka rests upon the fact that neither Mr. nor Mrs. Jenkins could identify the officer or officers responsible for the egregious conduct that occurred in their home in the middle of the night. The defendants do a good job of pointing the finger at each other, and although this defense is legally successful in this case, it leaves quite a lot to be desired from the standpoint of the Fourth Amendment. Indeed, the district court also expressed its view that the Jenkins "have testified to facts which might support a claim of excessive force against one or more officers executing the search warrant." [Citation omitted]. I agree with the district court's conclusion. The warrant, requested at 10:48 p.m. and executed at 12:30 a.m. [Citation omitted], was served in a fashion that would have almost certainly been illegal under federal statutory law. See 18 U.S.C. 3109 (requiring federal law enforcement officers to announce their authority and purpose prior to breaking doors or windows in the execution of a search warrant); United States v. Stewart, 867 F.2d 581 (10th Cir. 1989) (applying 18 U.S.C. § 3109 to similar facts).

. . .

    The governmental interests served by this commando approach are not apparent.

. . .

    These governmental interests do not outweigh Mr. and Mrs. Jenkins' Fourth Amendment right to be free from flash bang, no-knock, 12:30 a.m., governmental searches of their home. Noting that the standard of review requires this court to examine the factual record in the light most favorable to Mr. and Mrs. Jenkins and extend to them all reasonable factual inferences, the threatening language allegedly used by the police -- "You tell me where your son is or I will shoot." -- gives me further pause. [Citation omitted].

. . .

    Nevertheless, the majority opinion clearly states the law's requirements. I agree with the district court that Mr. and Mrs. Jenkins have "not identified sufficient evidence or pointed to any authority demonstrating that either Wood or Sabel may be liable for the such [sic] acts." [Citation omitted]. Nor have they provided support for their claim that the City of Topeka had a custom or policy of using excessive force in the execution of search warrants. Courts cannot apportion § 1983 liability on a market share basis.

    I believe the defendants would do well to reevaluate their policies (or lack thereof) --whoever makes them and whatever they are -- regarding the use of such tactics in the execution of search warrants. [Citations omitted].

3. MISCELLANEOUS ISSUES

    The degree of force (show of authority) does not necessarily transform a Terry stop into an arrest.

    United States v. Merritt, 695 F.2d 1263 (10^th Cir. 1982). The Tenth Circuit Court of Appeals held a SWAT team's stop of Merritt, a murder suspect believed to be heavily armed, did not constitute an arrest. Merritt drove around a house he was known to frequent and pulled to the curb. He and his passengers crouched down in the vehicle. A patrol car pulled up behind Merritt's vehicle. The officer driving got out, rested a shotgun on top of the vehicle, and ordered the occupants out. Two other officers, both armed with shotguns, took up positions on either side of the vehicle. Merritt and his passengers were ordered to the back of the truck. Within minutes, 6 or 7 police cars and 12-15 officers arrived at the scene. An officer searched the vehicle and found a loaded gun. The court rejected the blanket assertion that such a show of force was so great as to render the Terry stop an arrest regardless of the justification for the degree of force used. The court held the police conduct was justified by the officers' need to protect themselves, and was reasonable under the Fourth Amendment. 695 F.2d at 1274.

    State v. Nugent, 15 Kan. App. 2d 554, 811 P.2d 890 (1991). Suspect argued he was arrested without probable cause, therefore all evidence must be suppressed. Officers were dispatched to an armed robbery in progress and arrived in about two minutes. One officer saw a person vaguely matching the suspect's description sitting in a vehicle in a parking lot with a "worried look" on his face. The vehicle left and the officer stopped the vehicle. The officer exited his vehicle with his shotgun drawn, ordered the suspect on the ground and handcuffed him. After an on-the-scene identification, the officer arrested the suspect and a search incident to arrest yielded clothes the robber was wearing and property taken during the robbery. The court of appeals, following Merritt, rejected Nugent's argument that the officer's actions exceeded the valid scope of a Terry stop. 15 Kan.App.2d at 564.

    United States v. Klein, 93 F.3d 698 (10^th Cir. 1996). Defendant convicted of conspiracy to possess with intent to distribute and distribution of methamphetamine appealed claiming that incriminating statements he made to police should have been suppressed because they were the fruits of an unlawful arrest. Wyoming authorities arrested Dwight David Rogers for his role in shipping a package of methamphetamine from Arizona to Wyoming. After his arrest, Rogers said his supplier was a Phoenix man whom he knew only as "Bruce." Rogers described Bruce as 5'10" to 6' tall with gray-brown hair and of Basque nationality. He explained how he drove to Phoenix, contacted Bruce, and purchased over a pound of methamphetamine from Bruce. Wyoming authorities flew to Arizona to investigate and verified Rogers' story. Officers observed a blue Pontiac Sunbird Rogers had described as the car used by Bruce. The listed owner of the house and the car was Richard West. Officers showed Rogers a photo of West. Rogers said the person was definitely not Bruce. Wyoming police surveilled the house. Officers observed a man in the Sunbird who fit Bruce's description. The officers followed the man to a department store and obtained a backside photograph of him as he entered the store. Rogers, back in Wyoming, identified the car as the one he had seen Bruce drive and identified the house as the one in which he had purchased methamphetamine from Bruce. Rogers thought the photograph of the man looked like Bruce, but could not be sure because of the distance from which it was taken.

    Wyoming officers learned from Arizona officers they had information that a man named Bruce lived at the house and was selling large quantities of methamphetamine. The Wyoming officers could not, however, locate or identify this Bruce. Wyoming officers eventually obtained a search warrant for the house. A women was present and confirmed that a man name Bruce lived at the house and was involved in trafficking methamphetamine. Another woman arrived during the search in the blue Sunbird. She confirmed that Bruce was a big trafficker of methamphetamine. She also said she had switched cars with Bruce and that he was en route to California to make a pickup. During the interview, a man called the house, identified himself as Bruce, and asked to speak with the latter woman. Bruce told her she had forgotten to leave her registration in her car and specified a convenience store at which she was to meet him with the registration.

    The officers got a description from the woman of what Bruce looked like, what he was wearing, and what her car looked like. They relayed this information to a SWAT team, which left to look for the car and Bruce. At this point, the officers still did not know Bruce's last name. Upon arriving at the specified convenience store, the SWAT team identified the woman's car. Though the car contained only a woman, officers observed a man in the store who matched the description given by one of the women at the house. The officers arrested the man and took him to the house. After being advised of his rights, the man identified himself as Bruce Klein and admitted to selling Mr. Rogers over a pound of methamphetamine.

    Held: A warrantless arrest for a felony normally is permissible as long as the arresting officer has probable cause. The proper probable cause inquiry asks whether at the time of the arrest "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense." [Citation omitted]. " '[P]robable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest.' " [Citation omitted]. Defendant's arrest was based on probable cause. The fact that officers did not know defendant's actual identity until after they arrested him does not matter.